Published May 31, 2012
Before the first witness testified in the opening 2012 Senate Foreign Relations Committee (SFRC) hearing on the 1982 U.N. Convention on the Law of the Sea (LOSC), news and blogosphere outlets witnessed a flurry of opinion pieces summarily praising or condemning the Convention.
One could forgive the American public if they concluded from those posts before the Memorial Day break that the views of the relevant decision makers were already unalterably committed, and that nothing was to be gained from the coming hearings and deliberations. That perception will only reinforce the widely shared view that legislators too-often vote on bills they have never read and do not understand.
The LOS Convention was presented to the Senate in 1994, along with the closely related implementation agreement which modifies that part of the convention dealing with mining deep seabed mineral resources beyond any nation’s jurisdiction.
Under Article II of the Constitution, two-thirds of the Senators present must vote for ratification before the U.S. can become a party. The SFRC voted in 2004 and again in 2007 to recommend ratification (technically “accession” in this case) to the full Senate; however, the committee’s recommendations did not reach a vote by the full Senate on either occasion. In accordance with Senate rules, the committee’s recommendation was recommitted to the committee at the expiration of the congressional term, where it has sat without action for the past five years.
Is nothing to be gained by new hearings and deliberations? While it is true that the Convention has been subject to hearings by the SFRC twice before; most recently in 2007, the membership of the Senate and its committees has changed significantly in the intervening five years, as has the global economic, energy, environmental and security climate.
That climate has changed even more dramatically in the 30 years since the LOSC or "LOST" as it is called by some was completed and opened for signature.
A fresh set of eyes and a new round of witnesses might well identify and be able to address considerations that were overlooked in 2004 and 2007 or that have changed since then.
Those who appreciate the crucial need for public order on the oceans will find much to like in the LOSC, yet some still wonder whether those benefits come at too high a cost. LOSC opponents argue that the empirical record demonstrates that the Convention supporters’ faith in international law and international organizations to protect US rights and interests in the oceans is at best unwarranted.
For their part, the LOSC advocates criticize the opponents for excessive reliance on force to protect those rights and interests.
Somewhere between those two views lies a group who believe that the national interest is best served by a combination of international law and effective and responsible international organizations and the judicious use of all instruments of national power, and they find themselves genuinely undecided as to whether the LOSC strikes an appropriate balance.
So, what stands in the way of a fresh and searching examination of the treaty’s merits; one that might help address those uncertainties? Several factors, none of which should come as a surprise.
Timing—opening the hearings in the fourth year of the president’s tenure and just months before the national elections—militates against a reasoned discussion and debate. If the two presidential candidates take significantly divergent positions on the Convention the prospects for constructive hearings focused on merits instead of party affiliation will be diminished.
It doesn’t help that the Convention’s proponents charged in their opening volleys that the Convention’s opponents are spreading “misinformation” and are driven by “ideology,” “mythology” or a “willful misreading” of the Convention, rather than by their principles, values and a careful weighing of perceived national interests.
Opponents of the Convention, and even the undecided third group, might also be justified in questioning the sincerity of the Administration, particularly when it argues that acceding to the Convention will help us meet our urgent economic and energy security needs by enabling the US to exploit vast oil and gas deposits on the extended continental shelf.
After all, it took intervention by a federal court to end the administration’s moratorium on deep water oil exploration in the Gulf of Mexico, the Administration intervened to block a key oil transport pipeline and at least one senior official in the administration vowed to “crucify” the oil and gas industry.
Assuming that attention can somehow be redirected to the Convention’s merits, any decision on ratification must be grounded in present and reasonably foreseeable future conditions, not conditions or political positions extant in 2005 or 1982. Pundits who purport to channel President Reagan and his views in 1983 should instead be asking themselves what is in the best interests of the United States in 2012 and the years ahead.
The decision to ratify a treaty presents a policy choice. Few choices in life, public policy or foreign relations are wholly favorable or unfavorable. As former Secretary Condoleezza Rice reminded us, we must not let our desire for the perfect blind us to the good.
The question the Senate must answer is whether, on balance, it is in the US interest to ratify the Law of the Sea Convention. Respect for our Constitutional treaty process—to say nothing of our civic responsibility—cautions that we should reserve judgment until the Convention has been given a full and fair hearing on the merits.
To properly assess the Convention’s merits, we have a right to expect that the Senate and the experts it calls to testify in this latest round of hearings will examine and debate some of the following issues:
• What role, if any, should intervening changes in the geostrategic environment (including changed national security, energy, economic and environmental factors) play in deciding whether ratification of this 1982 convention will serve the national interest?
• What changes can we expect in the geostrategic environment in the next 5-10 years and even beyond, and how should that affect today’s decision?
• What role, if any, should the president’s National Ocean Policy, with its ecosystem-based management and “bottom-up” approach to coastal and marine spatial planning, play in our decision regarding the LOS Convention?
• What role, if any, should changing Arctic conditions play in assessing national interests vis-à-vis the LOS Convention? How will our status with respect to the LOSC affect our role on the Arctic Council?
• What conclusions can be drawn about the meaning and effect of the Convention from state practice and tribunal decisions, both before and after its entry into force in 1994?
• Do the proposed 2007 Senate declarations and understandings (which are largely based on Secretary of State Warren Christopher’s 1994 analysis of the Convention) accurately reflect the present U.S. position? Are they consistent with the understandings of other states and relevant international organizations and tribunals? If not, does that pose a risk to U.S. interests?
• Are claims that the U.S. will be able—as a non-party—to enjoy the Convention’s navigation and overflight rights as a matter of customary law theoretically and empirically sound? Will customary law extend those same navigation rights to the growing fleet of U.S. unmanned aerial, surface and subsurface vehicles?
• And, finally, does the Convention include any “deal breakers”—fatal flaws that the U.S. simply cannot accept no matter what how significant the potential benefits of accession?
Supplementing the existing record with answers to these questions will improve the prospects for a responsible decision by the Senate; one consistent with our national interests and in accord with the contemporary geostrategic environment.
Let us hope, therefore, that the next round of hearings relies less on carefully-scripted and conclusory statements of support or opposition by government and industry leaders and more on a searching analysis of the Convention’s 320 articles, 9 annexes and 2 implementation agreements.
Craig H. Allen is the Judson Falknor Professor of Law at the University of Washington and the author of Counterproliferation Operations and the Rule of Law, an extensive examination and defense of the Proliferation Security Initiative. The views expressed are the author’s alone