October 6, 2011: My friend John Bolton and his co-author Dan Blumenthal are "lost" in arguing for reliance on customary international law (CIL) in "Time to Kill the Law of the Sea Treaty—Again" (op-ed, Sept. 29, 2011). They say that CIL is essential but then assert that China, supported by Russia, Iran, Brazil and India, does not respect the tenets they say CIL establishes. Where is the general pattern of state practice essential to CIL? The problem with relying on CIL in the law of the sea arena is that its history reflects a steady deterioration of the freedom of the seas to the detriment of the essential rights of maritime nations, such as the U.S.
The Law of the Sea Treaty (LOST) strikes a balance between the rights of maritime nations and coastal nations. The U.S. has the most at stake in each category, possessing the world's premier Navy and the world's longest coast line. LOST codifies very important economic rights of coastal states, while also freezing in place navigational rights essential to maritime states. Both areas are too important for reliance on CIL, which neither the authors nor I would rely on for a second in other areas where the sovereignty of the U.S. is at stake.
LOST is not the answer to maritime conflicts, but it is an important tool to have. It should not be blindly ratified, but if combined with reform of our domestic energy policy, ratification would strengthen important navigational and economic rights for the U.S.
Edwin D. Williamson
Mr. Williamson served as State Department Legal Adviser from 1990 to 1993.
see link below to original letter at Wall Street Journal