Regulating the Ocean

   The U.N.’s Division for Ocean Affairs describes the Law of the Sea Treaty as “A comprehensive regime of law and order in the world’s oceans and seas establishing rules governing all uses of the oceans and their resources.  It enshrines the notion that all problems of ocean space are closely interrelated and need to be addressed as a whole…The convention comprises 320 articles and nine annexes, governing all aspects of ocean space, such  as delimitation, environmental control, marine scientific research, economic and commercial activities, transfer of technology and the settlement of disputes relating to ocean matters.”

 The Treaty also grants “land locked and geographically disadvantaged states…the right to participate on an equitable basis in exploitation of an appropriate part of the surplus of the living resources of the exclusive economic zone of costal states of the same region and sub-region…States are bound to promote the development and transfer of marine technology ‘on fair and reasonable terms and conditions’ with proper regard for all legitimate interests.”

 The Congressional Research Service describes the Law of the Sea Convention and the 1994 amendments as “a legal regime governing activities on, over, and under the world’s oceans…[they are] extensive, complex documents touching on a wide range of policy issues and U.S. interests.  From the perspective of the United States, some of the most significant areas addressed by the [Law of the Sea] Convention deal with naval power and maritime commerce, coastal State interests, marine environment protection, marine scientific research, and international dispute settlement.  The [1994] Agreement focuses on deep seabed mining issues, revising and nullifying key provisions of the Convention.”

   The U.S. has one of the world’s largest coastlines and perhaps the foremost maritime concerns.  This prompted President Reagan to refuse to sign the original version of the document, although he stated that “The U.S. will accept and act in accordance with the provisions of the Convention relating to traditional (non-seabed) uses of the ocean, such as navigation and over-flight.”  As noted by the U.S. State Department, He was concerned that:

·   free market approaches to exploiting the oceans resources were not employed;

·   excess bureaucracy was involved;

·   the U.S. wasn’t guaranteed a permanent seat  on the seabed council;

·   the U.S. would have to transfer technology to other nations; and

·   the treaty didn’t provide guaranteed access to future qualified U.S. miners.

                                            SUPPORT

   Since the treaty was modified in 1994 to reflect some of those concerns, Presidents Clinton, G.W. Bush, and Obama have supported ratification of the Treaty.

   Support for the treaty cuts across party lines.  Democrat John Kerry, as chair of the Senate Foreign Relations Committee has pursued the matter, with the support of most Democrats, including Secretary of State Clinton and Defense Secretary Panetta, who believe the treaty might serve as a vehicle to constrain Chinese actions in the South China Sea.  They are joined by prominent Republicans such as Henry Kissinger, George Schultz, James Baker III, Colin Powell and Condoleezza Rice, who collectively penned a recent pro-signing article in the New York Times, claiming that the U.S. would gain economic and military benefits.  They were particularly concerned with resource-rich areas such as the Arctic, where the Russians have staked legally questionable claims.

   The Council on Foreign Relations has emphasized what they perceive to be the Treaty’s benefits to the U.S. military:

“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’ 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.”

   Advocates also claim that new levels of piracy, terrorism, and the threat of rising sea levels make ratification necessary.

                                          OPPOSITION

   Opponents (who have coined the acronym L.O.S.T. to describe the treaty) both elected officials and in the private sector, continue to note that the treaty doesn’t grant any provable benefits to the U.S. that America’s naval power, advanced technology, and enterprising private sector don’t already provide. Further, since the U.S. has the most advanced technology and the greatest ability to utilize the ocean’s resources, it would essentially be providing numerous and highly valuable benefits to other nations and interests and receive almost nothing in return.

  Opposition has been substantial in the United States Senate, where 27 Republican members recently delivered a letter to Majority Leader Harry Reid stating that the treaty “reflects political, economic and ideological assumptions which are inconsistent with American values and sovereignty.”  Noting that the Treaty includes “redistribution of the wealth from developed to undeveloped nations” and other provisions harmful to U.S. interests, the 27 senators stated they are “particularly concerned that United States sovereignty could be subjugated in many areas to a supranational government” and that “compulsory dispute resolution could pertain to public and private activities including law enforcement, maritime security, business operations, and nonmilitary services performed aboard military vessels.”

  Senate opponents remain concerned that portions of the treaty threaten American and free market interests.  They point to the Treaty’s preamble, which notes that “the area of the seabed and ocean floor and the subsoil thereof, beyond the limits of national jurisdiction, as well as its resources, are the common heritage of all mankind, the exploration and exploitation of which shall be carried out for the benefit of mankind as a whole, irrespective of the geographic location of states.”

  Senators Hatch and Conyn describe the provisions of the treaty as an “international tax” that would transfer billions, if not trillions, of dollars out of the American economy into an international body, as well as entities that may well be hostile to U.S. interest.  Under the treaty, non state groups, such as the PLO, could demand some of the benefits of oceanic resources. Hatch and Conyn note that “U.S. companies would be forced to give away the very types of innovation that historically have made our nation a world leader.”

   The United Nations Law of the Sea Treaty Information Center notes that former Attorney General Ed Meese believes that the treaty is “Out of step with the concepts of economic liberty and free enterprise…”

     U.S. News contributing editor Peter Roff emphasizes that the treaty “is one more step towards a system of global governance under which U.S. sovereignty would be subordinated to an international system managed by an unelected, self-perpetuating form of bureaucratic aristocracy that cares little for democratic traditions…[it] would do irreparable harm to U.S. military and intelligence operations and would force the United States to hand over proprietary technology to countries actively hostile to American interests.

   The Competitive Enterprise Institute‘s analysis of the treaty notes that “at a time when U.S. consumers are struggling with the rising costs of gasoline, the U.S. would eventually have to share oil revenues from development of the Outer Continental Shelf (OCS) beyond 200 nautical miles-roughly 14 percent of the OCS. The royalty rate under Article 82 of the Treaty hits 7 percent by the 12th year of production. The proceeds from U.S. oil exploration would be distributed by the International Seabed Authority to its member states-namely, the Third world majority.  The Treaty best provisions-covering navigation, for instance-largely codify existing international law.  Its worst provisions-those creating the seabed regulatory regime-would discourage future minerals production as well as punish entrepreneurship in related fields involving technology, software, and intellectual property that have an ocean application.”