New Senate Unlikely to Favor Law of the Sea Treaty

Patrick Goodenough | November 8, 2012 | 5:03am EST
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The U.N. Convention on the Law of the Sea has been awaiting U.S. Senate ratification since 1982. (Photo: Hansueli Krapf/Wikimedia Commons)

( – Despite Republican setbacks in a number of U.S. Senate races in Tuesday’s election, the next Democrat-dominated Senate looks even less likely than the current one to ratify the U.N. Convention on the Law of the Sea.

Viewed by conservatives as an assault on national sovereignty -- but supported by military and business interests -- the treaty has been awaiting Senate ratification since 1982, and has been pushed strongly this year.

In the 113th Congress, Democrats will hold 53 seats to the Republicans’ 45, an increase of two over the current 51-47 breakdown. (The remaining two Senate seats in both the current and next legislatures are held by independents tending to – and in the case of newcomer Angus King of Maine, expected to – caucus with Democrats.)

Despite the two-seat pickup for Democrats, ratifying the treaty – a step requiring 67 votes – still promises to be an uphill battle.

Over the summer, opponents led by Sen. Jim DeMint (R-S.C.) presented Senate Majority Leader Harry Reid with a list of 34 Republicans ready to vote against ratification, enough to defeat the measure.

Foreign Relations Committee chairman Sen. John Kerry (Mass.), who presided over three hearings on the Law of the Sea Treaty, expressed frustration over GOP opposition – citing backing for the treaty from generals and Republican former secretaries of state, among others – but chose not to request a vote on the issue before the election. Kerry’s office acknowledged but did not respond to queries Wednesday.

Unless opponents are persuaded to change their stance, the upcoming changes in the Senate do not augur well for ratification next year of the treaty, whose official acronym is UNCLOS, although many opponents prefer LOST.

The only GOP opponent of the treaty who is leaving is Sen. Jon Kyl (Ariz.), but as his successor, Rep. Jeff Flake, was a staunch UNCLOS opponent in the U.S. House – where he led an effort to urge senators not to ratify – Kyl’s departure does not change the calculation.

As of the summer, 13 Republican senators supported the treaty. Four of them are leaving the Senate – Sens. Richard Lugar (Ind.), Scott Brown (Mass.), Olympia Snowe (Me.), and Kay Bailey Hutchison (Texas).

Three of their replacements – Joe Donnelly (D) in Indiana, Elizabeth Warren (D) in Massachusetts and independent King in Maine – will likely support ratification.

But the fourth, Ted Cruz (R) of Texas, is a Tea Party-backed conservative and will not. A spokesman Wednesday pointed to an article last June in which Cruz called the treaty “ill-conceived, unworkable, and naïve” and said it “must not be ratified.”

A second net gain for UNCLOS opponents will likely come from newcomer Deb Fischer (Nebr.), who succeeds retiring Democrat Sen. Ben Nelson. Attempts to get comment from her office were unsuccessful Wednesday, but the Tea Party-backed Fischer touts a conservative voting record in the Nebraska state senate.

If Cruz and Fischer do both join the anti-treaty group, and no current members change their position, the list grows to 36. (For the full earlier list, see here.)

The remaining nine GOP senators supportive of UNCLOS, and who will be in the next Senate, are Sens. Lamar Alexander (Tenn.), Thad Cochran (Miss.), Susan Collins (Me.), Bob Corker (Tenn.), Mike Enzi (Wyo.), Lindsey Graham (S.C.), Mark Kirk (Ill.), John McCain (Ariz.) and Lisa Murkowski (Ala.).

Deep divisions

The Law of the Sea Treaty has been signed and ratified by 162 countries, and it entered into force in 1994.

Critics say it would impact on U.S. businesses by requiring them to pay royalties to exploit marine resources, subject American sovereignty to an international body – the treaty creates an International Seabed Authority with its own dispute-resolution tribunal – and introduce cumbersome environmental regulations.

They say the U.S. rights of navigation have not suffered from non-ratification of the treaty, and that accession would not help settle current maritime and right-of-navigation disputes such as those in the South China Sea and East China Sea.

American Enterprise Institute scholars John Bolton (former U.S. ambassador to the U.N.) and Dan Blumenthal (member of the U.S.-China Economic and Security Review Commission) argued in an op-ed last year that ratification “would encourage Sino-American strife, constrain U.S. naval activities, and do nothing to resolve China’s expansive maritime territorial claims.”

Proponents say ratifying UNCLOS would enable the U.S. to protect its rights to exploit marine resources without interference from other nations.

“The treaty provides certainty in accessing resources in the Arctic and Antarctic and could ultimately enable American businesses to explore the vast natural resources contained in the seabeds in those areas,” the U.S. Chamber of Commerce said in a document outlining its policy priorities for 2012.

Secretary of State Hillary Clinton, Defense Secretary Leon Panetta and chairman of the Joint Chiefs of Staff Army Gen. Martin Dempsey all spoke in favor of ratification during one of Kerry’s committee hearings on the matter.

In its 2012 platform, the Republican Party said “we have deep reservations about the regulatory, legal, and tax regimes inherent in the Law of the Sea Treaty and congratulate Senate Republicans for blocking its ratification.”

Women, children, nukes

Other treaties signed by presidents but never ratified include the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), signed by President Carter in 1980; the Convention on the Rights of the Child (CRC), signed by President Clinton in 1995; and the Comprehensive Nuclear Test Ban Treaty (CTBT), signed by Clinton in 1996.

CEDAW and CRC critics have argued that the two treaties would infringe on domestic policymaking on family issues and would hamper efforts by the U.S. government to protect individual rights.

The GOP’s 2012 platform called on the Senate to “reject agreements whose long-range impact on the American family is ominous or unclear,” including CEDAW and CRC.

Opponents of CBTB ratification have argued the U.S. would not be able to maintain its nuclear arsenal and superiority without testing, and also cited difficulties in verifying compliance. Proponents counter by citing technical advances and increasingly effective verification measures regime, and say the treaty is necessary to prevent testing by rogue states.

The U.S. has upheld a moratorium on testing since the early 1990s, but a Senate vote 1999 was defeated 51-48.

After taking office President Obama said he would make U.S. ratification a priority, but there has been no progress.

Unlike UNCLOS, CEDAW and CRC, America’s decision not to ratify the CTBT is holding up its entry into force, which can only occur when 44 specific countries have ratified it. The eight yet to do so are the United States, China, Egypt, India, Iran, Israel, North Korea and Pakistan.

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