(Almost) Everyone Agrees: The US Should Ratify the Law of the Sea Treaty

Filed under: Navy |

Most of the world follows the convention and the U.S. signed it years ago, but some conservative members of Congress are still blocking it.

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It is high time the United States joined 162 other states and the
European Union in becoming party to the UN Convention on the Law of the
Sea (UNCLOS)–thirty years after the Reagan administration signed the
treaty.

On May 23, the White House dispatched its big guns to the Senate
Foreign Relations Committee, where Senator Kerry is holding hearings on
UNCLOS. The message from Secretary of State Hilary Clinton, Secretary of Defense Leon Panetta and chairman of the Joint Chiefs of Staff, General Martin Dempsey, was unequivocal: Acceding to the treaty is profoundly in the U.S. national interest.

That, of course, is the unanimous view of every one of their predecessors, under both Democratic and Republican administrations.

And yet the treaty continues to face stubborn opposition from a vocal
conservative minority of purported defenders of U.S. sovereignty, still
trotting out long-discredited talking points.

All of the uniformed services–and especially the U.S. Navy–are
solidly behind UNCLOS. American military leaders have always been
discriminating when it comes to treaties, traditionally resisting those
(like the Rome Statute of the ICC) that might put U.S. servicemen and
women at risk. But they support UNCLOS because it will enable,
rather than complicate, their mission. Because the United States was the
principal force behind the negotiation of UNCLOS, it contains
everything the U.S. military wants, and nothing that it fears.

The treaty’s primary value to the U.S. military is that it
establishes clear rights, duties, and jurisdictions of maritime states.
The treaty defines the limits of a country’s “territorial sea,”
establishes rules for transit through “international straits,” and
defines “exclusive economic zones” (EEZs) in a way compatible with
freedom of navigation and over-flight. It further establishes the
“sovereign inviolability” of naval ships calling on foreign ports,
providing critical protection for U.S. vessels. More generally, the
treaty allows states party to exempt their militaries from its mandatory
dispute resolution provisions–allowing the United States to retain
complete military freedom of action. At the same time, the treaty does
nothing at all to interfere with critical U.S.-led programs like the
Proliferation Security Initiative (PSI). Nor does it subject any U.S.
military personnel to the jurisdiction of any international court.

Some have argued that UNCLOS has already become “customary
international law,” and thus the United States has little to gain from
formal accession. But custom and practice are far more malleable and
subject to interpretation. Other states may soon push the Law of the Sea
into new, antithetical directions if the United States does not ratify
the treaty. China, a party to UNCLOS, rejects U.S. interpretations of
the treaty’s freedom of navigation provisions, and continues to assert
outlandish claims to control over virtually the entire South China Sea.
But it is hardly alone. Countries as diverse as Brazil, Malaysia, Peru,
and India have resisted freedom of navigation within their EEZs, in
contravention of their obligations.

As it has for years, the United States Navy regularly conducts
Freedom of Navigation Operations (so-called FONOPS) to challenge
excessive claims of territorial exclusivity. But as non-party to the
treaty, the United States lacks any legal standing to bring its
complaints to an international dispute resolution body. More broadly,
U.S. Navy and Coast Guard officials complain, non-membership complicates
everyday bilateral and multilateral cooperation with scores of
international partners.

If these security benefits were not enough, the U.S. business
community is unified in its support for the treaty for two reasons.
First, UNCLOS would protect U.S. rights to sole commercial exploitation
to all resources on and under its extended continental shelf (that is,
beyond two hundred miles). This area–estimated to be twice the size of
California–is rich in oil, gas, and other exploitable resources. Second,
accession to the treaty would allow the United States to sponsor its
own national companies to engage in deep sea-bed mining. Last week, the
chairman of Lockheed Martin sent a strongly worded letter to the Senate
saying his company wanted to join the race for undersea riches, but
could not assume investment risks until it was clear that it would have a
clear legal title to its findings.

This coming week, Senator Kerry will hold a second round of hearings
on UNCLOS, featuring an array of military commanders, treaty champions
like John Bellinger-former legal counselor to the State Department and
National Security Council under the George W. Bush administration-and
critics, like Steven Groves of the Heritage Foundation. The hearings
offer a golden opportunity to put to rest the canards of treaty
opponents.

Securing a two-thirds Senate majority will not be easy. Opponents are
pulling out all the stops, invoking the GOP’s patron saint to scuttle
its prospects. According to Edwin Meese, former attorney general for
Ronald Reagan, the Gipper abandoned the treaty as “a direct threat to
American sovereignty”–conveniently ignoring that the offending
provisions were written out of the current treaty in a 1994 negotiation,
precisely to alleviate U.S. concerns.

One enduring shibboleth is that the International Seabed Authority
(ISA) created under UNCLOS is an unaccountable supranational bureaucracy
that will defy U.S. wishes and redistribute undersea wealth to
developing countries. This is pure nonsense, since the United States is
the only country guaranteed (if it accedes to the treaty) a permanent
seat on the ISA, a body that takes decisions by consensus–giving the
United States an effective veto over its decisions. It is true that the
ISA collects royalties for deep sea mining, but these remain extremely
modest–as one would expect from an arrangement that was effectively
negotiated by U.S. oil companies.

Nevertheless, Senator Jon Kyl of Arizona has proposed an enticing but misguided “compromise,” whereby
“Congress could enact a statute that makes the navigational parts of
the treaty…the law of the land,” and thereby “separate the wheat from
the chaff.” This purported solution is a sheer mirage. It would secure
no diplomatic or international legal benefits for the United States. Nor
would it secure maritime exploration rights to which Lockheed Martin
referred. Still, Kyl has already obtained the signatures of twenty-seven
colleagues, just seven short of the number needed to scuttle the
treaty. Treaty defenders must expose this gambit as an alluring but
ultimately destructive siren song.

Senator Kerry has promised that he will delay any vote on UNCLOS
until after the election, to avoid the “hurly-burly of presidential
politics.” This is a calculated gamble, given the potential constraints
of a lame duck congressional session. Champions will need to keep the
pressure on, and hold Congress’s feet to the fire to disregard the
absurd objections of treaty skeptics.

This article originally appeared at CFR.org, an Atlantic partner site.

Article source: http://www.theatlantic.com/international/archive/2012/06/-almost-everyone-agrees-the-us-should-ratify-the-law-of-the-sea-treaty/258301/

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