Navigating 21st- Century Waters

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Navigating 21st- Century Waters

Tomorrow, the Senate Foreign Relations Committee takes up the national security and strategic imperatives for the Law of the Sea Treaty. The treaty, which has been in place for 30 years and has been signed by 160 countries, codifies widely accepted principles on territorial waters, shipping lanes and ocean resources. The growing U.S. focus on Asia, Iranian efforts to constrain the free flow of oil and the emergence of new strategic imperatives in the Arctic make the treaty’s rules of the road and dispute resolution mechanisms – negotiated with the U.S. military and industry at the table – more important than ever. The treaty debate ought to be a welcome sight in divided Washington, as it brings together the most unlikely of allies: oil companies, environmentalists, the military, the Chamber of Commerce, peace groups and both the George W. Bush and Barack Obama administrations – all of whom support ratification.  However, the treaty has been held hostage over the years to a few ideologically extreme senators who view any international agreement as an encroachment on U.S. rights. As the country grows increasingly frustrated with congressional inaction and partisan politics, ratification of this important treaty offers an opportunity for a bipartisan success that benefits American national security.

Ratification of the Law of the Sea Treaty would promote core American national security goals:

Freedom of military operations. America’s top military officer, General Martin Dempsey, Chairman of the Joint Chiefs of Staff, supports ratification because, “It codifies navigational rights and freedoms essential for our global mobility.  It helps sustain our combat forces in the field.  It includes the right of innocent passage through foreign territorial seas, the right of transit passage through international straits and the right to exercise high-seas freedoms in foreign exclusive economic zones, all without permission or prior notice.” Admiral Robert Papp, Jr., Commandant, U.S. Coast Guard, adds, “Joining the [Law of the Sea] Convention will lock in vital navigation rights that ensure the mobility of Coast Guard cutters, Navy warships and other U.S. vessels and aircraft, and will protect America’s sovereign rights over offshore resources that the Coast Guard is charged with protecting on behalf of the American people.” Secretary of Defense Leon E. Panetta recently summed up the Pentagon view, “this treaty is absolutely critical to U.S. national security … the longer we delay, the more we undermine our own national security interest.” [Pew Charitable Trusts and Atlantic Council, 5/9/12]

U.S. interests in the South China Sea. Heather Conley, senior fellow at the Center for Strategic and International Studies, explains how the treaty would affect American interests in the South China Sea, “China’s outsized claim to the entire South China Sea region flies in the face of both customary international law and the Law of the Sea Treaty. Moreover, China, Thailand and other countries are reinterpreting customary international law, even the laws enshrined in the Law of the Sea Convention, in ways that run counter to long-standing interpretation and, more importantly for our purposes, to American national interests. Ratifying this treaty will help the United States counter efforts by rising powers seeking to reshape the rules that have been so beneficial to the global economy and to U.S. national security, and will strengthen those provisions in the Law of the Sea that codify customary international law and continue to protect U.S. interests.” And Secretary Panetta warned that by not ratifying, “We potentially undercut our credibility in a number of Asia-focused multilateral venues, just as we’re pushing for a rules-based order in the region and the peaceful resolution of maritime and territorial disputes. We’re doing that in the South China Sea and elsewhere. How can we argue – how can we argue that other nations must abide by international rules when we haven’t officially accepted those rules ourselves?” [Pew Charitable Trusts and Atlantic Council, 5/9/12]

Dealing with Iran’s threats to the flow of oil. The Center for a New American Security summarizes how Iran tries to use the U.S.’s failure to ratify against us in international fora: “Ratification will also help the United States deflate Iran’s recent challenges to U.S. freedom of navigation through the Strait of Hormuz. Historically, Iran has stated that the right to freedom of navigation does not extend to non-signatories of the convention and has passed domestic legislation that is inconsistent with international law, specifically by requiring warships to seek approval from Iran before exercising innocent passage through the strait. Ratifying LOSC [Law of the Sea Convention] would nullify Iran’s challenges should it ever choose to close the strait to U.S. or other flagged ships. Moreover, ratifying LOSC will provide the U.S. Navy the strongest legal footing for countering an Iranian anti-access campaign in the Persian Gulf.” [CNAS, 4/12]

The Arctic. The Council on Foreign Relations notes that as a result the rapid retreat of Arctic sea ice, “the relatively pristine Arctic Ocean is becoming open to fishing, international shipping, and the development of an estimated 22 percent of the world’s remaining undiscovered but technically recoverable hydrocarbon reserves.” CNAS sums up how the open Arctic is a strategic concern for the U.S. – and how the Law of the Sea Convention helps secure our interests: “Seabed mining, in the Arctic and elsewhere, is also becoming an important strategic interest for the United States. U.S. companies increasingly seek to engage in seabed mining for minerals such as rare earth elements and cobalt that are critical to the broad U.S. economy and used in producing defense assets. However, as long as the United States remains outside the international legal protections afforded by LOSC, the private sector remains hesitant to invest in seabed mining – investments that would reduce U.S. vulnerabilities to external pressure and supply disruption.” [CFR, 5/09. CNAS, 4/12]

21st century challenges. The CNAS report adds, “U.S. naval and Coast Guard forces benefit from the fact that most countries in the world operate according to international norms enshrined in LOSC. These norms include freedom of navigation on the high seas for vessels and aircraft of all countries, as well as their innocent passage in territorial waters and straits used for international transit. Such norms benefit a range of U.S. operations, including joint counter-piracy activities, humanitarian assistance and disaster relief missions with international partners and power projection.” [CNAS, 4/12]

Treaty has strong bipartisan support; obstruction comes from minority with anti-treaty ideology. Support for the treaty is led by eminent statesmen such as former Senator John Warner (R-VA);  business leaders including the U.S. Chamber of Commerce; and interests groups including peace and environmental activists. Thad Allen, former commandant of the Coast Guard, Richard Armitage, deputy secretary of state from 2001 to 2005, and John Hamre, president of the Center for Strategic and International Studies and former deputy secretary of defense, spell out a bipartisan rationale in a New York Times op-ed:  “Perhaps most important of all, ratification would prove to be a diplomatic triumph. American power is defined not simply by economic and military might, but by ideals, leadership, strategic vision and international credibility.”

Mark Leon Goldberg of UN Dispatch explains, “The military supports the treaty because it offers clarity on sea-lanes; the extractive industry supports it because it provides a mechanism to make legal claims to minerals below seabeds; environmental groups like it because it provides guidelines to extracting those minerals in an ecologially sensitive way; peace groups support it because it is one part of the liberal internationalist project. Even George W. Bush, who no one would confuse as a liberal internationalist, supported it. Outside a few blocks of Washington, DC UNCLOS is totally uncontroversial. But inside the US Capitol building, the treaty has languished. Ratifying a treaty requires a two thirds vote of the US Senate, so if everyone is present that requires 67 votes in favor. There is a not-insignificant minority of US Senators who have ideological hangups with the very idea of international law and treaties.  Under no circumstance would they vote for a treaty or something that can be construed as international law. The size of this minority will determine whether or not the treaty can be ratified.” [Thad Allen, Richard Armitage and John Hamre, 4/24/11. Mark Leon Goldberg, 5/17/12]

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