FOR 35 YEARS after the end of World War II, the United States took the lead in constructing an elaborate framework of international organizations designed to avoid conflict by finding peaceful solutions for problems.
This policy was based not only on good intentions but, more importantly, on self-interest. Organizations such as the United Nations and the Organization of American States, which emerged out of the global chaos of World War II, provided a way to resolve conflicts without resorting to war -- or without requiring the U.S. to carry the peace-keeping burden alone.
But under President Reagan, the United States appears to have turned away from the multinational approach, preferring instead bilateral negotiations, or, if they fail, an imposed unilateral solution that often involves real risks to American strategic interests around the world.
In recent months the United States has refused to participate further in arguments at the World Court regarding its dispute with Nicaragua, withdrawn from UNESCO and formally rejected the 1982 Law of the Sea Convention by letting the Dec. 9, 1984, deadline pass without a U.S. signature.
The American decision not to sign the Law of the Sea treaty offers a particularly discouraging example of how this go-it-alone stance in foreign policy may create future problems for the United States -- as well as depriving it of many significant benefits that earlier administrations going back to 1970 had worked hard to obtain.
One of the most important potential strategic benefits that the United States would have received from signing the treaty was the clear right to send submerged American submarines through straits where a country claims sovereignty. But, in the absence of American participation in the treaty, that legal right is clouded.
The treaty, signed by 159 countries or organizations, is designed to regulate all aspects of ocean use including the mining in international waters and the navigation through coastal waters. Because the United States' interests are global, American ships and submarines need to have access to virtually every corner of the world. With the treaty, the United States could claim that access as a matter of right. Without the treaty, the United States might have to to rely on military power -- a risky proposition as well as a potentially bad example for a country that has traditionally tried to keep the peace.
The Reagan administration has repeatedly said that the treaty is "fatally flawed" because of the procedure it establishes to govern the mining of polymetallic nodules (containing manganese, nickel and cobalt principally) on the floor of the deep ocean. As a result of this view, the United States has not participated -- even as an observer -- in the continuing activities of the Preparatory Commission, which is drafting regulations on deep seabed mining. The United States is the only nation in the world that has taken this extreme position. West Germany and the United Kingdom, under pressure from the United States, also did not sign the treaty, but have been participating actively as observers.
All the other developed nations did sign the treaty prior to the Dec. 9 deadline -- including Italy, Belgium, Luxemburg, Spain, and the European Economic Community, which all signed shortly before the deadline despite strenuous U.S. efforts to persuade them not to.
The stated reasons for Reagan's rejection of this treaty focused on the cumbersome provisions regulating seabed mining, which he said would "deter future development of deep seabed mineral resources," deny "assured access for future qualified deep seabed miners" and "require mandatory transfer of private technology." What these objections amount to is an assertion that the free enterprise system will be restrained by the treaty. Several other more technical concerns probably could have been resolved in the final negotiating session, if the Reagan negotiators had not been so negative about the mining provisions.
Most of the other developed nations found it hard to take these U.S. arguments about seabed mining seriously because (a) no deep seabed (in international waters) mining is likely to occur in fact during the coming generation because the cost of mining will continue to be higher than prices received for the minerals, (b) the companies that invested in deep seabed mining were in any event guaranteed access to the polymetallic nodules on the sea floor, if they were affiliated with a country that had signed, (c) the requirement that mining companies sell technology when requested to do so is no more onerous than obligations imposed by most nations on land-based mining and (d) the regulations now being developed by the Preparatory Commission can be written to respond to the concerns of the developed nations.
Reagan also objected to the structure of the organization created by the convention to regulate seabed mining which, he said, has a "decision-making process that would not give the United States or others a role that fairly reflects and protects their interests." Representatives of the Reagan administration have pointed to this problem as the real reason for the U.S. rejection of the treaty, and have expressed concern about the precedent it might set for other organizations.
Previous U.S. administrations had, however, played key roles in creating the seabed authority. The idea for a seabed organization was included in President Nixon's original oceans policy statement in 1970, and the details of the current International Sea-Bed Authority were developed after compromises to break stalemates were proposed by Secretary of State Henry Kissinger in the mid-1970s and later by President Carter's chief negotiator Elliot Richardson.
The cost to the United States of its decision to reject the Law of the Sea Convention can be seen most clearly in the provisions on navigational freedom that are so vital to our national security interests.
By the early 1970s most nations had claimed a 12-mile territorial sea, and some commentators argued that those straits that are less than 24 miles wide had become subject to the jurisdiction of the adjacent coastal nations. This category includes many of the world's crucial passageways -- like the Strait of Gibraltar, the Strait of Malacca in the Indonesia-Malaysia-Singapore area, and the entrance into the Persian Gulf. In addition, nations like Indonesia and the Philippines were claiming control over "archipelagic waters" and threatening to limit passage between their islands. Because of these claims, the principal reason the United States entered into the negotiations in the early 1970s was to codify and clarify the freedom of navigation.
