The Old Isolationism and the New Law of the Sea: Reflections on Advice and Consent for UNCLOS
by: David J. Bederman
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January 18, 2008
49 Harv. Int'l L. J. Online 21 (2008)
David J. Bederman is a Professor of Law at Emory University.
A conservative president, generally hostile to United States participation in international institutions and foreign entanglements, nevertheless expressly requests the Senate to give its advice and consent to a treaty with broad implications for the development of international law. A variety of national business and commercial interests, as well as domestic organizations devoted to global peace and development, also support the ratification of the convention. Scores of former government officials, military leaders, and their cohorts from civil society endorse the treaty. But, in reaction to the claims made by an “elite” foreign policy establishment, Wall Street, and the White House, concerns in the heartland are raised about the U.S. abandoning its sovereignty if it were to join the new international regime.
Rhetoric escalates, and even begins to impact the early stages of the next presidential election. Fears of compromising American exceptionalism and surrendering to foreign or international authority pervade the public discourse. What first appeared to be a piece of foreign policy housekeeping – ratification of a treaty fully consistent with the national interest – becomes, instead, a debate for the heart and soul of American foreign policy and a reflection on our place in the world.
A “ripped-from-the-headlines” summary of today’s discussions about ratification of the 1982 U.N. Convention on the Law of the Sea (UNCLOS)? Not entirely. Rather, it is as much a memoir of two earlier incidents in U.S. diplomatic history, each of which was formative in the creation of a uniquely American apotheosis of isolationism in reaction to participation in international institutions. The first was the Senate’s consideration of the Jay Treaty in the summer of 1795. The president was George Washington, and one of the more controversial provisions of the treaty with Britain was the referral of outstanding claims between the two countries to arbitral tribunals that could issue binding decisions (particularly regarding the payment of private prewar debts owed by Americans to British merchants that previously could not have been collected in U.S. courts). The opposition party, led by Thomas Jefferson, was against the pro-British (and anti-French) commercial aspects of the treaty. Despite the fact that the Senate voted to approve the treaty (and the House later voted to fund obligations under the treaty), when Jefferson became president in 1801 relations with Britain turned frosty, leading ultimately to the disastrous War of 1812. U.S. resistance led to at least one of the arbitral tribunals never finishing its business.
The second incident is of more recent vintage. In 1919, at the conclusion of the First World War, President Woodrow Wilson negotiated the Treaty of Versailles, which created the League of Nations. Wilson’s defeat in the Senate, where many debilitating reservations were applied to the treaty, is a well-known cautionary tale for many students of international legal history. Less remembered is that in the decades following, the Senate had the opportunity to consider U.S. membership as an adherent to the Permanent Court of International Justice (PCIJ), the forerunner of today’s World Court. Even during the administrations of Presidents Harding and Coolidge – neither partisans of the internationalist wing of the Republican Party or great fans of international institutions – there was support for the U.S. to join the Court and agree to submit certain kinds of international disputes to its jurisdiction. Nevertheless, public opinion swayed a blocking third of senators to oppose the protocol of accession to the PCIJ Statute. Concerns over a diminution of American sovereignty ultimately carried the day, part and parcel of a wave of isolationist sentiment that dominated U.S. politics and the conduct of foreign affairs until December 7, 1941.
Both of these earlier incidents involving U.S. engagements with international institutions resonate today, in part, because of the caustic political environment that motivated contemporary American political discourse and the later vindication of internationalist ideals.
The Senate’s current consideration of the 1982 UNCLOS is shaping-up to be another such defining moment. It has the potential to define not only U.S. oceans policy for the years to come but also, more importantly, the tenor of this nation’s attitudes towards international regimes. It is worth examining the contours of the debate, and the role of international law and international legal argumentation in the councils of power.
A starting-point for the discussion is President George W. Bush’s statement of May 15, 2007 in support of UNCLOS:
I urge the Senate to act favorably on U.S. accession to the United Nations Convention on the Law of the Sea during this session of Congress. Joining will serve the national security interests of the United States, including the maritime mobility of our armed forces worldwide. It will secure U.S. sovereign rights over extensive marine areas, including the valuable natural resources they contain. Accession will promote U.S. interests in the environmental health of the oceans. And it will give the United States a seat at the table when the rights that are vital to our interests are debated and interpreted.
In five nicely crafted sentences, the White House makes the foreign-establishment case for joining this treaty system. There is, in fact, something for everyone in UNCLOS and in the President’s statement of support: strengthening national security and the ability of our armed forces to project power around the world, access to natural resources of the ocean, and a commitment to environmental protection.
