The Law of the Sea Treaty:
A Bad Deal for America
Friday, June 01, 2007
By Jeremy Rabkin
EXECUTIVE SUMMARY
The Third United Nations Convention on the Law of the Sea (UNCLOS III) was negotiated in the late 1970s, an era when Third World nations looked to the U.N. to distribute resources from rich to poor nations. President Reagan rejected American participation in the 1980s. Slight changes introduced in the 1990s persuaded the Clinton Administration to endorse the treaty. The Bush Administration, perhaps because it is eager to improve its internationalist credentials, has also endorsed the treaty. But it remains a bad deal for the United States.
The Law of the Sea treaty does not simply set rules for commercial activity beneath the high seas. It establishes a new international tribunal and new international bureaucracies to interpret and apply a wide range of rules for activities on the seas—and to proceed with such rules even against U.S. objections. It threatens to introduce international legal complications into national security missions of the U.S. Navy. It threatens to complicate not only deep-sea mining—if it ever becomes a realistic commercial prospect—but also fishing and other commercial activities at sea and perhaps even on adjacent lands. Above all, it sets a very bad precedent.
In the past, the United States has jealously guarded its national sovereignty. It has never agreed to treaties under which new standards can be imposed, without express U.S. consent, by the decision of international bureaucrats or by coalitions of hostile—and potentially hostile—nations. What the United States does do in many areas it should do in regards to this treaty—assert its rights under customary international law. The Law of the Sea treaty is not necessary to secure claims which the U.S. already makes on this basis (regarding economic rights in U.S. coastal waters and rights of passage elsewhere). It is a dangerous concession to international fashion to accept the idea that U.S. rights are dependent on the approval of shifting majorities of other nations.
JEREMY RABKIN is professor of law at George Mason University School of Law, having been for 27 years previous a professor of government at Cornell University. He holds a Ph.D. in Government from Harvard University and a B.A. from Cornell. He has published widely in newspapers and journals, including the Harvard Journal of Law and Public Policy, the Stanford Law Review, the Washington Post, the Wall Street Journal, the Weekly Standard, and the Claremont Review of Books. He has also written several books, including Why Sovereignty Matters
, The Case for Sovereignty
, and Law Without Nations?
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