Why the Law of the Sea Treaty Hurts America

On Friday, the U.S. House of Representatives approved an amendment to the National Defense Authorization Act for Fiscal Year 2013 that bans federal funds from being used to implement the Law of the Sea Treaty.

The amendment, offered by South Carolina Republican Jeff Duncan, is a much-needed “shot across the bow” aimed at the U.S. Senate, where consideration of the treaty will begin again on May 23.

The Law of the Sea Treaty, or LOST, is an international accord that has been around in various forms since Ronald Reagan was president. When it was finally completed in 1982, Reagan refused to sign it because it included provisions that were contrary to long-term U.S. economic and strategic interests. After a decade of continued negotiations attempting to address those concerns, Bill Clinton signed it but it has never been ratified by the Senate as the U.S. Constitution requires.

The treaty is a direct attack on U.S. sovereignty. Defense Secretary Leon Panetta and others in the Obama Administration are nonetheless urging the Senate to approve it.

Supporters of ratification argue that the treaty establishes “rules of the road” for international waters. Since it was modified in 1994, a total of 161 countries and the European Union have signed on – but the United States has consistently withheld its final approval.

Panetta thinks now is the time for the U.S. Senate to approve the treaty, and cites the need to check Chinese maritime aggression as the reason. So does Sen. John F. Kerry, the Massachusetts Democrat who chairs the Senate Foreign Relations Committee. The argument Panetta makes is that it will give the United States a needed lever against the Chinese, who are behaving in an increasingly menacing manner in the South China Sea, a major international trading route. Moreover, it is being offered up as a kind of parting gift to Indiana Sen. Richard Lugar, the ranking Republican on the Foreign Relations Committee who has long sought its ratification and who was recently defeated in his bid for renomination for another term.

Wanting to do something to honor another senator is an admirable sentiment, but not at the risk of U.S. naval strength. Ratification of LOST would produce a forceful change in American policy dating back over two centuries that holds that a strong United States Navy is the best guarantor of freedom of the seas. Under LOST, the responsibility for preserving freedom of the seas would be transferred to a United Nations body empowered to resolve conflicts before they become shooting wars. We’ve been down that road before, and it did not lead to peace.

During the period between the First and Second World Wars, the global powers developed a series of treaties intended to prevent war. From the Treaty of Versailles which ended World War I, to the Kellogg-Briand Pact which outlawed war entirely, to a series of naval weapons limitation treaties, the United States, Japan, and the European powers placed their hopes for peace on a set of agreements that were supposed to produce a balance of naval power that would make it disadvantageous for the signatories to go to war.

As history demonstrates, those efforts were futile. The democratic states abided by them while the dictatorships in Germany, Italy and Japan did not. They cheated in ways that were fully apparent - but the world turned a blind eye to their dishonesty. This left the democracies at a distinct disadvantage and ill-prepared when war eventually came.

It was only by luck, for example, that the Japanese Navy failed on December 7, 1941 to annihilate even more of the U.S. Pacific fleet at Pearl Harbor because the Pacific-based aircraft carriers were not in port at the time Japan launched its surprise attack.  The naval arms limitation treaties had lulled the U.S. into a false sense of security – even as the War Department gamed out plans for war with Japan. It was only after several years and the application of the industrial might of the United States to build new capital ships, ships that might have already been at in service save for the agreements, that victory was assured.

Peace, as Ronald Reagan famously said, is best be secured through strength. Placing our trust in international agreements governed by bureaucratic global bodies whose representatives may not adhere to democratic values is to risk disaster. The Law of the Sea Treaty, as an effort to police the maritime waterways and establish a code of behavior, harkens back to the agreements that gave cover to those whose belligerence eventually led to the Second World War. America must rely upon itself, not international bodies under the United Nations.

Is it not foolish to believe, as Panetta suggests, that Senate ratification of the treaty would produce a change in the behavior of the Chinese or the navy of any other country? As its supporters point out, the terms of the treaty have been in force for nearly a decade yet the Chinese, who are signatories, are even now behaving in ways that run counter to its restrictions. Why should the U.S. make itself a full party to a treaty the Chinese ignore when it is in their interest to do so?

The Senate should reject the treaty if it comes up for a vote on the Senate floor. The approval of the Duncan Amendment is a strong endorsement of the sentiment against it. To assume that LOST would secure “freedom of the seas” better than a strong U.S. Navy is a naïve and dangerous proposition, a choice that this former Navy officer thinks the nation should not make.