Sen. James Risch (R-ID) is one of many Republican Senators blocking the ratification of the U.N. Convention on the Law of the Sea. Photo: AP.
by Michael Conathan
Big Oil, the U.S. Chamber of Commerce, Lockheed Martin, some of the world’s biggest communications corporations, and the top brass of the U.S. military have been lobbying skeptical members on Capitol Hill to support an initiative they all feel is fundamental to U.S. interests—ratification of the U.N. Convention on the Law of the Sea.
The treaty, initially completed in 1982 and then modified in the early 1990s to address concerns raised by the United States, codifies customary international law and establishes rules and methodologies detailing the rights and responsibilities of nations when it comes to use and protection of the world’s oceans. One hundred and sixty-two other countries have ratified it, and the United States remains the only industrialized nation that has not joined the international community. (Other nonsignatories include such heady company as North Korea, Iran, Syria, and Libya.)
Key provisions of the treaty include granting each nation sovereignty over its territorial sea (out to 12 miles from shore) and extraction rights to resources in its exclusive economic zone (out to 200 miles). It also establishes standards for freedom of navigation in other countries’ waters, as well as resource extraction on the high seas—the area outside any nation’s exclusive economic zone.
The treaty’s supporters swear U.S. ratification will boost U.S. national security, spur investment in new technologically advanced industries, and increase U.S. access to rare-earth metals we would otherwise have to buy from China and oil and gas we would otherwise source from the Middle East. Yet these supporters face ideologically entrenched opposition.
Given traditional relationships on Capitol Hill, logic would dictate that this pushback would come from Democrats. After all, they don’t comprise the party traditionally affiliated with defending Big Oil and mining companies’ interests.
In reality, however, the Law of the Sea faces a steep uphill battle for approval in the U.S. Senate from conservative Republicans “still trotting out long-discredited talking points,” according to Stewart M. Patrick, senior fellow at the Council on Foreign Relations.
Here’s a sample of how the balance of support comes down on this treaty:
- Former Presidents George H. W. Bush, Bill Clinton, George W. Bush, and current President Barack Obama and his administration
- Five Republican former secretaries of state
- The current secretaries of defense and state, and the chairman of the Joint Chiefs of Staff
- Former Alaska Gov. Sarah Palin (R)
- U.S. Chamber of Commerce
- American Petroleum Institute
- Chamber of Shipping
- American Chemical Council
- Lockheed Martin
- AT&T, Verizon, and USTelecom
- One hundred and sixty-two other countries, including every other industrialized nation on the planet plus the European Union
- The Heritage Foundation, Cato Institute, and other conservative think tanks
- Iran, North Korea, Syria, Libya, and a handful of other less developed nations
Not much of a balance.
How is it that conservative senators who trust their corporate and military allies to guide them through virtually every other policy decision have suddenly decided their best buddies are so clearly wrong on this one particular issue? Let’s look at the most popular arguments against ratification.
Ratification will not sacrifice U.S. sovereignty
Since the endorsement of virtually every living U.S. military leader doesn’t seem to be sufficient to penetrate the web of deceit and paranoia woven by treaty opponents, my colleague Nina Hachigian penned a concise piece debunking their claims. She focuses primarily on the clear need to ratify the treaty to strengthen our position in negotiations with China over its claims to massive amounts of territory in the South China Sea.
But some, like Sen. James Risch (R-ID), have posited that ratification would compromise our sovereignty by forcing the United States to abide by other treaties and impose overly restrictive environmental regulations. Insinuating that ratification of Law of the Sea could force the United States to join other international agreements on climate change or other environmental protections, Sen. Risch told Secretary of State Hillary Clinton at a Foreign Relations Committee hearing last month that the Law of the Sea treaty had “Kyoto written all over it,” a reference to the Kyoto Protocol, the international agreement linked to the U.N. Framework Convention on Climate Change.
In response, Secretary Clinton cited the State Department legal team, saying, “there is nothing in the [Law of the Sea Convention] that commits the United States to implement any commitments on greenhouse gases under any regime, and it contains no obligation to implement any particular climate change policies.”
While Sen. Risch and his allies would likely disagree with such claims, they cannot deny that diplomats such as Secretary Clinton are the very people who would establish the U.S. position. So whose opinion should carry more weight: protectionist fear mongers or actual diplomats and policymakers?
At its root, the Law of the Sea treaty actually expands U.S. sovereignty by codifying what is currently customary international law—that a nation has jurisdiction over its extended continental shelf.
Ratification would not dole out oil royalties to terrorists
Treaty opponents frequently fall back on a spurious argument that if we ratify the treaty, we will be forced to transfer some oil and gas royalties to the International Seabed Authority, or ISA—a body created by the treaty to manage natural resource development beyond the 200-mile exclusive economic zone that each party state is granted under customary international law codified in the treaty.
