With the addition of three Republican senators, including VP hopefuls Rob Portman and Kelly Ayotte, opponents of the Law of the Sea Treaty (LOST) now have enough support to block its ratification. Foes of the treaty fear it will force America to cede sovereignty to the UN and would prefer to negotiate maritime disputes through bilateral and other channels.
The treaty has been kicking around the Senate for twenty years, but support has recently grown as China asserts rather tenuous claims to disputed islands in surrounding waters. Beijing is a signatory to the treaty, along with 161 other countries. U.S. officials (including all living Republican former secretaries of state) worry that refusing to follow suit diminishes America’s leverage in dealing with China over these territorial clashes. Business groups, including the U.S. Chamber of Commerce, have also called on the Senate to ratify the treaty in order to protect American claims to valuable natural resources.
As a result of Republican opposition, John Kerry, chairman of the Senate Foreign Relations Committee, will push back a committee vote on the treaty until after the election. The two-thirds Senate majority the Constitution requires for treaty ratification frequently causes car crashes like this one, and Kerry’s decision to stall before sending it to a vote is the only chance that treaty proponents have — and it’s a slim one. But simply waiting for the election may not be enough. The administration needs to address conservatives’ concerns, possibly through a trusted intermediary.
The real takeaway from this is that future US negotiators need to take conservative objections into account before taking a treaty to the Senate. Most historians think the dumbest thing Woodrow Wilson ever did was not to include Senate Republicans in the negotiating process at Versailles. Often, the issues that most annoy US conservatives can be addressed while the international negotiations are in progress. It never hurts to try.
Alternatively, if our treaty negotiators understood Jacksonian and Jeffersonian thinking better, they would know when an international treaty process was heading in a direction that would result in a treaty that the US would never ratify. At that point, they would need to shift into a damage control mode to reduce the cost of US isolation on the issue.
LOST has real advantages for the US and with a few tweaks the ratification process would have been a much easier process. But we are going to have problems like this until the State Department and White House officials internalize the worldview of those who view treaties with instinctive caution.