These navigational issues are crucial to the United States because the ability to move our ships and planes rapidly from one part of the world to another is essential to our national defense. During one of the recent Middle East conflicts, for instance, none of our European allies would grant us permission to fly across its land, so our planes bringing supplies to Israel had to fly over the Strait of Gibraltar.
Of similar importance is our ability to move nuclear submarines through straits without surfacing, in order to keep their locations secret and maintain their deterrent value. This right to pass submerged, which is granted in the treaty, was in dispute under pre-convention law. The U.S. failure to sign thus raises the question of which legal procedure governs the passage of U.S. submarines.
The language in the treaty on navigational rights conforms in most respects to the views of the United States. The rights of passage in various areas and conditions are spelled out in greater detail than in previous treaties. Similarly, the expansion of coastal state jurisdiction over resources in the 200- mile zone is described in carefully chosen words to ensure that navigation rights are not limited by geographically expanding control of natural resources.
But will these careful balances between coastal and maritime interests survive if the convention is not universally ratified? The treaty was adopted after long negotiations, and many nations in the developing world feel they compromised important security interests in agreeing to the navigational provisions. They are now considering whether they should grant these benefits to a nonsignatory nation like the United States, which refuses to accept the burdens in the convention related to deep seabed mining.
During the negotiations, the United States insisted upon new dispute- resolution procedures to protect the freedom of navigation against further expansions of coastal state jurisdiction, and the other nations agreed to include them in the convention. If we are unable to use these procedures, coastal nations will be tempted to make greater and greater claims to the waters and resources off their coasts. This process -- known as "creeping jurisdiction" -- will threaten the free movement of our warships and commercial vessels.
The U.S. position now is that the navigational provisions of the convention are part of customary international law binding on and benefiting all nations whether or not they sign the treaty. Admirals of the Pacific fleet, apparently reflecting Navy policy, have stated that if other nations have different views of international law, those nations better have the military force to back up their views because the United States intends to defend its navigational interests with naval power if necessary. This approach may work with regard to a nation like Libya with which the United States has no ongoing relations, but it will probably find itself reluctant to provoke confrontations with nations with which it seeks continued friendly relations, like Indonesia, particularly when the navigational rights it seeks to enforce are in fact ambiguous.
Reagan administration officials acknowledge that the uncertainty on navigation and overflight created by the U.S. decision not to sign the convention is a "cost" of that decision, as is the inability to use the compulsory dispute-resolution procedures. They tend to defend the decision by arguing that the navigational system can be made to work without the United States' being a member of the convention, but that the treaty's seabed mining procedure could not be made to work whether the United States joins the convention or not.
This decision to stay out of the convention -- a "Lone Ranger syndrome," as some call it -- poses serious problems for the peaceful resolution of international conflicts. If the United States cannot come to any agreement with other nations on how decisions should be made in multinational organizations, then no new organizations can be developed. Most of the current international organizations such as the United Nations, the World Court and UNESCO are not operating effectively, so all observers see this problem as a pressing one. The system at the UN Security Council, which gives major powers like the United States and the Soviet Union a veto over proposed actions, has repeatedly prevented actions from being taken.
The solution adopted for the International Sea-Bed Authority was designed to avoid the pitfalls of the Security Council and to balance the concerns of both developed nations -- especially the United States -- and Third World countries. A complete "consensus" is required for the most important decisions and an enhanced majority (three-fourths or two-thirds) are required for less important questions.
The Reagan administration decided not to participate in this global experiment, however, apparently fearing that this new structure might serve as a precedent for other international organizations in the future. Their concern apparently was that the United States and like-minded nations would not be able to control this organization on all issues.
Many commentators have expressed surprise and regret that the United States did not at least sign the convention. Very little would have been lost in taking that step and much could be gained by being able to work within the Preparatory Commission to improve the seabed mining provisions (as the other western nations are now doing). If the U.S. had signed the convention, it would also be able to argue when conflicts arise that the specific language of the navigational and environmental provisions govern, rather than relying solely on the extent to which customary international law has absorbed the convention's provisions.
This opportunity has now been lost. The United States could still join the convention by "accession" at some future point, but this would require formal ratification and a two- thirds vote of the Senate. Such a procedure is a significantly more complicated step than signing by the president, which would have indicated simply general U.S. support for the purposes of the treaty.
The Reagan administration's oceans policy fits into a pattern in which the U.S. attempts to "stand tall" for its perceived interests and in the process isolates itself from most other countries of the world, including many of its traditional allies. Reagan decided to rely on the ambiguous procedure of customary international law and military power for our navigational rights because of his opposition to the structure of the International Sea-Bed Authority. This policy sacrifices very practical gains in clarifying maritime passage rights and establishing peaceful procedures for resolving disputes for a principle of uncertain importance and value.
Like the decisions to walk out of the World Court over Nicaragua and withdraw from UNESCO, the U.S. rejection of the Law of the Sea Convention moves it farther away from a system of stable international institutions in which most disputes could be resolved peaceably. It is hard to see how this approach serves long-term American security interests.