Secretary of State Hillary Clinton addressed the Senate Foreign Relations Committee today to urge ratification of the UN Convention on the Law of the Sea.  One point she made repeatedly was that things are happening within the context of that treaty regime that the United States cannot influence because of its absence. On navigational freedom, defining where countries' continental shelves are, and protecting U.S. seabed mining rights, she argued that the United States must be a member if its voice is to be heard.  "We need to be on the inside to protect and advance our interests," she insisted.

I think she's right, and I've never been persuaded by the arguments against joining the convention. But her testimony does raise a complex broader issue. The truth is that the United States can often ensure that its voice is heard and that its interests are protected without formally joining international institutions and accepting the burdens that membership implies.

The International Criminal Court is a good example. By virtue of its Security Council seat, the U.S. gets to help decide whether to refer cases to the court and whether to defer investigations, all without accepting the additional legal exposure that joining the court would create. The U.S. supports certain ICC investigations while remaining free to distance itself from the court if it chooses. It urges states to comply with the court's arrest warrants while keeping its own officials and soldiers mostly out of the court's reach. Meanwhile, there's no evidence that the U.S. status as a non-member prevents it from effectively communicating  its views to court officials when it needs to do so. 

I participated recently in a discussion with a number of very sharp folks about the sustainability of this model of U.S. engagement. A few demanded a more principled position, but most recognized that there's no real alternative to the present situation. The Senate is not going to endorse U.S. membership in the court but neither is the United States likely to return to the anti-ICC fervor of the early George W. Bush administration. For the moment, at least, the United States gets to have an ICC doing stuff it mostly likes while sitting quite comfortably on the sidelines.