But it is the last sentence that is of interest here. The president is reflecting on a process-oriented vision of U.S. participation in an international regime. A “seat at the table,” is a homey metaphor for on-going, consistent engagement in the institutions and mechanisms of diplomacy and international law-building. In recognizing that these processes involve “debate” and “interpret[ation],” the Administration acknowledges that a unilateralist approach to a system of governance for the world’s oceans would be futile and counter-productive. At stake is nothing less than this country’s rights under a regime that is “vital to our interests.”
President Bush frames our engagement as being not for the sake of some inchoate and abstract goal of international harmonization for cooperation’s sake, but, rather, for the vindication of the national interest. That is as it should be.
And this expression of the national interest has been the precise locus of the isolationist backlash against UNCLOS. Treaty opponents have been unable to mount a serious challenge to the underlying substantive policy goals in favor of ratification of the Convention by the United States. The ability of the U.S. Navy to project power, under its Freedom of Navigation (FON) program as part of UNCLOS, has received a lot of negative attention of late, as coastal states (especially archipelagic nations and those bordering strategic straits) have renewed attempts to limit access by constraining the doctrines of innocent and transit passage under UNCLOS.
Treaty opponents have cleverly argued that there is no need for the U.S. to ratify UNCLOS because all of its FON provisions are already reflected in customary international law (CIL). The problem – as recognized by the Pentagon – is that CIL formulations for FON are largely derived from the state practice following the 1958 Geneva Conventions (to which the U.S. is a party). It is not a credible international legal position, however, to rely on CIL frozen-in-time nearly a half-century ago. In order for the U.S. to effectively object to improper impositions of navigation interferences by coastal states, there must be a baseline (both literally and figuratively) of state behavior – and that standard is UNCLOS.
Likewise, with $100-a-barrel oil prices and nearly one-third of all the world’s hydrocarbons being produced off-shore, it would be folly for the U.S. to ignore the need for access to extended outer continental shelf (OCS) oil and gas resources. The great irony of the U.S. debates over the Law of the Sea Convention is that for years (since the Reagan Administration rejected the treaty in the early 1980s) we have been focusing on the wrong seabed resources.
Although the original UNCLOS was rightly rejected because of its absurdly drafted provisions on the mining of manganese nodules (including the creation of an international mining consortium, known grandiloquently as “The Enterprise”), UNCLOS has relatively fewer provisions on such ocean resource activities as lifting oil and gas reserves beyond 200 nautical miles, mining polymetallic sulfides and other exotic substances found at mid-ocean ridges, bio-prospecting the unique flora and fauna of the ocean abyss, and salvaging historic shipwrecks. That the United States might extend its Arctic continental shelf off Alaska as far out as 350 nautical miles has the oil industry – and Alaska’s Senate delegation – salivating at the possibilities. But that extension would only be possible if the U.S. accedes to UNCLOS and files a claim before the U.N. Commission on the Limits of the Continental Shelf. [THIS IS NOT TRUE]
Projection of naval power and gaining access to ocean resources have been two, central organizing themes of the development of the Law of the Sea over the past 500 years. There has also always been a sense that the evolution of these norms should not simply be left up to a Hobbesian (or Darwinian) struggle in a state of nature.
Major developments in the Law of the Sea’s history – whether Grotius’s famous 1609 treatise Mare Liberum, or the Truman Proclamations of 1945 – have been predicated on international legal argumentation, not just bald assertions of authority and power. But, insofar as contemporary critics of UNCLOS have focused on the institutional and dispute-settlement aspects of the treaty, those tenets of cooperation and the rule of law are being challenged at a level of rhetorical hostility that is virtually unprecedented.
Phyllis Schlafly has this to say about UNCLOS:
LOST [the “Law of the Sea Treaty”] is the globalists’ dream bill. It would put the United States in a de facto world government that rules all the world's oceans under the pretense that they belong to “the common heritage of mankind.” That's global-speak for allowing the United Nations and its affiliated organizations to carry out a massive, unprecedented redistribution of wealth from the United States to other countries. . . .
LOST has already created the International Seabed Authority (ISA) and given it total jurisdiction over all the oceans and everything in them, including “solid, liquid or gaseous mineral resources.” LOST even gives the ISA something the UN bureaucrats have lusted after for years: the authority to impose international taxes (disguised by euphemisms such as fees and royalties).
LOST would subject our governmental, military and business operations to mandatory dispute resolution by the International Tribunal for the Law of the Sea in Hamburg, Germany. If you think activist judges in the United States are out of control, wait till you try your case before this UN tribunal, whose decisions cannot be appealed. . . .
