BY LINDA BENTLEY | JULY 18, 2012

Law of the Sea Treaty dead in the water

‘This agreement is striking in both the breadth of activities it regulates and the ambiguity of obligations it creates

WASHINGTON – On Monday, July 16, Sens. Rob Portman, R-Ohio, and Kelly Ayotte, R-N.H., as ranking members of the Committee on Armed Services Subcommittee on Emerging Threats and Capabilities and Subcommittee on Readiness and Management Support, respectively, sent a letter to Majority Leader Sen. Harry Reid, D-Nev., expressing opposition to the United Nations Convention on the Law of the Sea Treaty (UNCLOS), occasionally referred to as LOST, a treaty completed in 1982 and modified in 1992.

President Obama indicated he was prepared to sign the treaty.

However, with 34 members of the Senate opposed to the treaty on Monday, it did not have the required two-thirds vote for ratification.

In their letter, Portman and Ayotte wrote, “After careful consideration, we have concluded that on balance this treaty is not in the national interest of the United States. As a result, we would oppose this treaty if it were called up for a vote.”

They pointed out proponents of UNCLOS “aspire to admirable goals, including codifying the U.S. Navy’s navigational rights and defining American economic interests in valuable offshore resources.”

However, they said the treaty’s terms reach beyond those good intentions, and said, “This agreement is striking in both the breadth of activities it regulates and the ambiguity of obligations it creates. Its 320 articles and over 200 pages establish a complex regulatory regime that applies to virtually any commercial or governmental activity related to the oceans – from seaborne shipping, to drug and weapon interdiction, to operating a manufacturing plant near a coastal waterway.”

They also said the terms were not only expansive but often ill-defined, quoting from various articles of the treaty, including Article 293, which “empowers tribunals to enforce not only the treaty provisions but also ‘other rules of international law not incompatible with [the treaty],’” and pointed out it would bind the United States to yet-unknown requirements and liabilities, an uncertainty they called “reason for caution” on its own.

The letter to Reid went on to say, “The treaty's breadth and ambiguity might be less troubling if there were adequate assurance that it will be enforced impartially and in a manner consistent with U.S. interests. But that is not so. The United States could block some but not all actions of the International Seabed Authority, a legislative body vested with significant power over more than half of the earth's surface. Further, the treaty's judicial bodies are empowered to issue binding judgments even over U.S. objections. In some cases, the United States could elect to resolve disputes before a five-member arbitration tribunal, in which we would choose two arbitrators.”

However, the United States would have no hand in selecting the decisive, fifth arbitrator, unless it agreed with the opposing party. Other cases would be decided by the International Tribunal, a body even less accountable to the United States, comprised of 21 foreign judges with no guarantee of U.S. representation.

Portman and Ayotte expressed concerns over the method of executing tribunal judgments, which they said were unlike many international agreements, whereas key provisions of UNCLOS were drafted to be “self-executing,” meaning certain tribunal judgments would automatically constitute enforceable federal law without congressional legislation or meaningful review by our nation’s judiciary.

“In other words,” they wrote, “the treaty equates tribunal decisions with decisions of the U.S. Supreme Court. This means that private litigants will likely be able to invoke tribunal judgments as enforceable in U.S. courts – against the government and possibly against U.S. businesses. The United States will have no lawful choice but to acquiesce to tribunal judgments, however burdensome or unfair.”

They wrote, “In short, we are deeply concerned about the treaty's breadth and ambiguity, the inadequate U.S. input in the treaty's adjudicative bodies, and the automatic enforcement of tribunal judgments in the United States. Against these risks to U.S. sovereignty, however, we have also carefully weighed the potential benefits of the treaty.”

Portman and Ayotte, as members of the Armed Services Committee, said they were mindful, and took seriously, the Defense Department’s belief that the treaty would help secure the navigational freedom of our fleet and provide an additional tool to our diplomatic and military leaders in resolving maritime disputes, as well as codify rights to resources in the U.S. exclusive economic zone, the extended continental shelf, and the deep seabed.
They said they believed the United States’ maritime interests are “best secured by maintaining U.S. naval power beyond challenge.”

At issue isn’t whether the United States will defend its maritime rights, they said, “but rather who will have final say on the scope of those rights.”

They stated, “We simply are not persuaded that decisions by the International Seabed Authority and international tribunals empowered by this treaty will be more favorable to U.S. interests than bilateral negotiations, voluntary arbitration and other means of resolving maritime issues. No international organization owns the seas, and we are confident that our nation will continue to protect its navigational freedom, valid territorial claims, and other maritime rights.”

They concluded with, “On balance, we bclieve the treaty's litigation exposure and impositions on U.S. sovereignty outweigh its potential benefits. For that reason, we cannot support the Law of the Sea treaty and would oppose its ratification.

Without a two-thirds vote to ratify UNCLOS, it is now dead in the water for this year.