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Time to ratify Law of the Sea?

Amanda Coyne

Even when referring to it by its more colloquial name, the Law of the Sea treaty evokes pirates, planks and scurvy. It sounds like something that might have been fought for in another century, the subject of a Joseph Conrad novel, perhaps, when imperial nations were plotting to dominate trade in ivory and cocoa beans, gold and human labor.

The full name, the United Nations Convention on the Law of the Sea, sounds even more anachronistic, and to some who bristle at anything to do with the U.N., even nefarious.

But no matter the name, it's at the heart of the very modern-day scramble over modern-day resources; namely, minerals, oil and gas. Lots of oil and gas, particularly in Arctic waters. The treaty, which sets the rules for ownership of the ocean and all of its bounty both above and below the seabed floor, has the potential to affect United States interests in the Gulf of Mexico, areas off the Pacific Northwest, and California.

But the largest spoils are guessed to be in the Arctic, where the U.S. Geological Survey estimates as much as a third of the world's undiscovered natural gas and 13 percent of the world’s undiscovered oil, billions of barrels, may be in the offshore Arctic.

Supporters from all sides, from environmentalists to industry, say that if the U.S. doesn’t ratify the Law of the Sea -- which is easier said than done given that ratifying a treaty requires a supermajority vote of 67 senators -- the country stands to lose out on both potential riches and environmental protections.  

So far, the European Union and 160 nation states have ratified treaty. The U.S. is one of 18 countries that have not done so.

Law of the Sea: A political hot potato

For years, critics of this and other treaties warn that in signing it, the U.S. effectively cedes its sovereignty. In the words of former Ronald Reagan aide James L. Malone, ratifying the Law of the Sea would be to succumb to "collectivist ideologies of a new repudiated system of global central planning." 

Such arguments have been raging since the 1970s, since the treaty was first being debated among ambassadors to the United Nations. Its death knell came in 1982, when President Reagan refused to sign it because of objections to seabed mining issues. Despite efforts by President Bill Clinton in 1994 to address Reagan's concerns, that bell has reverberated.

Both Presidents George H.W. and George W. Bush also sought ratification of the Law of the Sea during their administrations. It looked as promising as ever when, shortly after re-election, new Secretary of State Condoleeza Rice said she'd like to see it ratified "as soon as possible." The environmental community, the military, the oil, shipping and fishing industries and the top Democratic and Republican members of the Senate Foreign Relations Committee all converged to get it done.

But opponents again portrayed the treaty as a means for the U.N. to regulate undiscovered resources, "restrict mineral development" and redistribute approved production in "economic zones" managed by an International Seabed Authority, headquartered in Jamaica. Signing on, these opponents said, would be akin to a "new global order."

Enter a supportive Obama administration, along with Alaska U.S. Sens. Lisa Murkowski, Mark Begich and now Secretary of State Hillary Clinton, who announced her steadfast support in a meeting of Arctic states in Greenland in March. She said ratification was "way overdue."

"It's been challenging in our political system to take the kinds of actions that we know are dictated by the science and by what we see in front of our eyes," Clinton said at a news conference in Greenland.

The environmentalists still firmly support the treaty, as do industrialists, both of whom believe that not signing the treaty puts them in a disadvantaged position. There was much talk about the treaty at the recent Arctic Imperative Summit, sponsored by Alaska Dispatch.

The general consensus among Arctic dignataries, international wealth managers, prominent U.S. investors and state lawmakers was that the treaty needed to be signed. Even former Gov. Sarah Palin supported the Law of the Sea and in 2007 wrote a letter to the Senate to express her support:

... Arctic nations have recently asserted claims to submerged lands off their coasts. The Convention on the Law of the Sea establishes the framework for these assertions. ... If the U.S. does not ratify the convention, the opportunity to pursue our own claims to offshore areas in the Arctic Ocean might well be lost. As a consequence, our rightful claim to hydrocarbons, minerals and other natural resources could be ignored. ... If the U.S. does not ratify the convention, we will be denied access to the international community to adjudicate claims to submerged lands in the Arctic. 

