TRANSNATIONALISM YOU CAN USE:

LOST at Sea: The Law of the Sea Treaty threatens American sovereignty (John Fonte, 10/29/07, National Review)

The Bush administration and the leaders of the Senate Foreign Relations Committee are pushing ratification of the United Nations Convention on the Law of the Sea (UNCLOS or LOST). The U.N. convention established a transnational institution, the International Seabed Authority, to regulate maritime activities for over 70 percent of the earth’s surface. […]

Let us examine the details. Under UNCLOS, disputes between the United States and other parties are settled by “mandatory” (i.e., forced) arbitration. The final decisions are made either by a permanent International Tribunal for the Law of the Sea in Hamburg or by an ad-hoc court. The Hamburg tribunal consists of 21 judges chosen by member nations, many of them unfriendly to the United States. An ad-hoc court would consist of five judges, two chosen by the U.S., two chosen by the other party. The crucial fifth judge is chosen either by the secretary general of the United Nations or the Hamburg tribunal. The decisions are “final” and “binding” with no appeal.

International-law professor Jeremy Rabkin points out that when the Cambodian communists seized the USS Mayaguez in Cambodian waters in 1975, President Ford responded with military force to rescue American sailors and free the ship. He notes this type of action would be problematic under UNCLOS. For example, if a treaty signatory (e.g., China, Burma) seized a U.S. ship in its home waters, under the terms of Law of the Sea Treaty, the U.S. could not free her sailors by force, but would have to submit to mandatory arbitration by the Hamburg tribunal or an ad-hoc court, where the U.S. could very likely lose the case. In any event, vital decisions over American security and American lives would not be made by Americans, but by foreign judges, many of them unsympathetic to American interests (coming as they often do from third-world regimes or EU legal elites).

Supporters argue that member states can claim an exemption from binding arbitration for “military activities.” In addition, they point out that the U.S. will attach a special “understandings” to the treaty stating that any interpretation of what constitutes “military activities” will be “defined by the United States.”

The free trade regime, despite its being transnationalist, is fundamentally a project of conservatives, who understand the usefulness of binding other nations to rules that serve our purposes even if it means sacrificing some sovereignty in a discrete area. Obtaining a universal law of the sea serves similarly useful ends and, most importantly, while we would use it as a pretext for war against an enemy who violated it, no one could enforce it against us.