Event Summary: Should the United States Ratify the Law of the Sea Treaty?

May 4, 2004

Senator Richard G. Lugar (R-Ind.) urged the Senate Tuesday to ratify the Law of the Sea treaty that governs the use of the world’s oceans, calling objections to the treaty both “vague and sometimes fantastical” and based on “ephemeral conservative concerns that boil down to a discomfort with multilateralism.”

“We are hurting no one but ourselves by failing to exploit this hard-earned diplomatic victory,” Lugar said in a speech at the Brookings Institution.

The treaty has been ratified by more than 140 nations and took effect in 1994. It provides guidelines for navigation, use of airspace, exploitation of ocean resources, and protection of the marine environment. On February 25, the Foreign Relations Committee, which Lugar chairs, unanimously recommended that the full Senate ratify the treaty. The Bush administration has placed it on its list of “urgent” treaty priorities. The treaty also enjoys near-universal support from the international community, environmental groups, and industrial representatives.

But a small group of conservative Senators, citing concerns about the treaty’s effect on U.S. sovereignty, have asked for a delay in the vote, and neither the Republican leadership nor the administration seems inclined to press the issue during this session.

Lugar admitted that multilateral agreements can occasionally raise valid questions about national sovereignty, but such concerns weren’t applicable in this particular instance given the unique nature of governing large bodies of water.

“There is no unilateral option with regard to ocean policy,” Lugar said. “The high seas are not governed by the national sovereignty of the United States or any other country. If we are to establish order, predictability, and responsibility over the oceans—an outcome that is very much in the interest of the United States—we have to engage with other countries.”

Both critics and supporters of the treaty believe that failure to adopt their position would threaten U.S. national security and sovereignty—just in different ways.

After Lugar’s speech, a panel of experts debated the pros and cons of the treaty. The session was moderated by Brookings Guest Scholar David Sandalow.

David Balton, deputy assistant secretary for oceans and fisheries at the U.S. Department of State, maintained that U.S. sovereignty would not be impinged by the treaty. “As party to the convention, the United States would be best suited to protect our national interests,” Balton said. “Only as a party can the United States do anything or have any control… This is too good a deal to pass up.”

Frank Gaffney, president of the Center for Security Policy, argued that the U.S. had the “deck stacked against us” in the Law of Sea treaty. He said that U.S. adherence to international rules regarding navigation would restrict the U.S. Navy and, most notably, the ongoing war on terror.

“This will be a considerable detriment to our security,” Gaffney said. “Several provisions restrict us from doing things we have to do on the war on terror.”

Rear Admiral William L. Schachte, Jr. (Ret.) said such concerns were “flat out wrong.”

“It is a hollow argument to state that if we were party to the convention that we’d somehow be saddled with impediments to our ability to do these operations or these works,” Schachte said. “We will never be prohibited from doing anything as we need to do with regards to our national security. We’re going in to help define what the situation is and to have a role of leadership.”

In a rare alliance, Clifton Curtis, director of the World Wildlife Fund, and Genevieve L. Murphy, senior manager at the American Petroleum Institute, both voiced support for Senate ratification of the treaty.

Curtis was careful not to give the treaty a perfect score on environmental issues, but said it “serves as a flagship for addressing a diverse mix of marine issues within one legally-binding, effective, multilateral framework.”

Murphy said the treaty would “maintain the U.S. role in shaping and directing international maritime policy.”

But Peter M. Leitner, a former observer to the U.S. Law of the Sea delegation from 1977 to 1982, expressed concern that the convention would create a “super government” that would limit U.S. options. “Our role at the table would be one casting vetoes to stop an overwhelming tide that will sweep us over,” Leitner said.