Co-authored with Riley Walters.
Last September, China deployed six surveillance ships in response to the Japanese government’s attempt to buy the disputed Senkaku islands, which the Chinese call the Daioyus, from their current owner, a wealthy Japanese family. Both countries are signatories to the United Nations Convention of the Law of the Sea, better known as the Law of the Sea Treaty (LOST), which celebrated its 30th anniversary this year. LOST was supposed to settle disputes between countries over maritime boundaries, but China and Japan seem not to have gotten the memo.
More recently the Chinese province of Hainan ratified a new law that gives Hainanese officials jurisdiction to board vessels in an area where China currently has joint sovereignty alongside the Philippines, Vietnam, and Taiwan. Association of Southeast Asian Nations (ASEAN) Secretary General Surin Pitsuwan recently said that this new legislation could seriously aggravate tensions among these Asian nations and pose a threat to global trade.
American supporters of LOST argue that the treaty will reduce international tensions over disputed territories by helping to resolve potential conflicts. They also argue that the treaty will provide the legal certainty that U.S. companies need to exploit sub-sea floor resources that would otherwise go to competing nations like Russia and China, which are signatories to LOST. Five Republican former Secretaries of State—Henry Kissinger, George Shultz, James Baker III, Colin Powell, and Condoleezza Rice—argued in a May 2012 Wall Street Journal op-ed, “By becoming party to the treaty, we would strengthen our capacity to influence deliberations and negotiations in other nations’ attempts to extend their continental boundaries.” Yet, the problem lies in the treaty’s process itself.
LOST asserts jurisdiction over maritime boundaries that have been recognized and enforced for centuries. The treaty does this by creating a new global governing body—ominously named the Authority—for the high seas or “the Area,” which would remain “the common heritage of mankind.” To settle international disputes, LOST created the International Tribunal for the Law of the Sea (ITLOS).
LOST was created to settle maritime disputes but has failed to do so. In fact, the dispute would probably not exist with LOST, which made the ownership of a group of small rocks a critical issue in determining the extent of the “exclusive economic zones” it sets out for signatory countries. Now it appears that at least one party, seemingly frustrated with the process, plans to return to gunboat diplomacy.
China ratified LOST in 1994 and Japan ratified in 1996. Both countries, however, continue to claim sovereign right over the same area of the South China Sea. China Ministry of Foreign Affairs Spokesperson Hong Lei stated, “Isn’t it a weird thing in international affairs to submit a sovereign country’s territory to international arbitration? What a chaos the world will be in if this happens?” Yet chaos is unfolding in the Pacific now, as two LOST signatories escalate their confrontation.
The United States has not ratified LOST. It should not do so. Not only has the treaty proven ineffectual at settling disputes, it would expose America to a storm of international litigation. LOST not only redistributes maritime boundaries, potentially taking away from existing U.S. territory, but also sets new regulations on pollution for not only the sea, but also potential contaminants from U.S. land- and air-based sources.
For example, emissions from manufacturing plants can pass into the ocean when it rains. Rivers near plants can also wash chemicals down into the ocean. This opens all manufacturing sites, or any facility that emits waste, to international litigation aimed at stopping the corresponding economic activity. For America, LOST represents a new source of global regulation aimed at stifling development of natural resources and affordable energy sources. It is the failed Kyoto Treaty redux, this time with its own court.
American consumers will see the result in higher prices for energy. Higher energy prices will drive up transportation costs—and all products need to be transported. The increased cost of adhering to new international regulation would cause business owners to pay for these costs through an increase in the price of their products, which then fewer people will be able to afford.
So what does LOST achieve? It incentivizes countries to seek litigation to gain sovereign rights over territory they believe is theirs, in disputes they believe they can win. In some cases, countries that can’t, or won’t, resolve disputes among themselves will turn to ITLOS, which may or may not issue a ruling, more often simply letting countries to continue talks among themselves. This incentivizes countries to ignore the possibility of an adverse ruling when they believe they will lose.
LOST has failed miserably to reduce international tensions. It creates bad incentives and offers no solutions for those problems, while imposing extra costs on the citizens of countries that sign up for it. The treaty deserves to be lost at sea.