Another Premature "Mission Accomplished": Law of the Sea Treaty Still Seriously Flawed

David A. Ridenour

9/26/2007 6:04:08 PM - David A. Ridenour

President George W. Bush has declared the Law of the Sea Treaty a victory of U.S. foreign policy and is lobbying the Senate to ratify it.

But, like the President's USS Abraham Lincoln pronouncement about Iraq, it's far too early to declare "mission accomplished."

While conceding that the treaty as originally formulated in 1982 had serious flaws, treaty proponents claim intense negotiations concluding in 1994 fixed them all. Unfortunately, they did not.

Former Secretary of State Lawrence Eagleburger and University of Virginia Law Professor John Norton Moore, for example, claimed in an article in The Washington Post that the treaty would vastly extend U.S. control over ocean resources by establishing 200-mile Exclusive Economic Zones.

They're wrong.

First, U.S. control over such resources already exists under U.S. law and customary international law. President Truman's Executive Order 9633 and Proclamation 2667 asserted U.S. jurisdiction over continental shelf resources in 1945; the Fisheries Conservation and Management Act of 1976 established a U.S. conservation zone of 200 miles; and Ronald Reagan's 1983 Proclamation 5030 explicitly established a 200-mile Exclusive Economic Zone. Further, the 200-mile economic zone standard is already embedded in international law, included in the 1952 Santiago Declaration, the 1972 Declaration of Santo Domingo, and the 1973 Addis Ababa Declaration, among others. It's what one might call the industry standard.

Second, the U.S. does not need to participate in the treaty for its economic zone to be honored. The treaty establishes a code of conduct for its 154 member states toward other nations, regardless of whether they are parties to the treaty.

Then there's the oft-repeated assertion that treaty would not further impede submerged transit nor compromise U.S. security.

William H. Taft, IV, who served as State Department legal advisor, argued that the "Convention makes no change in the situation that has existed for many years" because the treaty's surfacing requirements are similar to those contained in the 1958 Convention on the Territorial Sea and Contiguous Zone.

This, too, in incorrect.

While the language in the Law of the Sea Treaty and the 1958 treaty are similar, there is one very significant difference – the Law of the Sea Treaty extends submarine surfacing requirements to "other underwater vehicles." This would apply to un-manned vehicles used in mine detection, rendering them ineffective and leaving ships vulnerable to mines by rogue states or terrorist organizations.

Deputy Secretary of State John Negroponte and Deputy Secretary of Defense Gordon England argued in the Washington Times that the Law of the Sea Treaty would improve protections for the environment.

It could do the opposite.

The treaty requires states that cannot harvest the entire allowable catch in certain areas to make the surplus available to other nations, especially developing nations. Since the treaty makes re-acquiring harvest rights challenging once surrendered to a developing nation, coastal nations may seek to use the entire catch by whatever means are necessary. This may contribute to damage of marine resources.

Proponents of the treaty have also dismissed critics' concerns that it would subject the U.S. to judgments of the International Tribunal of the Law of the Sea (ITLOS), a body unlikely to render decisions favorable to the U.S. due to its composition. John F. Turner, who served as an Assistant Secretary of State, claimed that "parties are free to choose other methods of dispute resolution."

Not entirely true.

When provisional measures – similar to temporary injunctions -- are demanded, the disputing parties must agree to a method of adjudication within two weeks or the case is automatically sent to ITLOS. Such an outcome would be likely, for example, if the U.S. seized an Iranian ship believed to be transporting terrorists or WMD.

Finally, Eagleburger and Moore have claimed that the treaty would facilitate oil and gas development.

It likely would make such development even more difficult.

The treaty requires states to "prevent, reduce and control pollution of the marine environment," including "through the atmosphere," providing environmental activists with ample opportunities to file legal challenges, including on the grounds that the oil and gas contribute to global warming, threatening biologically-important and sensitive coral reefs.

What is needed is an honest and open discussion about the implications of the Law of the Sea Treaty – warts and all. The Bush Administration and its proxies need to be candid about what it sees as the key weaknesses of the treaty as well as it strengths.

One lesson of the Iraq conflict is that overselling the benefits of action in an effort to blunt criticism can be dangerous in the long run. This is a lesson the White House and other treaty proponents apparently still haven't learned.