Ocean Treaty Good for U.S.

David B. Sandalow
David Sandalow, Inaugural Fellow, Center on Global Energy Policy, School of International and Public Affairs, Columbia University
David B. Sandalow Former Brookings Expert, Inaugural Fellow, Center on Global Energy Policy - School of International and Public Affairs, Columbia University

May 16, 2004

Sen. Dick Lugar, Indiana Republican, displayed his trademark patience at the Brookings Institution May 4, carefully laying out the case for Senate action on the Law of the Sea treaty and taking questions from even his harshest critics.

Columnist Frank Gaffney, who has stirred opposition to the treaty since it was approved unanimously by the Senate Foreign Relations Committee in February, asked Mr. Lugar if the Senate Foreign Relations Committee would hold yet another hearing on the treaty.

Mr. Lugar, whose chairmanship of Foreign Relations wins the sort of bipartisan praise all too rare on Capitol Hill these days, characteristically refused to rule out even this unusual suggestion (how often has Foreign Relations held a hearing on a treaty after recommending Senate approval?). But Mr. Lugar noted Mr. Gaffney can state his views before a number of congressional committees.

I moderated the following dialogue which left the impression that the mini-debate over the last month about the Law of the Sea treaty reflects a generalized concern about multilateral organizations far more than specific concerns about this agreement.

Mr. Gaffney said he is “not an expert” on the Law of the Sea treaty and that “common sense” leads him to oppose it. Repeating arguments he made in an article on the Commentary pages of The Washington Times (“LOST at Sea,” May 4), he argued the treaty is a troubling step toward world government.

While Mr. Gaffney’s general comments on multilateral organizations could (and do) provoke lengthy dialogue among foreign policy specialists, it is difficult to seriously credit his specific critique of the Law of the Sea treaty.

Mr. Gaffney argues, for example, that Articles 19 and 20 of the treaty prohibit intelligence-gathering and require submarines to navigate on the surface in coastal waters.

This argument is based on a simple misreading of the relevant provisions, which neither prohibit nor require any activities but simply establish conditions for invoking the “right of innocent passage.” As Adm. Vern Clark, chief of naval operations, said March 18, the Law of the Sea treaty “supports U.S. efforts in the war on terrorism by providing important stability and codifying navigational and overflight freedoms, while leaving unaffected intelligence collection activities.”

The case for U.S. ratification of the Law of the Sea treaty is straightforward:

  • The treaty protects our national security. By improving access and transit rights for our ships, aircraft and submarines, the Law of the Sea treaty facilitates timely movement of U.S. forces throughout the world. Adm. Clark and all living former chiefs of naval operations have endorsed the treaty. Gen. Richard B. Myers, chairman of the Joint Chiefs of Staff, wrote last month the treaty “remains a top national security priority.”

The treaty protects our commercial interests. Provisions on coastal state control of the continental shelf, for example, help provide the certainty crucial to capital-intensive deepwater projects. The American Petroleum Institute, the International Association of Drilling Contractors and the National Ocean Industries Association have all called for treaty approval.

The treaty protects the ocean environment. Provisions addressing marine pollution and fisheries help promote conservation of scarce marine resources. The World Wildlife Fund, National Environmental Trust and Oceans Conservancy, among others, support the agreement.

These factors have led the Bush administration not only to support the Law of the Sea treaty, but to identify it as one of only five treaties for which Senate approval is “urgent.” Officials from the Navy, Coast Guard, Office of the Secretary of Defense, State Department and Commerce Department have all testified in support of ratification.

(While the Bush-Cheney campaign criticizes Sen. John Kerry for equivocating and changing positions, anything less than continued and tightly disciplined support for the agreement by the Bush administration in the months ahead would open the president to similar criticism, for uncertain political gain.)

Why is Senate approval “urgent”? In part because the treaty is open for amendment for the first time this November. Nations will then be able to propose amendments that weaken provisions important to the U.S.

As Mr. Lugar said May 4, the Law of the Sea treaty would prohibit countries from excluding nuclear-powered submarines from their territorial waters. The U.S. will be much better able to keep it that way as a treaty party instead of an outsider.

Retired Adm. James Watkins, appointed by President Bush as chairman of the U.S. Commission on Ocean Policy, recently explained why the commission unanimously supports U.S. ratification of the Law of Sea treaty. “There are many important decisions being made right now within the framework of the convention,” he wrote. “Until we are a party to the convention, we cannot participate in the many bodies established under the convention that are making decisions critical to our interests.”

Mr. Gaffney—always an articulate advocate—closes his recent opinion piece on the Law of the Sea treaty with references to the oil-for-food scandal and recent comments by Lakhdar Brahimi on using force, issues no more than loosely related to the Law of the Sea.

As tempting as it may be to make this agreement a Rorschach test for broader debates on multilateral organizations, senators should resist that temptation. In exercising their solemn constitutional responsibility to provide advice and consent to U.S. ratification of the Law of the Sea treaty, senators should ask a simple question: Does this treaty serve the national interest? The answer is yes.