Sen. Murkowski is working hard on her side of the aisle to drum up support. "The opposition is on the Republican side, plain and simple," she said. "I think we can get 67 votes needed. And I need to work Republican colleagues to do that."

This year, Murkowski said, is that year. At long last. But then again, the same has been said by various politicians for 40 years. What, if anything has changed?

Global warming heats support

A warming Arctic climate has changed the political calculus, number one. The thawing Arctic Ocean is opening up shipping, tourism and oil exploration, with the eight countries bordering it all vying to claim that natural resource-rich territory lies within their respective "economic zones." The big question is who has the right to the spoils. Enter the treaty, signatories to which are legally bound to the rules and regulations it creates.

Thanks in part to legislation passed by former U.S. Sen. Ted Stevens, the United States routinely claims special rights -- particularly fishing and transportation rights -- within 200 nautical miles of their coasts. These are called Exclusive Economic Zones. But the Law of the Sea treaty could extend those rights if a country can prove to the United Nations that the continental shelf -- the underwater portion of the continent -- extends beyond that limit. 

The Arctic, to be sure, is not the only location where the U.S. might claim an extended continental shelf. Other places are in the Northwest and California coasts and in the Gulf of Mexico. But the Arctic's outer continental margin is believed to be the biggest, extending anywhere from 350 to 600 miles off the coast.

The Russians have mapped their ocean floor and have submitted the findings to the U.N. Norway has submitted, and Canada is preparing to. If the treaty is not ratified, the U.S. can't legally contest any resource disputes occurring in these waters.

We "can’t challenge others' findings," Murkowski said, calling that a "big incentive" to ratify. 

Shifting political winds

The idea for the Law of the Sea treaty began to be floated at world forums in 1967, and the guts of it were written in 1974. The U.S. has never been in love with the idea of treaties, which subject the country to the rules on international law. And this one is no different. The reaction against it has been at times so intense that it’s never been put up for a full vote on the Senate floor.

President Reagan, taking issue with mining restrictions, killed it in 1982; however, he did say Law of the Sea contained "many positive and very significant accomplishments." Despite the treaty's amendment since the 1980s, Reagan's objections -- as they are apt to do -- rang throughout the conservative movement, and still live on today.

"There is a group of individuals," said Murkowski, "who, as a general rule will oppose any international organization, or agreements they think might undermine U.S. sovereignty." Those voices are still loud, to be sure, but they may be being increasingly dimmed by economic realities.

"The public increasingly understands that the U.S. needs to be part of it the treaty to protect our interests," said William Eichbaum, vice president for Arctic and marine policy at the World Wildlife Fund.

Eichbaum has been working on this issue for years. And he sees a changing political reality. Law of the Sea can't be passed without Republican support, he said. Moderate Republicans recognize a fiery isolationism at play in the Senate -- and the party at large. And moderates understand, Eichbaum said, that this year might be the last year the treaty has any chance of passage.

"If the Senate becomes as conservative in the 2012 elections as the House was in 2010, there’s no chance of passage," he added.

Eichbaum predicted that a gang of moderates would join Democrats to ratify Law of the Sea, much the same way Republicans came together to vote for the Strategic Arms Reduction Treaty in 2010.

Even Sen. John McCain, who supported it before he was against it when he ran for president in 2008, seems to recognize that international agreements must be honored on the high seas. In a recent speech on tensions in the South China Sea, McCain made mention of the framework of the Law of the Sea without mentioning it by name.

It's difficult to bring the treaty up for a vote when the U.S. is fighting three wars, unemployment is stuck above 9 percent and the nation faces default on its debts, Murkowski said.

Difficult, but important, and maybe doable.

A village elder from Wales, Alaska -- a village in Northwest Alaska on the Seward Peninsula, jutting toward Russia -- spoke knowledgeably about shipping traffic through the Bering Strait. She spoke about a warming climate. Thinning ice. But she didn't know why those ships were staying on the Russian side of the Strait, where there appeared to be a lot more activity.

Where the seas have a law.

"That just shows you how much work we've got a lot of work to do to educate the public," Murkowski said.

Contact Amanda Coyne at amanda(at)alaskadispatch.com