Monday, July 16, 2012

Two Senators Torpedo Law of the Sea Treaty

Republican Senators Bob Portman (R-Ohio) and Kelly Ayotte (R-NH) torpedoed any chances of the Law of the Sea Treaty being ratified this year by sending a rambling and somewhat incoherent letter to Senate Majority Leader Harry Reid.

The Treaty is criticized for being long, cited as being 320 articles and 200 pages long.  The treaty's principles and articles are intended to cover all economic uses of the oceans beyond national jurisdiction: a pretty tall order. The Dodd-Frank bill was over 3,200 pages long, and it didn't even contain the actual rules and regulations, whereas the LOS Treaty describes the regulatory framework of the International Seabed Authority.  By comparison then, the Law of the Sea Treaty is like a Cliff's Notes for the oceans! 

The Senators want assurances that the treaty will be "enforced impartially and in a manner consistent with U.S. interests."  This is an example of incoherence.. The requirement that all disputes be resolved in a manner consistent with U.S. interests wouldn't be acceptable even if the treaty were signed only by the U.S. and the six biggest naval powers in the world.  Provisions of the dispute resolution process have been negotiated by multiple Administrations over decades. Like any treaty, they represent trade-offs our representatives felt acceptable because we gained what we wanted in other areas, such as international shipping and access to deep ocean resources for U.S. companies.

The authors make a big deal out of this Article: "Article 207 decrees that “[s]tates shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment from land-based sources … taking into account internationally agreed rules.”

Realistically, I'm not sure that there are any internationally agreed rules governing ocean pollution from land based sources, so Article 207 could be disputed longer than patent claims between Microsoft and Apple. Also, the U.S. is active in UNEP and GESAMP (Group of Experts on the Scientific Aspects of Marine Pollution).  Both these bodies would have something to say in the actual implementation of Article 207, if and when it came to that point. A fear about this article is not reasonable in the prevailing institutional practice.

To take the other side of this argument,decades long overfishing of deep ocean stocks by former Taiwanese and Korean industrial trawlers and the subsequent pollution  from processing-at-sea was something that all nations, including the U.S, wanted stopped.  Without enforceable treaties, this economic abuse couldn't be addressed at all.

The two Senators make an unfounded claim that usual and customary practice in international law and bilateral negotiations are sufficient to maintain peace and defend our national interests.  The evolution of usual and customary practice relating to the 200 mile limit was made possible by the same multinational, consultative approach with they now decry. In fact, I believe that Chile and Peru were first to claim sovereignty over that limit, and U.S. declarations followed theirs as international law evolved.   What happens when Exclusive Economic Zones overlap?  If resolutions are always bilateral, what if the dispute, let's say, is between a nation like China and a nation like Vietnam?  Isn't it worthwhile to have an internationally accepted framework which governs the delineation of zones and disputes? 

We are headed to more and more of these situations. as pictured below:

Xinhua News Agency (China)

The picture, released to the Associated Press, shows a Japanese coast guard vessel (left) encountering a Chinese patrol boat near disputed islands in the East China Sea.  

I'm not saying by any means that having a treaty in place would create an oceanic Eden.  The current patchwork quilt of customary practice, bilateral treaties, military pacts, and aggressive assertions by Russia and China is inherently unstable. Our military leaders recognize this. 

In fact, as the Journal writes,
"One of the enduring mysteries of the treaty is how it has failed to even come up for a ratification vote given the breadth of support it enjoys from widely disparate groups. Former secretaries of State, both Republicans and Democrats, top civilian and uniformed Pentagon officials, the U.S. Chamber of Commerce, environmentalists, and former presidents George W. Bush and Bill Clinton have all been vocal supporters"
It's always better to throw some papers around in an international court disputing a boundary than it is to be firing rounds from a naval vessel in a far off sea.

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