"River Kwai Syndrome" Plays in Law of the Sea

In 1957, Hollywood created the unforgettable image of military men throwing themselves into a construction project, having lost sight of the fact that the result could be used by the enemy to the grave detriment of their comrades and country. Unfortunately, nearly 50 years after The Bridge on the River Kwai entered the public consciousness, the Navy seems afflicted with the same syndrome as it encourages U.S. ratification of the controversial U.N. Convention on the Law of the Sea.

The Navy's official support for this convention (better known as the Law of the Sea Treaty, or LOST) is not new. Navy lawyers have argued for more than two decades that the treaty would be in the service's interest, codifying international law concerning freedom of navigation, even though it was negotiated in a diplomatic context openly hostile to U.S. military and economic might and dedicated to reducing U.S. advantages. Even when President Ronald Reagan determined the treaty was not in the larger national interest, the Navy urged U.S. accession.

Today, LOST supporters claim the treaty has been "renegotiated" to erase Reagan objections regarding seabed mining and sovereignty issues. In fact, LOST's current text is identical to the one President Reagan rejected in 1982.

Given LOST's objectionable pedigree, the absence of skepticism among the U.S. military services is alarming. The Joint Chiefs of Staff should take a much harder look at this vast and controversial treaty while they can. At minimum, they should ask themselves: If LOST is a treaty about the Navy's combat mobility and national security, why is the ratification effort being led by State Department environmentalists and whaling foes?

In the absence of such reflection, the Navy's abiding enthusiasm for LOST is doubly pernicious. Treaty proponents are using it to suppress critics and impel the Senate's approval as soon as possible. Should that happen, the effect will be to provide the Navy's foes—both at home and abroad—with a powerful weapon for impeding, or blocking, the Navy's performance of vital missions:

LOST gives opponents legal grounds for challenging Navy operations such as intelligence collection in and submerged transit of territorial waters. LOST does not include suspicion of terrorism or weapons of mass destruction as legitimate reasons for intercepting and boarding ships on the high seas, the essence of President George W. Bush's Proliferation Security Initiative. LOST requires "international cooperation" with respect to whales, creatures some contend are threatened by the Navy's use of certain active antisubmarine sonars. If the United States is a party to LOST, it will face two unpalatable choices when its activities in these and other areas are challenged by nongovernmental organizations or unfriendly governments: It can submit to compulsory dispute resolution, or it can take up the issue with the treaty's Law of the Sea Tribunal.

For good reason, the United States historically has refused to agree to compulsory dispute resolution, a position previously endorsed by the U.S. Senate. It should continue to do so.

As with other politicized international panels (notably, the World Court and World Trade Organization), the United States should expect to find itself outvoted in LOST's multilateral tribunal. At the least, the Law of the Sea Tribunal will produce new judicial rulings that will prove problematic in their own right. They also will be cited by activist judges in this country in rulings against U.S. naval and other interests. Frankly, State Department and Navy lawyers are likely to encourage preemptive self-restraint in the interest of avoiding adverse findings by the tribunal—in the process, effectively preventing the execution of potentially critical missions.

LOST's proponents blithely point to language allowing parties to exclude "military activities" and assert that we alone will decide what constitutes such activities. In practice, however, the tribunal has complete latitude to determine its jurisdiction. Given the decidedly anti-American trend in U.N.-related bodies of late, it is folly to believe the Law of the Sea Tribunal's judges will respect our efforts to protect Navy and Marine brown-water operations and sea basing by declaring them outside the treaty.

Fortunately, the United States and its Navy can continue to enjoy freedom of navigation without becoming party to the Law of the Sea regime. Just as it has done for the past 22 years, the United States can conform to international law in this area and address bilaterally any issues that arise (as was done with the EP-3 incident with China in 2001). Such an approach maximizes U.S. leverage and minimizes the risks associated with multilateral compulsory dispute resolution or tribunals.

The good news is there is growing awareness in the Senate and among the naval services' supporters that the Law of the Sea Treaty is defective on national security, sovereignty, economic, and judicial grounds. As a result, the U.S. military has an opportunity to withdraw its support for LOST—support that is as misplaced today as was helping the Japanese build a strategically critical bridge over the River Kwai in World War II.

