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OP-ED: U.S. Adrift on Law of the Sea

UNITED NATIONS, Aug 3 2012 (IPS) - A little overshadowed by the Olympics, the Yeosu 2012 Expo is, in its own way, doing more than the London Games to promote global harmony – and without stirring up the waters the way the British did when they posted the ROK flag for the DPRK women’s soccer team.

Next weekend, as the Expo holds another session celebrating the thirtieth anniversary of the Law of the Sea, with an Asian perspective, it is worth remembering that there are people in the U.S. establishment every bit as pugnaciously ideological as any Pyongyang commissar – and above all on the question of the Law of the Sea (ITLOS).

It has been five years since the George W. Bush administration, not the most U.N.-friendly of recent presidencies, declared the need for the U.S. to ratify the treaty, backed by the Pentagon and the Republicans on the Senate Foreign Relations Committee.That was already 25 years after the rest of the world had finished drafting the treaty.

Since then, the melting sea ice in the Arctic and the competing claims to seabed resources there under the former polar ice cap, have accentuated the U.S. need for the treaty. Not just the Navy, but telecoms, maritime and oil lobbies have put their weight behind ratification.

Recently an open letter signed by previous Republican secretaries of state also called for it.

On Jul. 16, however, 34 Republican senators signed a letter opposing ratification, which is one more than necessary to block the two-thirds majority necessary.

It is a moot point whether the opposition to the treaty from inside the U.S. is motivated by specific objections to its provisions or just a generalised conservative aversion to all forms of international law.

However, in any case it is a sad commentary on the U.S. government that a bigoted minority has thwarted U.S. participation in a convention universally welcomed by all rational U.S. political factions and which has already been signed by 162 other countries.

Former Canadian minister of state for external affairs Mark MacGuigan described the convention’s truly global scope at the conference which produced the final draft:

“The Conference is not merely an attempt to codify technical rules of law. It is a resource Conference: it is a food Conference; it is an environmental Conference; it is an energy Conference; it is an economic Conference; it is maritime-boundary delimitation Conference; it is a territorial-limitation and jurisdictional Conference; it is a transportation, communications and freedom-of-navigation Conference; it is a Conference which regulates all the uses of the ocean by humanity.

“Most important, it is a Conference which provides for the peaceful settlement of disputing the oceans. It is, in other words, a Conference dedicated to the rule of law among nations.”

Which is, perhaps, why some in the U.S. want nothing to do with it.

In fact, the treaty was carefully crafted over years of negotiations to provide inducements to countries to join the convention since it went beyond customary international law in what it offered signatories – and in an effort to woo the U.S. signature, Washington’s concerns were taken into account at every stage.

It was relatively easy to establish conventions on outer space, and indeed on the Antarctic, since there was little or no commercial or military activity going on there. Indeed, in 1957, before U.S. isolationism and exceptionalism resurfaced as potent political forces in Washington, the U.S. had signed the Antarctic Treaty, which froze all the old territorial claims and kept the icebound continent free from military action and land grabs. The treaty has stood the test of time.

But ITLOS had to take into account not only the millennia-long history of human endeavours on the oceans, but also the future aspirations, like sea bottom mining. It took decades of intricate negotiations to take into account the competing demands of countries that included not only the traditional maritime nations but those landlocked countries that understandably claimed rights to seabed resources that are, as it were, the shared patrimony of the whole world.

The very first case to go to the Hamburg-based International Tribunal on the Law of the Sea demonstrated the need for it. In 1997, the MV Saiga, an oil tanker registered in St Vincent and the Grenadines, owned by Cypriots, chartered by Swiss, managed by a Scottish company, officered by Ukrainians and crewed by Senegalese, had been bunkering fishing vessels off the coast of Guinea when patrol boats from there seized the ship and detained the crew.

Guinea claimed a customs zone that extended 250 miles from its coast. The tribunal ordered the release of the ship and crew on payment of a bond, and, after consideration, it threw out the Guinean claim and ordered the ship and its crew freed. Under the convention, Guinea was not entitled to claim more than 200 miles for its exclusive economic zone.

Conventional law could not have coped with such complex jurisdictional disputes, but ITLOS can. Only last year, the tribunal resolved its first boundary dispute between Myanmar and Bangladesh, to apparent mutual satisfaction – just as it could adjudicate on Russian claims to the seabed under the North Pole that compete with those of Canada and the U.S.

But Washington’s failure to ratify the treaty knocks it out of the process, hence the rush of interest by all but most blinkered. It is not only bad for the U.S., it sends a wrong signal to the rest of the world – not least to the countries surrounding the China Sea.

Half a dozen navies are circling round asserting competing claims to atolls and islets with their territorial waters. They are interested in the oil under the water, but their unresolved disputes are like gasoline waiting for a match. Clearly, an arbitrated legal adjudication could resolve the situation.

But the biggest navy in the area, with treaties with many of the claimant nations, belongs to a nation that has yet to sign up for the most appropriate body of law and institutions to cope with the complexity of the region.

One has to feel sympathetic to President Barack Obama, dealing with an opposition whose concerns about economic and military conflagrations come second to their desire to see him out the White House.

But ratification is not only good for the U.S. and for the world, it would allow the president, backed by all those Republican secretaries of state, presidents and chairmen of the Foreign Relations Committee, to expose the ideological obduracy of his opponents. President Obama should at least sign the treaty and challenge Republican presidential candidate Mitt Romney to explain why his supporters oppose ratification.

We can assume that for some of them, it is simply a case of going along with raucous idiocy, and they might reconsider if the White House summoned some of those oil and defence lobbyists to make a call.

*Ian Williams is a senior analyst at Foreign Policy In Focus, and columnist, Tribune.

 
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  • Michaelkplatzer

    So true- but why Obama has also pulled back from Comprehensive Test Ban Treaty (Prague Speech) and now the Arms Trade Treaty.  He has become the “cautious president” and lost my support

  • James C. McGowan

    Instead of being obsessed with economic and military interests, the LOS should first and foremost address threats to the seas. It should ban sea bottom mining, restrict oil drilling and tanker traffic, protect endangered stocks, eliminate plastic pollution, etc… If it focuses on divvying up resources in order to get signatures, it will only accelerate the death of the seas. I have been following this process since Arvid Pardo was involved, and unfortunately, it has failed to keep up with and respond to the increasingly dire state of the oceans.

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