The return of piracy to the high seas demonstrates the limits of international law. The “international community” might agree that it is wrong to seize ships for ransom, but a few thugs with guns in Somalia beg to differ. Paper guarantees can do nothing to stop ocean hijackings.
Yet a Democratic administration and Congress are expected to take early action on the Law of the Sea Treaty, the ultimate in paper guarantees. A complex amalgam of ocean-related provisions joined together in one massive agreement, the LOST was first concocted decades ago. Blocked and then renegotiated, the treaty recently won support from a curious coalition ranging from environmental activists to profit-seeking oil companies.
LOST, which essentially creates a second UN, is an artifact of the collectivist “New International Economic Order” popular in the 1970s, but is being resold as a guarantor of freedom of the seas. The convention obviously doesn’t do anything to prevent piracy. Moreover, the recent contretemps between the U.S. and Chinese navies suggests that Beijing hasn’t gotten the memo about the LOST’s navigational guarantees. Rather, the People’s Republic of China argues that the treaty entitles it to restrict American transit in international waters.
Last month, the USNS Impeccable, an unarmed spy ship, was operating 75 miles from the PRC’s Hainan Island, which contains a submarine base. Chinese vessels ordered the U.S. vessel to leave and harassed its operations, causing the U.S. Navy to send in a supporting destroyer.
Territorial waters extend only 12 (nautical) miles, but all nations are empowered to exercise control over resources in the so-called Exclusive Economic Zone, which extends 200 miles. Washington’s position is clear: the American navy is allowed to conduct activities “in waters beyond the territorial sea of another state without prior notification or consent,” according to Department of Defense spokesman Stewart Upton. But Beijing disagrees: “The U.S. claim is totally inaccurate and confuses right and wrong and is unacceptable to China.” A defense ministry spokesman called on the U.S. “to respect our legal interest and security concern.”
Washington would seem to have the better argument, though Beijing’s contention that “peaceful” uses of the ocean do not include spying is plausible. Shen Dingli, director of Fudan University’s U.S. Studies Center, contends that “This is no non-harmfully passing by.”
Most significant, however, is the fact that the LOST fails to offer the clear, unambiguous protection of navigational freedom as claimed by its proponents. What ensured the Impeccable‘s ability to complete its mission was the U.S. Navy’s power, not the LOST’s text.
This is, in fact, a major defect in the case for the treaty. It is true that LOST largely codifies customary international law, which favors free transit. After all, most countries benefit from unrestricted navigation, which encourages global commerce.
However, LOST only offers a paper guarantee. The convention might certify the Impeccable‘s right to spy 75 miles off of China’s Hainan Island, but it does not offer practical protection of the Impeccable‘s right to do so. If the PRC — or Brazil, Malaysia, or Pakistan, which also purport to forbid intelligence-gathering within their EEZs — believes it to be in its interest (and ability) to prevent foreign passage, it isn’t going to spend a lot of time interpreting LOST provisions before acting. Geopolitical interest and military capability, not juridical technicalities, will determine the reality on the high seas. (Ironically, Beijing sends its own survey ships into contested waters claimed by Japan as the latter’s EEZ.)
Washington and Beijing subsequently agreed on the importance of avoiding similar incidents in the future, but the problem is only likely to grow as the Chinese develop a blue water navy. In fact, about the same time PRC ships were harassing the Impeccable, a Chinese vessel was interfering with the operation of another American ship in the Yellow Sea about 125 miles from China’s coast. Last month, Director of National Intelligence Dennis C. Blair told the Senate Armed Services Committee: “In the past several years, they have become more aggressive in asserting claims for the [EEZ] which are excessive under almost any international code.” Despite China’s adherence to LOST.
Although the treaty’s major alleged navigational benefits are more theoretical than real, LOST incorporates significant downsides. Most important, while so-called Part XI governing seabed mining was renegotiated in 1994, the result was only less bad. The system established remains flawed in both principle and practice.
LOST was originally promoted to redistribute wealth from First World democracies to Third World autocracies. The International Seabed Authority would regulate private ocean development, mine the seabed itself through an entity called “the Enterprise,” and pay off favored nations and groups hither and yon. The ’94 amendments changed none of these objectives.
True, the U.S. now at least has a seat (though no veto) on the ISA’s “Council.” Explicit provisions for production controls and technology transfers have gone from clear and clearly bad to ambiguous and only possibly bad. But there are other negatives: U.S. Supreme Court Justice John Paul Stevens believes the treaty, if ratified, will have to be treated by U.S. courts as self-enforcing, that is, creating directly enforceable obligations.
He might be wrong, but treaty proponents are talking excitedly among themselves about the new litigation opportunities created by LOST. Professor William C.G. Burns of the Monterey Institute of International Studies wrote that the convention “may prove to be one of the primary battlegrounds for climate change issues in the future.” In his view, “the potential impacts of rising sea surface temperatures, rising sea levels, and changes in ocean pH as a consequence of rising levels of carbon dioxide in sea water” could “give rise to actions under the Convention’s marine pollution provisions.” Like a good lawyer, he dismissed the argument that the document did not authorize such litigation: “While very few of the drafters of UNCLOS may have contemplated that it would one day become a mechanism to confront climate change, it clearly may play this role in the future.”
Environmentalist activists also look forward with anticipation to using LOST Article 207, which directs countries to “adopt laws and regulations to prevent, reduce and control pollution of the marine environment from land-based sources.” When questioned, treaty advocates claim the provision is merely hortatory, without effect. Yet it already has occasioned litigation between Ireland and Great Britain.
Indeed, Citizens for Global Solutions and the World Wildlife Federation have promoted the convention as a means to stop Russian pollution in the Arctic. They have yet to explain how the convention could bind Russia but not America. In fact, in a private email mistakenly sent to me, one LOST lobbyist warned his colleagues that it would be difficult as a result to allay “conservative fears” of the treaty being “some kind of green Trojan Horse.”
No wonder Bernard Oxman of the University of Miami warned LOST backers to shut up about their plans for the future. He explained: “it is essential to measure what we say in terms of its effect on the goal. Experienced international lawyers know where many of the sensitive nerve endings of governments are. Where possible, they should try to avoid irritating them.”
Finally, the UN’s own Division for Ocean Affairs and the Law of the Sea proclaims that LOST is not “a static instrument, but rather a dynamic and evolving body of law that must be vigorously safeguarded and its implementation aggressively advanced.” If you like activist judges at the national level, imagine what you will get at the international level.
Before the Senate rushes to bind the U.S. through the Law of the Sea Treaty, members should consider the trade-off they are being asked to make. The convention offers paper benefits but imposes real costs. It’s a deal only a pirate could love.
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