Debating the Law of the Sea

On April 16, 2008, Global Solutions' executive vice president Don Kraus participated in a panel discussion on the U.N. Convention on the Law of the Sea sponsored by the Washington DC Bar Association's International Law Section and the American Society of International Law.  Mr. Kraus was on a panel with Doug Bandow, Competetive Free Enterprise Institutie, Steven Groves, Heritage Foundation, and Brian Petty, International Association of Drilling Contractors.  Kraus and Petty spoke in support of ratification.  Bandow and Groves were opposed. Below is Mr. Kraus's opening statement:

Thank you Spencer. I appreciate your hard work in pulling today’s program together.  What I’d like to do during this brief opening statement is to review what the Law of the Sea Convention actually does and give an overview of why United States accession to the United Nations Convention on the Law of the Sea is important and urgent.  

Let me begin with the words of President Bush, a man who I rarely quote, who said last May that,  “Joining will serve the national security interests of the United States, including the maritime mobility of our armed forces worldwide. It will secure U.S. sovereign rights over extensive marine areas, including the valuable natural resources they contain. Accession will promote U.S. interests in the environmental health of the oceans. And it will give the United States a seat at the table when the rights that are vital to our interests are debated and interpreted.”

This treaty defines maritime zones, protects the environment, preserves freedom of navigation, and establishes clear guidelines for businesses that depend on the sea for resources. The Law of the Sea contains a unique dispute resolution mechanism that obligates nations to peacefully settle their differences. Until the United States ratifies the treaty its rights at sea will lack international recognition. It is our firm belief that joining this treaty will significantly advance U.S. goals and help to restore our international leadership role.  

The United States has a unique role in the world. The fact that our navy is globally deployed and that we can and will operate anywhere and any time means that having a clear set of rules to guide conduct on the seas promotes our interests.  It is because we are exceptional that we need to be part of this treaty.  Its rules function as a force multiplier for us, and to walk away from the table, to not play a leadership role in maintaining these rules would be nothing short of negligence.  Joining the convention will ensure that other countries recognize the navigational and overflight rights that our armed forces depend on. These rights will help to keep us safe, defend our interests at sea, and enhance collaboration with our allies.

Our absence from the convention handicaps our ability to exploit (or conserve) precious marine resources and protect our investments. The U.S. is already far behind in the race to stake claims in the resource-rich Arctic seabed. Joining would expand our control over an area larger than the continental U.S. and give our businesses access to resources in the deep seabed, where no nation can set the rules by itself.

Joining the convention would put us in a position to further global efforts to protect marine life, conduct research, and prevent marine pollution. U.S. laws are already strong in these areas; if we join, we can better urge other countries to fulfill their obligations to keep the seas clean and safe for future generations.

The Law of the Sea has been described as the most comprehensive and progressive protection for the oceans of any modern international accord. The convention safeguards imperiled marine habitats by strengthening state sovereignty over the enforcement of environmental regulations in each state’s Exclusive Economic Zone (EEZ) up to 200 miles offshore. These internationally accepted regulations empower states to stop harmful pollution and ocean dumping caused by previously unregulated ships. The convention also contains special measures to save endangered whales, salmon, and other marine mammals. It helps the fisheries of coastal states by allowing them to set limits within their EEZ. It also protects valuable migratory fish stocks such as tuna and billfish on the high seas, beyond the 200-mile limit.

In addition to protection of the marine environment, the Law of the Sea promotes the maintenance of international peace and security by replacing a plethora of conflicting claims among coastal states with a 12-mile territorial limit and the aforementioned 200-mile EEZ. These regulations set a definitive limit on the oceanic area over which a nation may claim jurisdiction. However, the convention also protects the freedom of navigation on the high seas as well as the right of innocent passage, including non-wartime activities of military ships.

It is noteworthy that nations can claim mineral rights to the end of the continental shelf. This favors the United States, one of the few nations with broad continental margins, particularly in the North Atlantic, the Gulf of Mexico, the Bering Sea, and the Arctic Ocean. However, countries must ratify the treaty for their claims to be internationally recognized. In so doing, the United States could expand its areas for mineral exploration and production by more than 291,000 square miles.

Beyond this zone the Law of the Sea has established the International Seabed Authority, an autonomous intergovernmental body based in Kingston, Jamaica, which was created to organize and control all mineral-related activities in the international seabed area beyond the limits of national jurisdiction.

Let me note the broad support that current exists for ratification of this important convention.  I have worked with coalitions since the mid-90’s and this is the broadest coalition I have ever worked with.  All of the marine industries include oil, shipping, fishing and Telecommunications companies who lay under sea cable are supportive. This is a uniquely diverse coalition whose members represent military organizations, peace groups, environmental organizations, research institutes, in addition to the ocean industries affected by the treaty.  It’s a sight to behold when we visit senate staff and they realize that the representative from the American Petroleum Institute is sitting next to the rep from the World Wildlife Fund and they are on working together to accomplish this goal.

Within the government the Defense Department, including the Navy and the Coast Guard support ratification.  The State Department, Commerce, Interior, National Security Council, and even President Bush

For those of us who believe the U.S. must be a leader when it comes to international law, this convention is vitally important.  If the Senate will not accede to this convention, how can we expect them to support the ratification of the backlog of multilateral treaties waiting for a vote?  Think about it. If a Senate with a Democratic majority can not muster the 66 votes to pass a treaty supported by a Republican president, what is the possibility of doing so under a potential Democratic president who will face much stiffer Republican opposition?

If the U.S, cannot join an agreement supported by such a broad cross-section of American society  – what is the chance that we engage on other agreements?  I believe you will find that this very same question motivates the convention’s opponents as well as its supporters.  I look forward to the conversation.  Thank you