May 20th 2014.

Who makes the law of the sea as China and Vietnam clash over China moving an oil rig close to an island only 25 miles from the mainland of Vietnam?

One would hope that China which has ratified the Law of the Sea Treaty which has, among its other virtues, an arbitrating court for such disputes, would seek international, but disinterested arbitration. It refuses to.

Has this got something to do with the fact that the US has not ratified the Treaty? The Chinese don’t say so explicitly, but if the world’s one and only superpower refuses to sign up why should China pay the Treaty due regard? Is that what China is thinking? It is not a very good reason, but conceivably an understandable one.

As for the US itself it has an awful track record in ratifying international treaties, usually thanks to the Senate’s habitual blocking behaviour. It takes only one third of the Senate to stymie a treaty. Even though, to give one example, the US played an important, and usually constructive, role in bringing into the world the International Criminal Court for prosecuting war crimes and crimes against humanity and the US president, Bill Clinton, wanted the US to sign up, the threat of the Senate, that “it would be dead on arrival”, in the words of Senator Jesse Helms, meant that it was never submitted for ratification.

Nevertheless, as is often the case with the US, it supports the ICC’s work in day to day practice. It does the same with the Law of the Sea. Still, failing to ratify makes the US position rather weak when it tries to lean on China to get off Vietnam’s back.

David Kaye writes in Foreign Affairs that the Senate “rejects treaties as if it was a sport”. After the First World War it rejected the US joining the League of Nations, the precursor to the United Nations. Perhaps membership would have helped avert the rise of Nazi Germany by forging a more sensitive and united policy over German reparations, one of Germany’s sore points that Hitler played upon. Who knows? But maybe.

In more recent times the US rejected the Rights of Persons with Disabilities Treaty, the Kyoto Protocol on climate change, the Comprehensive Nuclear-Test-Ban Treaty and the Convention on the Rights of the Child (which only two other countries besides the US have failed to sign, Somalia and South Sudan).

The Convention on the Prevention and Punishment of the Crime of Genocide (later used to justify the US’s military campaign against the “ethnic cleansing” policies of Slobodan Milosevic, president of Yugoslavia) was ratified by the US in 1988, forty years after it signed it. But this was only because the right wing president Ronald Reagan made a supreme effort to convince his fellow Republicans in the Senate, as he also did successfully with the Anti-Torture Convention.

It was 26 years- after 109 other states had signed up- before the US ratified the International Convention on Human Rights, an instrument which it waged a long campaign for China to sign up to, and which it now uses to upbraid China’s human rights abuses. The US has still not ratified the other principal treaty enshrined in the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights. The omission allows many countries, including China, to accuse the US of having double standards on human rights. The US, it is said, supports human rights such as democracy or habeas corpus but doesn’t support the right to have a job, education and health (as it used to be until President Barack Obama won his health reform bill).

But all cannot be blamed on the Senate. In 1979 President Jimmy Carter decided to file suit against Iran before the International Court of Justice (the World Court) for taking US diplomats as hostage. Yet, only four years later, when Nicaragua took the US to the Court for the mining of the harbour of its principal port, the US under President Ronald Reagan withdrew its membership of the Court.

In 1998 the World Court ordered that the execution of a Paraguayan citizen in the US be suspended. It argued that under the Vienna Convention on Consular Relations, to which the US is a party, the accused had the right to seek assistance from Paraguayan consular officials, which he had been denied. Five days later, ignoring the Court, the state authorities in Virginia proceeded with the execution.

Some of the above has only a tangential relationship with what is going on between Vietnam and China at the moment. But much relates to it. The US has failed to be credible in a good many parts of the international arena.

The US has lived with its moral and diplomatic ambiguities over the application of international law for too long. If it wants other countries to toe the line it has to toe the line itself.