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Melissa Bert and Mark Schlakman

Ratifying the Law of the Sea

By Melissa Bert and Mark Schlakman
March 16, 2009
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AMERICA has been drawn into a 24/7 debate over how to rescue first the United States, and then the world, from drowning in an economic abyss. As a result, many probably missed a relatively obscure yet significant development. Google Earth 5.0 unveiled the newest state of the art - the ocean floor is now mapped on the Internet. This advance underscores the crucial role the sea plays in our lives. It is where our environment is shaped, 90 percent of our commerce is shipped, and the source of much food and energy.

As President Obama grapples with economic recovery, he also has a chance to promote global security and stability by advocating for ratification of the UN Convention on the Law of the Sea.

The treaty codifies widely accepted principles of freedom of navigation and overflight, and establishes rules for use of the world's oceans. It is a powerful vehicle through which signatories can leverage support for national priorities within the international community. Its provisions address national security and economic interests, provide guidelines for commercial activity, and set standards to protect the marine environment.

The United States has 12,500 miles of coastline and 360 major commercial ports. Among the world's largest importers and exporters of goods and services, it has more to gain by ratifying the convention than by avoiding it, especially against the backdrop of global recession.

In the absence of such a legal framework, history is replete with examples of rogue nations unduly restricting maritime access and encroaching upon others' interests, potentially compromising military operations, disrupting commerce, and flouting accountability for environmental degradation.

So far, 156 countries and the European Community have ratified the treaty. Some critics assert that there is no compelling reason for the United States to ratify the treaty because it already adheres to its provisions under customary international law. But this approach is fraught with peril. Customary international law is constantly evolving and does not offer the stability and predictability afforded by the convention.

Many diplomats and national security experts maintain that US ratification will strengthen US and transnational initiatives to deter nuclear proliferation. Moreover, the United States would have standing in deliberations that will shape future development of the law of the sea.

Another provision of the treaty pertains to the Arctic, a region undergoing rapid environmental change and extensive exploration for natural resources. The treaty affords the five Arctic states - Norway, Denmark, Russia, Canada, and the United States - the right to claim the Arctic seabed, including mineral and oil extraction rights. By ratifying, the US would have a seat on the Council of the International Seabed Authority, which regulates deep-sea mining.

The United States played a pivotal role during treaty negotiations in the early 1980s, but President Reagan ultimately refused to sign the convention over concerns about a provision involving deep-seabed mining that he felt diluted US voting power. That provision was subsequently modified to eliminate such concerns in 1994.

Support for ratification is bipartisan. Proponents include both former presidents Bush and Clinton; former secretaries of state Condoleezza Rice, Colin Powell, and Madeleine Albright; Secretary of State Hillary Clinton; Admiral Mike Mullen, chairman of the Joint Chiefs of Staff; Admiral Thad Allen, commandant of the Coast Guard; major environmental groups and many others.

But a relatively small number of senators have held the treaty hostage. Buoyed by the outdated arguments of the Reagan era and ideological opposition to the UN, opponents have stopped it from coming to a vote. This gamesmanship may result in the United States faltering in the scramble for the Arctic.

Now is the time for the United States to join the overwhelming majority of nations that have ratified the treaty and distance itself from other notable outliers like Iran, North Korea, and Syria. Ratification will advance US national interests and send a clear message that America supports multilateral cooperation, the rule of law, and due process.

Melissa Bert is a national security fellow at the Harvard Kennedy School and a captain in the US Coast Guard. Mark Schlakman is a senior program director at Florida State University's Center for the Advancement of Human Rights.

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