(Almost) Everyone Agrees: The U.S. Should Ratify the Law of the Sea Treaty

Most of the world follows the convention and the U.S. signed it years ago, but some conservative members of Congress are still blocking it.

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Philippine and U.S. marines during a joint military exercise near disputed areas in the South China Sea. (Reuters)

It is high time the United States joined 162 other states and the European Union in becoming party to the UN Convention on the Law of the Sea (UNCLOS)--thirty years after the Reagan administration first negotiated the treaty.

On May 23, the White House dispatched its big guns to the Senate Foreign Relations Committee, where Senator Kerry is holding hearings on UNCLOS. The message from Secretary of State Hilary Clinton, Secretary of Defense Leon Panetta and chairman of the Joint Chiefs of Staff, General Martin Dempsey, was unequivocal: Acceding to the treaty is profoundly in the U.S. national interest.

That, of course, is the unanimous view of every one of their predecessors, under both Democratic and Republican administrations.

And yet the treaty continues to face stubborn opposition from a vocal conservative minority of purported defenders of U.S. sovereignty, still trotting out long-discredited talking points.

All of the uniformed services--and especially the U.S. Navy--are solidly behind UNCLOS. American military leaders have always been discriminating when it comes to treaties, traditionally resisting those (like the Rome Statute of the ICC) that might put U.S. servicemen and women at risk. But they support UNCLOS because it will enable, rather than complicate, their mission. Because the United States was the principal force behind the negotiation of UNCLOS, it contains everything the U.S. military wants, and nothing that it fears.

The treaty's primary value to the U.S. military is that it establishes clear rights, duties, and jurisdictions of maritime states. The treaty defines the limits of a country's "territorial sea," establishes rules for transit through "international straits," and defines "exclusive economic zones" (EEZs) in a way compatible with freedom of navigation and over-flight. It further establishes the "sovereign inviolability" of naval ships calling on foreign ports, providing critical protection for U.S. vessels. More generally, the treaty allows states party to exempt their militaries from its mandatory dispute resolution provisions--allowing the United States to retain complete military freedom of action. At the same time, the treaty does nothing at all to interfere with critical U.S.-led programs like the Proliferation Security Initiative (PSI). Nor does it subject any U.S. military personnel to the jurisdiction of any international court.

Some have argued that UNCLOS has already become "customary international law," and thus the United States has little to gain from formal accession. But custom and practice are far more malleable and subject to interpretation. Other states may soon push the Law of the Sea into new, antithetical directions if the United States does not ratify the treaty. China, a party to UNCLOS, rejects U.S. interpretations of the treaty's freedom of navigation provisions, and continues to assert outlandish claims to control over virtually the entire South China Sea. But it is hardly alone. Countries as diverse as Brazil, Malaysia, Peru, and India have resisted freedom of navigation within their EEZs, in contravention of their obligations.

As it has for years, the United States Navy regularly conducts Freedom of Navigation Operations (so-called FONOPS) to challenge excessive claims of territorial exclusivity. But as non-party to the treaty, the United States lacks any legal standing to bring its complaints to an international dispute resolution body. More broadly, U.S. Navy and Coast Guard officials complain, non-membership complicates everyday bilateral and multilateral cooperation with scores of international partners.

Presented by

Stewart M. Patrick is a senior fellow at the Council on Foreign Relations (where he writes the blog  The Internationalist) and Director of the Program on International Institutions and Global Governance.

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