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Law of the Sea dies again in the Senate Opposition to the U.N. treaty in the U.S. Senate nixes the possibility of U.S. treaty ratification in current Congress term Alan Bailey Petroleum News
Like a Flying Dutchman of the political ocean, U.S. ratification of the United Nations Convention on the Law of the Sea appears to again be dead in the waters of the U.S. Senate. On July 16 Sen. Rob Portman, R-Ohio, and Sen. Kelly Ayotte, R-NH, penned a letter to Senate Majority Leader Harry Reid announcing their opposition to ratification of the U.N. treaty, thus apparently nixing any possibility of the Senate agreeing to ratification during the current term of Congress.
Under the terms of the U.S. constitution treaty ratification requires 67 affirmative votes in the Senate, Portman wrote in a press release announcing the sending of the letter. With 31 senators having previously signed a letter in opposition to the treaty and an additional senator also having announced his position, there are now insufficient votes to approve treaty ratification, Portman said.
The Convention on the Law of the Sea consists of an international treaty establishing rules for all aspects of ocean use, including the rights of passage in or over ocean waters; the territorial sovereignty of coastal nations; the geographical limits of territorial seas and economic exclusion zones; and the environmental protection of the oceans. The convention includes procedures for the peaceful resolution of disputes regarding the use of the world’s oceans. The convention also requires that the International Seabed Authority, consisting of representatives from the states that are party to the convention, administer mining in the deep seabed beyond national jurisdictions.
Continental shelf U.S. supporters of the treaty, among whom are President Obama, President George W. Bush, the U.S. Coast Guard, Sen. Lisa Murkowski, R-Alaska, and Sen. Mark Begich, D-Alaska, say that treaty ratification will enable the United States to lay claim to huge areas of continental shelf that would otherwise remain in jurisdictional limbo or perhaps be claimed by some other country.
Under the terms of the treaty it is possible for a nation to use certain specified geologic and geographic criteria to extend its legally recognized continental shelf beyond the customary 200-mile limit of that nation’s economic exclusion zone. And, with the possibility of economic rewards from resource development on the extended continental shelf, countries, including those around the Arctic Ocean, have been scrambling to map the seabed in anticipation of making claims under the treaty.
“If the U.S. were to become a party to the treaty, we could lay claim to an area in the Arctic of about 450,000 square kilometers, or approximately the size of California,” said Sen. Lisa Murkowski during on a forum on the Arctic in 2008. “If we do not become a party to the treaty, our opportunity to make this claim and have the international community respect it diminishes considerably, as does out ability to prevent claims like Russia’s from coming to fruition.”
The U.S. Navy and the U.S. Coast Guard also see the treaty as a means of ensuring the rule of law on the high seas.
“I’ve never understood the resistance to this,” said Admiral Robert Papp, commandant of the U.S. Coast Guard, during an Aug. 2011 Senate hearing. “This treaty seems to me to give us great understanding and predictability in how we deal with the freedom of the seas and how we operate on the seas. And as a law enforcement agency that’s responsible for operating within the laws, this is just vital for us to carry out our responsibilities.”
Sovereign rights But opponents of the treaty, including a number of U.S. senators, say that treaty ratification would represent an unwarranted give away of U.S. sovereign rights.
In their July 16 letter to Sen. Reid, Sens. Portman and Ayotte said that the breadth and ambiguity of the treaty establishes a complex regulatory regime that “applies to virtually any commercial or governmental activity related to the oceans.”
“Proponents of the Law of the Sea aspire to admirable goals, including codifying the U.S. Navy’s navigational rights and defining American economic interests in offshore resources,” the senators wrote. “But this treaty’s terms reach well beyond these good intentions.”
The treaty authorizes international legislative and judicial bodies to rule on various open-ended commitments relating to issues such as marine pollution, thus binding the United States in advance to as-yet unknown requirements and liabilities, the senators wrote. And under the terms of the treaty, international judgments “however burdensome or unfair” could be enforced in the United States, on a par with decisions of the U.S. Supreme Court, they wrote.
Customary law Moreover, customary international law already encompasses rights that the treaty sets out to clarify, the senators wrote. The U.S. has longstanding claims to the 200-mile exclusive economic zone that the treaty defines, and the U.S. has in the past successfully negotiated with Russia and Mexico over claims to the extended continental shelf.
“Similarly the treaty’s navigational regimes reflect the current practices of the U.S. navy, and we believe that our maritime interests are best secured by maintaining U.S. naval power beyond challenge,” the senators wrote.
Ironically, given the polarized U.S. debate over the treaty, the United States was one of the prime movers in the negotiations that led to the original formulation of the treaty back in 1982. At that time, with President Reagan objecting to some treaty terms relating to deep seabed mining, the U.S. did not sign up to the treaty. Following subsequent pressure to resolve the problems with the treaty, a treaty amendment was negotiated: In 1994 President Clinton declared that this amendment had fixed the deep seabed mining issues.
Since then 162 nations and entities such as the European Union have ratified the treaty, while 141 nations and entities have ratified the treaty amendment. But with the U.S. Senate consistently blocking treaty ratification over the years, the United States has yet to join the list of signatories.
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