The best protection for U.S. interests in the world’s oceans is the U.S. Navy, which should not and must not be subject to orders or regulations made by paper pushers in the ISA or rulings of the International Tribunal. U.S. access to the high seas, as well as freedom of the seas for all countries, is best protected by a great U.S. Navy, not a UN bureaucracy financed by a global tax.
All of the ingredients for isolationist rhetoric are apparent from this piece: a jot of American antipathy of international regulation and bureaucracy, a dash of distrust of foreign judges, a hefty slice of jingoism, all leavened with a pinch of paranoia. This style of discourse has been repeated not only in public opinion pieces (as in this example), but also in Senate testimony.
Those who practice and profess international law should be profoundly grateful for this political moment. We can (and must) seek to inform the public about the realities of the institutional and dispute-settlement regimes in UNCLOS.
The truth is, of course, that UNCLOS has relatively weak features in this regard, especially compared with such institutions as the WTO. The International Tribunal for the Law of the Sea (ITLOS) will have virtually no docket of cases, aside from applications for prompt release of vessels and crews and the occasional matter regarding fishing rights. [WITH DUE RESPECT, THIS IS AN OVERSIMPLIFICATION WITHOUT FOUNDATION]**
The vast majority of disputes under UNCLOS will be resolved by ad hoc arbitrators, hand-picked by the parties. Likewise, the International Seabed Authority (ISA) is likely to be a rather sclerotic organization, given its limited mandate (with the modifications made to Part XI in 1994) until such time (if ever) that deep seabed mining for manganese nodules has even the remote prospect of profitability. [WITH DUE RESPECT, THIS IS AN INACCURATE ASSESSMENT - ITSSD RESEARCH SOON TO BE PUBLISHED WILL BEAR THIS OUT]***
Ironically, the work of one UNCLOS institution that does bear attention – the Continental Shelf Commission, which is the technical body that will rule on any U.S. application to extend its claims in the Arctic – has not yet been fully evaluated. As for the “international tax” that the ISA will assess on continental shelf oil and gas production beyond 200 nautical miles, that provision, ironically, was based on a proposal made by the Nixon Administration as an alternative to the cumbersome regime for manganese nodules. [THIS IDEA LIVES ON IN MORE RECENT UNITED NATIONS REFORM PROPOSALS - SOON-TO-BE PUBLISHED ITSSD RESEARCH BEARS THIS OUT]**
In addition to making the lawyerly arguments that are necessary to explain UNCLOS’s institutional and dispute-settlement provisions, we should also be prepared to defend the very principles of functional cooperation and the progressive development of international law. [KUMBAYA 'GO-ALONG-TO-GET ALONG'ISM]**
We should not be embarrassed at the prospect that the effectiveness and legitimacy of such rules, processes and institutions are being questioned or challenged. Rather, secure in the knowledge that – at least with U.S. ratification of UNCLOS – the value of international cooperation actually supports and enhances the national interest, we should go forth, take the intellectual and policy high ground, and do battle with the forces of isolationism.
 United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter UNCLOS].
 Treaty of Amity, Commerce, and Navigation, Nov. 19, 1794, U.S.-Gr. Brit., 8 Stat. 116, 12 Bevans 13.
 See Thomas H. Lee, The Supreme Court of the United States as Quasi-International Tribunal: Reclaiming the Court’s Original and Exclusive Jurisdiction Over Treaty-Based Suits by Foreign States Against States, 104 Colum. L. Rev. 1765, 1783, 1855–60, 1862–66 (2004); 1 Richard B. Lillich & Burns H. Weston, International Claims: Their Settlement by Lump Sum Agreements 26–27 (1975).
 Treaty of Peace with Germany (Treaty of Versailles), June 28, 1919, T.S. No. 4, 2 Bevans 43.
 Statute of the Permanent Court of International Justice art. 36, Dec. 16, 1920, 6 L.N.T.S. 390.
 See Myres S. McDougal & Asher Lans, Treaties and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy: II, 54 Yale L.J. 534, 567–68 (1945). See generally Denna Frank Fleming, The United States and the World Court, 1920-1966 (1945); Michael Dunne, The United States and the World Court, 1920-1935 (1988).
 See, e.g., Roger P. Alford, The American Influence on International Arbitration, 19 Ohio St. J. on Disp. Resol. 69, 72 (2003) (“If the Jay Treaty was much maligned then, it is much beloved today. The arbitral commissions established under the Jay Treaty were the beginning of the modern era of international arbitration.”).
 President’s Statement on Advancing U.S. Interests in the World's Oceans, 43 Weekly Comp. Pres. Doc. 635 (May 15, 2007), available at http://www.whitehouse.gov/news/releases/2007/05/20070515-2.html.