One of the ISA’s key functions is to redistribute royalties generated from resource production on the outer continental shelf to other countries. Treaty opponents have suggested the ISA could agree to a distribution formula that would pay out royalties to U.S. enemies.
True, the treaty does contain revenue-sharing provisions. Companies are allowed to operate royalty free for the first five years of production, then are subject to payments to the ISA of 1 percent of production value beginning in year six and increasing 1 percent per year after that, maxing out at 7 percent in year 12. But this is where opponents’ trumped-up fears about paying terrorists parts ways with reality.
As Secretary Clinton pointed out at the Foreign Relations Committee hearing, the treaty specifically provides the United States with a permanent seat on the ISA council, a key decision-making body, effectively giving us veto power over how distribution would occur.
Yes, as the Heritage Foundation reports, final decisions would be made by the ISA’s general assembly. But the assembly would only be voting on policies the council recommended unanimously, meaning we could block any proposal from even getting to a vote at the general assembly. This de facto veto power means the United States would always be able to prevent royalties from being distributed to countries we have designated as state sponsors of terrorism.
To put this in terms treaty opponents can better understand, it would be as if every senator on the Foreign Relations Committee had to approve the Law of the Sea treaty before it could be considered by the full Senate for ratification. Under those circumstances, would the treaty ever see a ratification vote?
Ask Sen. Risch. Then think about how likely it would be for the United States to approve a payment formula that would send cash to Somalia or the Palestine Liberation Organization. It’s just not going to happen.
Until we ratify the treaty, no U.S. companies will operate on the extended continental shelf. Aside from a small pocket of territory in the western Gulf of Mexico where we have bilaterally negotiated a boundary with Mexico, companies cannot be granted the certainty that leases of these regions would not be challenged in international courts. Without becoming party to the treaty and gaining a seat at the negotiating table where decisions are made about how to partition out extended-shelf claims, we will be unable to assure industries that the international community will recognize a U.S. lease.
Businesses, even those with extremely deep pockets such as Big Oil and Lockheed Martin, have been very clear: If we don’t ratify, they won’t operate. Companies want to create those jobs, generate revenue, and increase domestic production. But no certainty means no investment. No treaty means no security, no jobs, no dollars, no resources. It’s that simple.
And it’s not just about oil and gas. Rare-earth metals are compounds integral to the production of modern devices including cell phones, hybrid cars, and even precision-guided missile systems. Currently more than 95 percent of rare-earth metals are produced in China, which has begun restricting its export.
But nodules found on the deep seabed—well outside even extended continental shelves—have “economically significant” amounts of rare-earth metals, and Lockheed Martin and other companies would like to begin exploration to determine the viability of tapping this source. Access to these areas that are beyond any national claim of jurisdiction will have to be regulated by an international body—in this case, the ISA—which explains Lockheed Martin’s support for U.S. ratification of the Law of the Sea.
The United States has a clear choice: Agree to limited revenue sharing under the treaty and bankroll more than 93 percent of total revenue from extended continental shelf and high seas activities, or get nothing at all and lose the ability to challenge claims made by other nations.
It all comes down to U.N. involvement
This brings us to the keystone in the arch of opposition. The treaty is officially titled the United Nations Convention on the Law of the Sea. And anything that bears the imprimatur of the United Nations is immediately and unconditionally dead on arrival in a certain tranche of senatorial offices. Sen. Jim DeMint (R-SC), for example, has suggested the United Nations is “ineffective, they’ve been wasteful, there’s corruption, and there is deep concern that there is a lot of anti-American sentiment.”
Here’s the thing: The United Nations has virtually no role in management, implementation, or execution of this treaty. It remains in the convention’s title only because the treaty was initially negotiated at the United Nations.
The treaty itself does not establish U.N. oversight of any aspect of its implementation. It creates separate management bodies, like the International Seabed Authority, which work to regulate multinational operations in international waters without a direct link to the organization that has attracted so much vitriol from the protectionist wing of the conservative movement.
Apparently, conservative conspiracy theorists’ fears about the United Nations’s purported push for creation of a world government are h4er than their ties to Big Oil, corporate America, and military contractors. As Secretary Clinton put it, “Whatever arguments may have existed for delaying U.S. accession no longer exist and truly cannot even be taken with a straight face.”
Speaking last week on a panel during Capitol Hill Oceans Week, former Coast Guard Commandant Thad Allen said the treaty “should have been ratified a decade ago. We ought to be ashamed of ourselves.”
If Senate Republicans insist on blocking this latest effort to put America on the side of international justice the shame will, indeed, be on them.
Michael Conathan is the Director of Ocean Policy at the Center for American Progress. This piece was originally published at the Center for American Progress.