Forty-six years ago I told an editor of The New Republic that I’d like my first article for this publication to be about the United Nations Convention on the Law of the Sea. I was an earnest summer intern, less than one month out of college. The editor, Michael Kinsley, seven years my senior, was the smartest journalist I’d ever met (he retains that distinction today). Mike gave me a pitying look and said: “Tim. The Law of the Sea is the most boring subject there is. Find something else.”
I followed Mike’s advice for nearly half a century, but events now require me to disobey him. Earlier this week Jonathan Karl of ABC News asked President Donald Trump how he felt about Iranians charging a toll for ships that pass through the Strait of Hormuz. Trump replied: “We’re thinking of doing it as a joint venture. It’s a way of securing it — also securing it from lots of other people.”
It’s hard to know how serious Trump was about this (or indeed, how serious he is about anything). Later the same day Trump’s spokesperson, Karoline Leavitt, said Trump wants Iran to reopen the Strait of Hormuz “without limitation, including tolls.” The tollbooth that Iran installed in the Strait, and the sharing of toll revenues that Trump considered at least briefly, are both in blatant violation of the Law of the Sea treaty—and reason to regret that the United States never signed it. (Neither did Iran.)
The Law of the Sea treaty guarantees “innocent passage through the territorial sea” of any nation. A ship’s passage is innocent provided “it is not prejudicial to the peace, good order, or security of the coastal State.” Mostly that means the ship can’t be engaged in any military activity, but neither may it commit “willful and serious pollution” or fish the waters. An exception is made if the nation in question provides “services rendered to the ship,” including the construction and maintenance of a man-made canal. Panama and Egypt are thus free to charge upwards of $1 million for a large tanker to transit the Panama or Suez Canal. Without these fees, both nations would be flat broke.
Another exception was long ago granted to passage through the Bosphorus and Dardanelles Straits. These are not man-made, but in 1936 the League of Nations decided (in the Montreaux Convention of 1936) that sure, okay, Turkey can charge tolls for passage. This was permitted to keep Turkey, which had joined forces with Germany in World War One, from allying with Germany once again in World War II.
It’s not hard to see why the “innocent passage” rule exists. Global commerce and global peace depend on freedom of the seas. After World War II the United States, at least in theory, became guarantor of such freedom, but that’s an imperfect solution, not least because our Navy, with half as many ships as during the Cold War, is a diminished presence in international waters. The last time the United States played sea-lanes cop was 39 years ago, during the Iran-Iraq War. The setting, then as now, was the Strait of Hormuz. Kuwaiti tankers were outfitted with American flags and accompanied by American warships to protect them from attack from Iran. It was a mixed success; the episode is remembered today mostly for our accidental downing of a civilian Iranian airliner, killing everyone onboard. The current muddle in the Strait of Hormuz, with a sort-of ceasefire in effect and Trump begging the Europeans to re-open the strait (and throwing a tantrum as they hesitate), shows how little our allies can rely on Pax Americana.
Rather than pretend the United States Navy still rules the seas, we’d have done better to ratify the Law of the Sea treaty. In 1982 Ronald Reagan rejected it because he thought it would curtail commercial deep-sea mining, an environmentally disruptive practice that remains theoretical 44 years later. After the United Nations made some concessions on deep-sea mining, President Bill Clinton signed the treaty and submitted it to the Senate for ratification. But the chairman of the Senate Foreign Relations Committee, a well-meaning but ageing patrician Democrat named Claiborne Pell (cruelly nicknamed Stillborn Pell) failed to move the treaty before Republicans retook the Senate in 1995, elevating the reactionary xenophobe Jesse Helms to the chairmanship. Helms deep-sixed the Law of the Sea.
President George W. Bush signaled that he would support the treaty, but his fellow Republican, Senate Majority Leader Bill Frist, declined to move it. Even after Democrats retook the Senate in 2007, the treaty lacked sufficient Republican votes to overcome a filibuster. By now the irrational political polarization that plagues America today had advanced sufficiently that the Heritage Foundation (in a memo coauthored by Ed Meese) could argue against the Law of the Sea merely because it was a multilateral treaty negotiated by the United Nations. “International bodies created by such treaties,” Meese and Company concluded, “often lack proper protections to prevent unaccountable behavior and corruption and result in the U.S. being by bloc voting led by countries with an interest in limiting U.S. freedom of action and sovereignty.” The only thing missing was a reference to our precious bodily fluids. When President Barack Obama tried to revive the treaty, Republicans shot it down again.
The United States, in addition to being the only NATO member to threaten war against another NATO member (Denmark, over Greenland) is also the only NATO member never to sign the Law of the Sea treaty. Add on top of that the affront that we never consulted our NATO allies before we attacked Iran and you can kind of see why NATO doesn’t much feel like helping return the Strait of Hormuz to its status quo ante. It’s therefore not inconceivable that these new tolls will become permanent.
If they do, we may soon see China do the same in the Strait of Taiwan, Morocco or Spain do it in the Strait of Gibraltar, Indonesia do it in the Strait of Malacca, and Trump do it wherever he pleases. We’d all be much better off today if the United States had signed the Law of the Sea treaty before this country lost its mind—way back when, as Mike Kinsley told me nearly five decades ago, the whole subject was pretty much a snooze.