 See J. Ashley Roach & Robert W. Smith, United States Responses to Excessive Maritime Claims 15–16 (2d ed. 1996); George Galdorisi, The United States’ Freedom of Navigation Program: A Bridge for International Compliance with the 1982 United Nations Convention on the Law of the Sea?, 27 Ocean Dev. & Int’l L.J. 399 (1996).
 For archipelagic sea-lanes passage, see UNCLOS, supra note 2, arts. 52–54. For transit passage through international straits connecting one part of the high seas (or EEZ) with another part, see id. art. 37.
 See Geneva Convention on the Territorial Sea and the Contiguous Zone, Apr. 29, 1958, 15 U.S.T. 1606, 516 U.N.T.S. 7477; Geneva Convention on the High Seas, Apr. 29, 1958, 13 U.S.T. 2312, 450 U.N.T.S. 82.
 Baselines are the lines from which all the maritime zones that a coastal state can project and still be recognized by UNCLOS (like the 12 nautical mile territorial sea and 200 nautical mile Exclusive Economic Zone (EEZ)) are measured. Normally the baselines are coterminous with the coast line but it is a common technique for coastal states to make extravagant maritime claims by pushing-out their baselines. See UNCLOS, supra note 2, arts. 3–15.
 See id. arts. 238 (marine scientific research) and 303 (shipwrecks). See also Lyle Glowka, Bioprospecting, Alien Invasive Species, and Hydrothermal Vents: Three Emerging Legal Issues in the Conservation and Sustainable Use of Biodiversity, 13 Tulane Envtl. L. J. 329, 335–36 (2000); Samuel Bleicher, The Law Governing Exploitation of Polymetallic Sulfide Deposits from the Seabed, in Contemporary Issues in International Law: Essays in Honor of Louis B. Sohn (Thomas Buergenthal ed., 1984).
 See UNCLOS, supra note 2, art. 76 & Annex II.
 Hugo de Groot, Mare Liberum [Freedom of the Seas], (Ralph van Deman Magoffin trans., Carnegie Endowment for Int’l Peace 1916) (1609).
 Proclamation No. 2667, Policy of the United States with Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf, 3 C.F.R. 67 (1943-48), reprinted in 13 Dep’t State Bull. 453, 485 (1945); Proclamation No. 2668, Policy of the United States with Respect to Coastal Fisheries in Certain Areas of the High Seas, 3 C.F.R. 68 (1943-48), reprinted in 13 Dep’t State Bull. 453, 486 (1945).
 Phyllis Schlafly, Sink the Law of the Sea Again, Sept. 26, 2007, http://www.eagleforum.org/column/2007/sept07/07-09-26.html. Actually, Ms. Schlafly’s essay is among the more coherent and intelligent of the critiques of UNCLOS. For other examples, see Carolina Mendoza, Beware the Law of the Seas Treaty, Nov. 27, 2007, The Conservative Voice, http://www.theconservativevoice.com/article/29442.html; Frank J. Gaffney, Jr., Don’t Get LOST: The White House Toys with Signing a Very Kerry Treaty, March 18, 2004, National Review Online, http://www.nationalreview.com/gaffney/gaffney200403181156.asp; Frank Gaffney, Jr., Op-Ed, The U.N.’s Big Power Grab, Wash. Times, Oct. 2, 2007, at A14, available at http://washingtontimes.com/article/20071002/COMMENTARY03/110020010/1012.
 See The Convention on the Law of the Sea: Hearing Before the Comm. on Foreign Relations, 110th Cong. 1 (2007) (statements of Frank J. Gaffney, Jr., President, Center for Security Policy and Fred Smith, President, Competitive Enterprise Institute), available at http://www.senate.gov/~foreign/hearings/2007/hrg071004a.html.
 For a list of the fifteen ITLOS cases docketed over the past decade, see International Tribunal for the Law of the Sea, Proceedings and Judgments – List of Cases, http://www.itlos.org/start2_en.html.
 See UNCLOS, supra note 2, art. 287.
 See G.A. Res. 48/36, U.N. Doc. A/RES/48/263 (28 July, 1994), reprinted in 33 I.L.M. 1309 (1994).
 See UNCLOS, supra note 2, art. 82.
 See President Richard Nixon, Statement About United States Oceans Policy (May 23, 1970), reprinted in 2 New Directions in the Law of the Sea: Documents 751-52 (S. Houston Lay, Robin Churchill & Myron Nordquist eds., 1973), available at www.state.gov/r/pa/ho/frus/nixon/e1/53194.htm.
Suggested Citation: David J. Bederman, The Old Isolationism and the New Law of the Sea: Reflections on Advice and Consent for UNCLOS, 49 Harv. Int’l L.J. Online 21 (2008), http://www.harvardilj.org/online/126.