Frank Gaffney held senior positions in the Reagan Defense Department. He currently is president of the Center for Security Policy in Washington, D.C.

The above article tells of disturbing consequences from ratifying the United Nations Convention on the Law of the Sea (UNCLOS). In my July Proceeding an article (unavailable online) pleads for ratification of this treaty claiming support by most admirals and every president since – and including – Ronald Reagan. The above article discusses Reagan’s support.

However, in reviewing its 320 articles I can understand Mr. Gaffney’s position that nations would interpret the treaty against the U.S. Navy. For every Great Britain and Poland, which might hold one of 36 Council seats, I can name a Mozambique, Syria, Iran or Burma struggling through a new Dark Age where we are perceived as an economic predator and/or regime threat. We should not look to our friends either when Donald Rumsfeld, Tommy Franks, and George Tenet are considered war criminals in Germany, Canada, and Belgium. The Security Council is cut out of the loop, so the veto we needed during the Cold War is not available for the issues found within the treaty.

One of the many problems for interpretation could be Article 19 defining innocent passage, while within the territorial sea. Acts prejudicial to peace of a coastal state include launching and landing aircraft. Also a self-interested reading of the article says using any electronic device other than navigational radar could be considered an act of propaganda or an act aimed at collecting information. State Department may assure friendly government relations, but how many nations can provide practical sea, air and undersea supremacy guarantees to allow warships to forgo defensive measures provided by aircraft, boats, sonar, radars and comm. nets? Supposedly, the “military activities exemption” would allow you to maintain adequate ship or task force defenses in territorial waters. However, I do not see the “military activities exemption” as one of the articles. A hostile Council should have no problem defining this term to place our ships at risk of terrorism. In the article unavailable online, Dr. Scott C. Truver contends the Convention does not permit an international tribunal to frustrate Navy operations, but without reference to the treaty, he assures us some undefined protocol can (not will) exclude military activities from resolution provisions.

In reading this treaty, I believe you will find the extensive latitude in article language necessary to allow a hostile U.N. Council to write an enormous body of implementing regulations directed against our ships and planes. Our sailors will be bound by these regulations as they go into a “harms way” largely undefined in this era of violent peace. When something goes wrong the operators on 285 commissioned ships will pay the price, while 290 plus flag officers, their Pentagon lawyers, and politicians in Washington D.C. will express profound sorrow and outrage as all bullet proof their resumes. Bureaucracy infections set in as soon as one escapes small arms range, and becomes so all-consuming the plight of a Marine unit in Haditha now elicits unmitigated wrath half a world away.

Link to the treaty: http://www.globelaw.com/LawSea/lsconts.htm

I don’t know what to make of this. As someone who has spent a good portion of my life around the US Navy, I am puzzled why the Navy supports this.

This does not sound like anything they would support...it would tie our hands.

I cannot believe the simple explanation is that the Navy doesn’t want to be in tenuous political situations. From all I know, both personally and historically, that runs against the grain.

Ship captains have always been expected to take into account political considerations and international relations. That is one of the reasons it can be a pretty lonely job.

Treaties provide illusions of protection from unreasonable maritime challenges; illusions quickly dispelled by lack of forthright action. Concerning the showdown between U.S. (UNCLOS signed) and PRC (UNCLOS ratified) over the Navy EP-3E, China saw no problem in provoking the incident, notwithstanding UNCLOS and prior treaties defining freedom of the seas. Further antidotal evidence emerges from taking of British (UNCLOS ratified) hostages by Iran (UNCLOS signed). In this day of instantaneous communication, the fact the British captain did not fight his command means senior commanders and politicians, including some masquerading in military uniforms, failed miserably when exerting the authority they had confiscated to protect freedom of the seas. Since Iran is a terrorist state, the first evolutions practiced by Coalition task force units should have been the continuum of actions (a treaty advocate definion of Gunboat Diplomacy) opposing Iranian provocations in the Persian Gulf and Straits of Hormuz. The Iranian boats did not materialize alongside the British like some Klingon Birds of Prey, but had to employ a variety of intrigues to which there should have been timely, consistent, practiced responses not requiring phone calls to politicians half a world away.

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