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Why U.S. Senate should ratify Law of the Sea Treaty—A Commentary by Andrew Burt ’14

The following commentary was posted on TheHill.com on May 25, 2012.

Why U.S. Senate should ratify Law of the Sea Treaty
By Andrew Burt ’14

What do Somali pirates, polar bears and the Chinese government have in common? Aside from reasons to resent the U.N. Convention on the Law of the Sea, not a whole lot.

The treaty, also known as UNCLOS, forms the legal foundation under which Somali pirates are prosecuted, regulates activity in the polar bear’s habitat as it melts, and undercuts the territorial claims behind the Chinese government’s growing assertiveness in the South China Sea. And with the heads of the Defense and State Departments, along with the U.S.’s highest-ranking military officer, lobbying the Senate on Wednesday to take up the treaty, this week marked the beginning of the Obama Administration’s official push to ratify the treaty once and for all.

Over 160 countries have ratified the treaty, which the United States helped to create, but the U.S. still has not – significantly impeding its ability to handle a range of pressing issues. As one senior government official told me, “This is America’s black eye.” And that black eye is only getting worse.

But first, some background: The U.N. Convention on the Law of the Sea was finalized in 1982 after a decade’s worth of work. The treaty sought to define common international norms for use of the seas, hoping to settle longstanding maritime disputes through an international regulatory authority – a main point of contention for the treaty’s critics. Subjecting the U.S. to international laws, they say, would diminish U.S. sovereignty on the high seas.

Fast-forward three decades and you find an Obama Administration with its hands tied behind its back – unlike any administration before it – for two reasons.

The first reason: China.

Over the last few years, the Chinese government has grown more assertive over its territorial claims to the South China Sea, attempting to enforce ownership of long- disputed islands in the region and seeking to keep U.S. Navy ships from surveying those waters. The U.S. government, along with China’s neighbors, has pushed back, conducting naval exercises and publicly strengthening regional ties.

The problem, however, is that the heart of the conflict between China and the U.S. boils down to different interpretations over UNCLOS and the rights the treaty provides. It’s those same officials who, in the course of negotiating with the Chinese, are calling UNCLOS Uncle Sam’s black eye.

As John Norton Moore, a professor at the University of Virginia Law School and the head of the Center for Oceans Law and Policy, told me: “It’s very difficult for the United States to protect its interests when we’re not a party.” There’s only so much officials can say when the Chinese point out that the U.S. is attempting to enforce its interpretations of laws it hasn’t even ratified. As long as the U.S. remains on the list of countries that have yet to pass the treaty – keeping company with such notables as Burundi, Iran and Ethiopia – the Chinese have a point.

The second reason the treaty’s importance is increasing is the Arctic.

Last summer saw the lowest total volume of Arctic ice in recorded history, and the U.S. Navy estimates the region will be ice free one month out of the year by 2040. As the ice melts, the Arctic is changing, opening up new shipping routes and new opportunities to reach vast resources on the seabed. So long as the U.S. has not ratified the treaty, it will not have access to the international body created by UNCLOS to delegate rights in these waters – rights that other Arctic countries are already in the process of shoring up.

The good news is that, as of last week, the administration appears to have taken up the cause. “Accession to this treaty is absolutely essential,” Defense Secretary Leon Panetta told the Senate Foreign Relations Committee on Wednesday. “We believe that it is imperative to act now,” said Hillary Clinton. Martin Dempsey, the Chairman of the Joint Chiefs of Staff, added that the treaty might even help prevent future wars by providing new venues to “stave off conflict with less risk of escalation.”

But doubts over finding the 67 votes needed in the Senate remain. The last time UNCLOS made it to the floor was under the George W. Bush Administration’s backing. Mark Helmke, a spokesman for Senator Dick Lugar (R-Ind.), a key supporter of the treaty, explained that effort to me in a conversation last year: “It’s a classic case where a well-organized minority can stop something that is supported by the broad majority.” Far-right groups used the “internationalist” threat they saw in the treaty for fundraising, and Lugar’s office was berated with phone calls from constituents who sincerely worried “that the law of the sea meant the U.N. could take over every single fishing pond in the state.” UNCLOS died on the Senate floor.

The Obama Administration deserves credit for tackling a long-ignored but pressing issue, especially in an election year. Now it’s the Senate’s turn to take note: the longer it waits to ratify the treaty, the blacker Uncle Sam’s eye will be.

Burt, a former national security reporter, attends Yale Law School.