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Saturday, April 4, 2020
Marina Litvinsky and Jim Lobe*
WASHINGTON, May 6 2009 (IPS) - The U. S. should quickly accede to the U.N. Convention on the Law of the Sea, according to a new Council on Foreign Relations (CFR) report.
Concluded in 1982 after some 15 years of negotiations, the Law of the Sea Treaty (LOST) is the international accord that sets rules governing most areas of ocean policy, including navigation, over-flights, exploitation of the seabed, conservation and research.
The report released by the influential think tank, “The National Interest and the Law of the Sea,” contends that ratifying LOST would benefit U.S. national security as well as the country’s economic and environmental interests. It would also help U.S. interests in combating piracy and in establishing its claims to the increasingly contested Arctic region, the report said.
“To fail to join the convention this year would be to lose a unique opportunity [as] the United States is experiencing a conjunction of circumstances that includes the ‘fresh start’ effect of a new administration, the ascendance of two national security strategies founded on conflict prevention and partnership building, and a community of nations eager for renewed American multilateralism,” according to the report.
The nearly 30-year-old treaty has been signed and ratified by 156 countries and the European Community, though not by the U.S. It was rejected by then-President Ronald Reagan who, under pressure from big U.S. mining and energy companies, objected to its provisions for deep-sea mining, particularly its requirements that mining claims be regulated by a Jamaica-based International Seabed Authority (ISA).
Reagan ordered the U.S. government to abide by all other sections of the treaty, which amounted essentially to a compilation and codification of existing international customary and maritime international law.
“Like the president and the secretary of defence, I strongly support U.S. accession to the Law of the Sea Convention,” Alexander Vershbow, Obama’s choice for the post of assistant secretary of defence for international security affairs, told the Senate Armed Services Committee during his confirmation hearings in late March.
“By becoming a party to the convention, we would send a clear signal to all nations that we are committed to advancing the rule of law at sea. Additionally by joining the convention, we would provide the firmest possible legal foundation for the navigational rights and freedoms needed to project power, reassure friends and deter adversaries, respond to crises, sustain combat forces in the field, and secure sea and air lines of communication that underpin international trade and our own economic prosperity.”
The report, which was written by visiting CFR fellow Scott Borgerson, asserts that joining the convention will allow the U.S. to extend its sovereignty over as much as one million square kms of additional ocean and the resources beneath it.
Borgerson also argues that joining the treaty will advance other critical U.S. interests, such as leading anti-piracy operations in the Gulf of Aden, opening up deep seabed mining to U.S. companies, championing environmental initiatives, and securing U.S. navigation rights for U.S. naval and commercial ships in strategic waterways.
Additionally, joining the treaty would also bolster the Proliferation Security Initiative (PSI), a Bush administration initiative under which 15 core mainly western member states, including the U.S., and some 50 other co-operating states, claim the legal authority to interdict weapons of mass destruction (WMD) or their components on the high seas.
Supporters of the treaty contend that that the principles embodied in the treaty are the cornerstone of U.S. naval strategy and create the legal basis for prosecuting pirates and other non-state actors. The U.S. Navy has long supported Washington’s adherence to LOST.
Advocates highlight how oceans are, by their very nature, international and thus require a regime of international law and collaborative approaches to their management.
Opponents depict the treaty as a dangerous lethal threat to U.S. national sovereignty and an unacceptable constraint on Washington’s freedom of action.
“Our influence in the world derives from our economic power and most especially our naval power,” Frank Gaffney, the president of the far-right Centre for Security Policy (CSP), told the National Journal last November.
“And I cannot for the life of me see how those are going to be enhanced by being party to a treaty that imposes these constraints and limitations, and subordinates our sovereignty and decision-making to these multilateral entities (established by the treaty),” added Gaffney, a neo-conservative who has been the treaty’s most prolific foe.
Supporters counter by saying that the convention expands the rule of law over the vast expanse of the world’s oceans and contains provisions that could actually extend U.S. sovereignty over hundreds of thousands of square kms.
Though opponents say that the U.S. already adheres to and is thus protected by the treaty’s provisions under customary international law, advocates argue that because customary international law is constantly evolving, it does not offer the stability and predictability of the treaty.
One of its provisions pertains to the Arctic, a region undergoing rapid environmental change highlighted by faster-than-expected melting of the polar ice pack, and the potential exploitation of the natural resources, including oil, that lie beneath the surface or under its seabed.
The so-called “race to the Arctic” for new shipping routes and oil exploration rights is being carried out with growing intensity among the five countries that border the Arctic Ocean – Norway, Denmark, Russia, Canada, and the U.S., all of which, except the U.S., adhere to LOST. “By sitting on the sidelines,” according to a ‘National Journal’ article published last November, Washington may be jeopardising its claims in the region.
Gaffney’s views have been shared by a sufficient number of Republican senators to stave off ratification, which requires a two-thirds super-majority in the upper chamber, for 15 years. They have effectively prevented a floor vote on the treaty, although it was approved as recently as 18 months ago by the Senate Foreign Relations Committee by a 17-4 margin.
The current Committee chairman, Sen. John Kerry, and the ranking Republican, Sen. Richard Lugar, are long-time supporters of LOST and are expected to pass it in committee later this year, although hearings have yet to be scheduled. Much depends on how high a priority the Obama administration places on its ratification this year.
Quick action by the Senate would send “a tangible signal that the United States remains committed to its historic roles as an architect and defender of world order,” according to Borgerson.
“From this perspective, acceding to the convention is a low-hanging fruit to advance a much broader U.S. foreign policy agenda. It has the broadest bipartisan domestic support; supplies the most direct national security, economic, and environmental benefits for the United States; and has genuine global reach,” he noted.
*Jim Lobe’s blog on U.S. foreign policy can be read at http://www.ips.org/blog/jimlobe/.
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