Critics: U.S. missing the boat in failing to endorse Law of the Sea

Jan 24, 2014 10:26 AM

Thousands of meters below the ocean’s surface lie nodules and hydrothermal vents — essentially underwater volcanoes — rich in precious metals, such as silver, gold, manganese, copper, cobalt and zinc. As new technologies have made exploration and extraction of these metals feasible, companies from various countries have been queuing up for access to the spoils. To date, the International Seabed Authority, which was established by the United Nations Convention on the Law of the Sea (UNCLOS) has issued almost 20 licenses for prospecting of these mineral deposits and is considering several more. Mining could begin as soon as 2016.

When UNCLOS went into effect in 1994, it essentially codified maritime law, covering issues such as safety at sea and pollution. To date, more than 160 countries have ratified the treaty. Despite playing a central role in its creation, the United States has not followed suit. Oddly, the treaty enjoys broad bipartisan support with both Republican and Democratic presidential administrations pushing for its ratification in the Senate, which is all that is needed for the U.S. to take its seat at the table. Yet some conservative senators have said the treaty will threaten U.S. sovereignty on the high seas and have repeatedly blocked the measure.

The ramifications of this opt-out are far-reaching. Angling its way into the deep-sea “gold” rush, said Larry Mayer, director of the Center for Coastal and Ocean Mapping at the University of New Hampshire, would require the U.S. to break the law.

In a document titled “Why the United States Needs to Join the Law of the Sea Convention Now,” Lockheed Martin Corp. wrote: “Timing is critically important if U.S. industry is to undertake exploitation of the deep seabed for valuable rare earth and other mineral resources. Other countries are already moving quickly and aggressively to secure internationally recognized rights to these resources. ... U.S. companies cannot use this country’s technological leadership to pursue, with the sponsorship of the United States government, a leadership position in this strategically important emerging market.”

Besides limiting deep-sea mining, failure to ratify the treaty could stymie America’s ability to drill for oil in the Arctic. There, receding ice caps are providing access to oil-rich seabeds, which are thought to hold up to a quarter of the world’s undiscovered reserves. UNCLOS establishes that a country has full jurisdiction over resources within 200 nm of its seashore, an area referred to as the exclusive economic zone (EEZ). Countries can petition to extend their reach by showing that their continental shelf extends beyond the EEZ. By joining the treaty, the U.S. could extend its EEZ off the coast of Alaska by 400 nm. Russia has already submitted a claim for half of the Arctic, and Canada intends to put forth a large claim that could encroach upon the U.S.’s EEZ.

“We believe that it is now time for action on the Law of the Sea (Convention). The U.S. can no longer afford to wait to secure access to the vital resources that lie within” its extended continental shelf, Jack N. Gerard, president and chief executive of the American Petroleum Institute, wrote in a letter to Sen. Lisa Murkowski, then the Republican senator from Alaska, in 2011.

Until recently, seafarers followed a general set of ethical guidelines on the open ocean, said Caitlyn Antrim, executive director of the Rule of Law Committee for the Oceans in Washington, D.C. It was generally accepted, she said, that ships could sail anywhere without interference from neighboring countries. That system worked well for hundreds of years, but President Harry Truman muddied the waters in 1945 when he laid claim to America’s entire continental shelf for oil and gas exploration. Hundreds of other countries soon followed suit, both to gobble up underwater oil reserves and to protect their fisheries. The first Law of the Sea conference was held in 1958, but delegates couldn’t figure out how to best carve up the ocean, so they let the question hang. By the mid-1960s, a more comprehensive solution was clearly needed.

After almost a decade of negotiations lasting from 1973 to 1982, delegates drafted a comprehensive document laying out how member countries should use the world’s oceans and established the framework for the EEZ. Article 87 codified key freedoms on the high seas, including a country’s right to navigate and fly over the world’s oceans, lay cables and pipelines, fish and conduct scientific research. Articles 192 through 237 spelled out extensive rules on pollution prevention and protection of the marine environment. UNCLOS established an international tribunal to moderate disputes between countries.

“UNCLOS was simply intended to be the suitcase, if you will, that you could put a lot of (maritime) topics in,” said Clay Maitland, chairman of the North American Marine Environment Protection Association and former delegate to the Law of the Sea Convention.

When UNCLOS first came up for Senate ratification in the early 1980s, President Ronald Reagan laid out six areas of concern. He was particularly worried that the treaty did not adequately protect U.S. mining interests in the deep sea.

As it stood, any country could hire a company to scope out areas in the high seas thought to be rich in precious metals. That meant that one country could pay for all the prospecting only to have another country come in and start mining right next to them. By the 1990s, policymakers had addressed all of Reagan’s concerns. Notably, the U.S. was guaranteed a permanent seat — with veto power — on the International Seabed Authority, the agency responsible for governing actions, including mineral extraction, in the deep sea.

By then, after garnering the necessary 60 votes, the treaty was already in effect globally. But the Senate has never been able to muster the 67 votes (two-thirds majority) necessary for ratification. In 2007, Antrim and others went to scores of senators’ offices pushing the case for ratification. Backers of ratification included industry reps from mining and oil and gas companies, various environmental groups, and the U.S. Coast Guard. But conservative senators blocked the vote. Right-to-life groups partnered with the anti-internationalist groups, Antrim said, and proponents faced a “broad coalition of ‘no.’”

UNCLOS came up for consideration again in 2012. That year, in a letter to the Senate Foreign Relations Committee, Coast Guard Commandant Adm. Robert Papp Jr. said that ratifying UNCLOS would help sustain America’s leadership as a maritime first responder, protect American prosperity and ensure America’s Arctic future.

“For decades, we have largely acted in accordance with a treaty that we have no ability to shape and without the additional benefits that come from being a party,” Papp wrote. “We need to lock in the favorable navigational rights that our military and shipping interests depend on. We need to be a party as the best way to secure international recognition of our sovereign rights over our extended continental shelf. We need to be a party to influence and lead the further development of the international rules governing the oceans.”

Without the U.S. at the table, said Mayer, companies will remain unwilling to explore and extract on our behalf. “The reason why all the industry wants this — why all the oil companies want this — is because of certainty. They hate uncertainty. They’re not going to invest a billion dollars in an oil rig if they’re not certain who has the rights to it.”

That shared distaste for uncertainty has created strange bedfellows. Besides oil and gas and mining companies, several environmental agencies, including Oceana, World Wildlife Fund and Ocean Conservancy, are pushing for ratification. Clear guidelines ensure that all countries are following established environmental protocols, Mayer said. “I’ve never in my life sat on a panel that will have Greenpeace, the military and the oil companies all agreeing,” he said.

With the U.S. forfeiting its role as a leader in international maritime issues, UNCLOS has started to show its age. Most of its provisions were set forth in the 1970s, Maitland said. They did not cover issues related to piracy or environmental advocacy on the high seas. In a recent high profile case, Russia, which is party to UNCLOS, seized a Greenpeace ship carrying two journalists and 28 individuals protesting the development of the country’s first offshore oil platform in the Arctic. Russia has refused to participate in a case being heard at the International Tribunal for the Law of the Sea. “What do we do with all these situations that are cropping up now, and the Greenpeace situation is one of them … that are not covered in UNCLOS at all?” Maitland asked. “Congress shows little to no interest in any international maritime matters.”

Treaties automatically come up for reconsideration every two years. The Senate may vote on UNCLOS during the lame-duck session in 2014 or in 2015. However, unless Senate opponents of the treaty fail to get re-elected, ratification remains unlikely.

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