LOST should be sunk

Supporters of American ratification of the United Nations Convention on the Law of the Sea (aka the Law of the Sea Treaty, or LOST) tend to spout the following mantra:

1. Ratification of LOST provides critical benefits for America in energy, navigation and other areas;
2. A list of high-profile personages support LOST, including former presidents from both parties, the Navy, the oil industry and others; and
3. Critics are “ideologues” who, acting on a purely knee-jerk suspicion of the U.N., have “hijacked” ratification of LOST and are irrationally preventing the U.S. from taking advantage of this no-brainer.

This last point implies that there are no legitimate reasons to be concerned about the enormously complicated treaty. But name-calling aside, there are numerous risks associated with signing up for LOST, and ample reason to question the urgency with which proponents insist that the United States ratify, lest we lose our “seat at the table” in future deliberations involving the world’s oceans.

First, if the U.S. joins LOST, we risk legitimizing the framework for abusive maritime claims made by rogue nations and rivals for access to shipping routes and natural resources. The common assertion that LOST will provide a legal framework that prevents such nations from making such claims cannot withstand scrutiny. In fact, recent events demonstrate the opposite.

Just last month, Chinese naval vessels harassed and deliberately almost caused a collision with the USNS Impeccable, an unarmed U.S. Navy surveillance vessel, which at the time of the incident was conducting routine operations in international waters 75 miles south of Hainan Island.

How did China justify this behavior? Being a signatory to LOST, China applied its own interpretation of that treaty to expand greatly its territorial sovereignty beyond any reasonable claim, and by extension defined the Impeccable’s conduct as violating Chinese sovereignty vis-à-vis LOST.

Far from curtailing Chinese aggression, the lofty but ambiguous text of LOST provided legal cover for it. Russia has similarly used intentional misinterpretations of the internally defective LOST to claim, without technical merit, expansive jurisdiction over much of the North Pole seabed.

Second, LOST mandates compulsory dispute resolution should a problem arise between two state parties. The “swing” judge on the likely panel would be chosen by either the president of one of the dispute-resolution bodies, or by the U.N. secretary general, neither of whom can be counted on to maintain objectivity when it comes to the United States.

Third, proponents repeatedly claim that the U.S. will be sidelined while the resources of the melting Arctic are divided up among the surrounding nations unless we ratify LOST. This assertion ignores the fact that the U.S. already has a seat at several tables when it comes to the Arctic.

We were one of several countries invited to participate in the Arctic Ocean Conference last year, resulting in a joint declaration affirming the right of participating Arctic nations, by virtue of their “sovereign rights,” to address Arctic resource exploitation. American participation in such forums without having ratified LOST is proof that the U.S. need not do so to engage on the Arctic.

Given these issues, why are so many legislators in Washington failing to raise questions about LOST? Perhaps it is easier for lawmakers to rely on that list of high-profile endorsements than it is to grapple with the very real pitfalls buried in the hundreds of articles and nine annexes that make up this treaty.

The Senate would be well-advised, however, to reflect on the heartburn caused by the American International Group bonuses debacle and, for the sake of national security, read the treaty before casting any votes.

Originally published in print in the Washington Examiner, and online at the San Francisco Examiner

Ben Lerner is Director of Policy Operations at the Center for Security Policy in Washington, D.C. Dr. Peter Leitner is former strategic trade adviser to the Department of Defense, and was a member of the Law of the Sea Treaty delegation in both the Carter and Reagan administrations.