The Obama adminstration is developing a strategy to finally push through the United Nations Convention on the Law of the Sea (UNCLOS). The treaty has been stalled in the Senate since 1994, when the United States signed the 1994 Agreement on Implementation of UNCLOS. This compromise included a few notable concessions to the United States, such as provisions limiting mandatory technology transfer and granting the U.S. a seat on the Council of the International Seabed Authority.

President Obama is not the first American leader to promote UNCLOS. Former President George W. Bush also wanted to see it ratified. During his second term, in 2007, the Senate Foreign Relations Committee overwhelmingly approved it with a vote of 17-4, but the bill still has not yet come to the floor for a vote. That might come the next Senate session.

Yesterday, the New York Times reported that Margaret Hayes, Director of the State Department’s Office of Oceans and Polar Affairs, announced,

“We have been in touch with the Senate Foreign Relations Committee. There is discussion going on as to the exact timing of when they might have a hearing and when they might proceed to have the full Senate consider accession.”

UNCLOS has a wide support base, ranging from environmentalists to oil companies and from the doves at the Department of State to the hawks at the Department of Defense.  However, a small group of right-wing senators are still opposed to UNCLOS, believing that the U.S. would be robbed of some of its sovereignty were it to adhere to the treaty. But it seems that just the opposite is true. All of the other Arctic 5 are claiming parts of the Arctic Sea, while the U.S. can only sit back and watch from the sidelines. The bigger picture reveals that the U.S. is missing out on defining new international maritime laws altogether while countries like China and NGOs like Greenpeace manipulate and shape new norms, as an article from Foreign Policy in February 2009 discussed.

Writing in favor of UNCLOS in 2007, Senator Lugar, a staunch supporter of the treaty, said:

“…The Convention advances U.S. economic interests by enshrining the right of the United States to explore and exploit the living and non-living resources of the oceans out to 200 miles from our shore, as well as the resources of our continental shelf beyond 200 miles. In addition… the Convention advances U.S. interests in the protection of the environment by addressing pollution of the marine environment from a variety of sources and providing a framework for the conclusion of further agreements to protect and conserve the marine environment. Importantly, the Administration noted that the U.S. law and practice with respect to regulation of activities off our shores is already generally compatible with the Convention. Thus, acceding to the Convention should not require the United States to make any changes in this regard.”

Although the group of senators actively opposed to UNCLOS is rather small, an actual ratification vote could be much closer. Under the aegis of the newly formed GOP “Sovereignty Caucus,” many senators contested the nomination of Harold Koh to his post of Legal Adviser of the Department of State due to his multilateralist leanings. He was confirmed with a vote of 62-35. A vote for UNCLOS – which would need 67 votes to be ratified, since it is a treaty – could be a hairraiser, as David Weigel of the Washington Post suggests.

Senator Jim DeMint, a leader of the anti-UNCLOS groups, said in 2007, “We know from international groups like the U.N. that many signers of these agreements do not act in the best interest of the United States or the world.” Well, it might be difficult for such bodies to do so as long as the United States keeps itself shut out in the cold.


With push from Obama, will US finally ratify UNCLOS?

  1. The congressional hearings on the United Nations Convention on the Law of the Sea (UNCLOS) thus far convened by the US Senate Committee on Foreign Relations/SFRC make a mockery of the US Senate’s constitutional ‘advise and consent’ responsibility and offend Americans’ constitutional ‘right-to-know’ about matters that are likely to adversely affect their constitutional rights and economic lives and to impair US national sovereignty. The purpose of this article is to prompt the United States Congress to hold open, transparent and substantive public hearings to discuss, evaluate and explain to the American people the significant environmental regulatory and judicial enforcement aspects of the UNCLOS before that treaty is submitted to the full Senate for a vote of accession.

    This article was published in Volume 7 of the Santa Clara Journal of International Law.

    A previously authorized and released Working Paper version of this article remains accessible on the Social Science Research Network. The abstract is directly accessible online.

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