Guest Post: The United States Should Maintain a Leadership Role in International Maritime Law

Captain Peter Troedsson is military fellow, U.S. Coast Guard, at the Council on Foreign Relations.

A recent opinion piece in the Washington Times—“No Time to Get LOST,” by Mr. Ed Feulner—was representative of many who lament that there may finally be progress toward the long overdue ratification of the Law of the Sea. It is readily apparent to members of both political parties, academia, the U.S. Chamber of Commerce, the media, the Pentagon, and many others that this is the right thing to do. Mr. Feulner’s assertion to the contrary centers on his belief that the United States already has unfettered access to areas of the outer continental shelf beyond its Exclusive Economic Zone (EEZ); that area beyond the U.S. territorial limit of twelve miles, out to two hundred miles. His justification is: “Presidents have issued proclamations and Congress has enacted laws establishing America’s maritime boundaries…[and that] no one has challenged them.” Unfortunately, he has confused what lies within established U.S. boundaries with that vast expanse that lies outside its territorial seas and EEZ.

Fuelner builds his opposition around the assertion, “Nations that have joined the Law of the Sea can’t prevent the United States or any other nation from mining the seabed any more than they can prevent the United States from exercising the freedom of navigation and overflight, the freedom of fishing, or any other high seas freedom.” While this may be technically true, it misses the larger point. Technological advancements have made it possible to mine minerals in areas well beyond the U.S. EEZ, or any other nation’s EEZ. Large companies with the resources and capital needed to engage in these endeavors are less likely to pursue initiatives if they are likely to be embroiled in international legal battles.

Like it or not, we live in a world that other nations also inhabit, and the United States must maintain its ability to influence and shape the constantly evolving body of international law.  Without a seat at the table, not only is the United States refusing to be a part of the family of nations (as Mr. Feulner quotes Bob Keeler), but it is also “unfathomably” depriving ourselves of that rightful place of leadership. This is not tying our hands, as Feulner suggests. Quite the contrary; the failure to ratify is tying U.S. hands. Vice Admiral James Houck, Judge Advocate General Corps of the U.S. Navy, writing in the Penn State Journal of Law and International Affairs in April 2012, points to the dynamic and evolutionary nature of international law. He suggests that nations today, including potential U.S. adversaries, are far less inclined to accept the maritime status quo than they have been in the past. He predicts that coastal states around the world will seek greater control of their territorial seas and EEZs for domestic security reasons, and asserts that “the anti-LOS argument is based on fundamental and largely unexamined assumption that the United States will ensure that the customary law of the sea, as enjoyed today, will never change.”

Odds are that the Law of the Sea will change, and the United States must be able to influence that change. Mr. Feuler mentions that more than 160 nations have ratified the Law of the Sea, but asserts that the United States is in good company because Colombia, Israel, Peru, and Turkey also have not ratified.  I find it hard to see how Mr. Feuler thinks these are leading maritime nations.  More importantly, he fails to note the others who have failed to ratify, including Iran, Syria, North Korea, and Venezuela. He also does not mention the fact that all NATO allies, and all member states of the Arctic Council, have ratified the treaty. The treaty is overwhelmingly favorable to the United States (it played a lead role in crafting the convention), and treaty membership would guarantee continued ability to influence this body of international law. Instead, the current refusal to ratify lends support to nations who would pick and choose among Law of the Sea provisions, and undermines U.S. credibility. Ratification would enhance and strengthen its standing. The U.S. Senate should take heed of the rare unanimity on this issue and ratify the Law of the Sea.