Outlaw of the Sea

The Senate Republicans' UNCLOS Blunder

When U.S. Senators Kelly Ayotte (R-N.H.) and Rob Portman (R-Ohio), both vice presidential hopefuls, recently declared their opposition to the UN Convention on the Law of the Sea, they virtually guaranteed that it would be dead on arrival if it were sent to the Senate. A group of 34 senators, including Ayotte and Portman and led by Jim DeMint (R-S.C.), is now on the record promising to vote against UNCLOS, which is enough to make getting the two-thirds majority necessary for ratification impossible.

UNCLOS was first negotiated 30 years ago. But back then, U.S. President Ronald Reagan objected to it because, he argued, it would jeopardize U.S. national and business interests, most notably with respect to seabed mining. A major renegotiation in 1994 addressed his concerns, and the United States signed. Now, the U.S. Navy and business community are among UNCLOS' strongest supporters. So, too, was the George W. Bush administration, which tried to get the treaty ratified in 2007 but failed due to Republican opposition in the Senate.

Today's opponents, including Ayotte, DeMint, and Portman, focus on two issues. First, they argue, the treaty is an unacceptable encroachment on U.S. sovereignty; it empowers an international organization -- the International Seabed Authority -- to regulate commercial activity and distribute revenue from that activity. Yet sovereignty is not a problem: During the 1994 renegotiation, the United States ensured that it would have a veto over how the ISA distributes funds if it ever ratified the treaty. As written, UNCLOS would actually increase the United States' economic and resource jurisdiction. In fact, Ayotte, DeMint, and Portman's worst fears are more likely to come to pass if the United States does not ratify the treaty. If the country abdicates its leadership role in the ISA, others will be able to shape it to their own liking and to the United States' disadvantage.

The opponents' second claim is that the treaty would prevent the U.S. Navy from undertaking unilateral action, such as According to Admiral Samuel Locklear, commander of U.S. Pacific Command, however, "The convention in no way restricts our ability or legal right to conduct military activities in the maritime domain." On the contrary, as U.S. Defense Secretary Leon Panetta put it, U.S. accession to the convention "secures our freedom of navigation and overflight rights as bedrock treaty law." Even so, critics point out, the ultimate indispensability of U.S. naval power means that the country can receive the benefits of the convention without being bound by it. Since the world seems to have functioned perfectly well in this halfway house for some time, it would make no sense to codify the convention now. It would be comforting if all that were true. It isn't.

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