May 16, 2012

Law of the Sea: Less boring than you think

Washington is gearing up for another fight over the Law of
the Sea Convention (LOSC) as the U.S. Senate Foreign Relations Committee
prepares to hold hearings in the coming weeks. But while the thirty year LOSC
debate may start to sound like a broken record to some, the stakes of not
ratifying the convention are the highest they have ever been for the United

Although the United States has safeguarded its interests at
sea by relying on customary international law, this approach is becoming
increasingly risky. Critics of LOSC routinely argue that the convention's most
important provisions -- including maritime navigational rights -- are already
accepted international norms, recognized by other countries as the rules of the
road at sea. However, critics fail to appreciate that customary international
law can change, as it appears to be doing today.

Rising maritime powers across the globe are reinterpreting
customary international law to promote their own national interests --
including in ways that may conflict with longstanding maritime norms and
American interests. Nowhere is this more apparent than in the South China Sea,
where China's outsized claim to the entire region flies in the face of both
traditional practices and LOSC. But China is not the only offender. Burma,
Thailand, and others are joining China in more restrictive interpretations of
maritime navigational rights, including anti-access norms that could constrain
the U.S. Navy's ease of access in this crucial maritime domain.

Unfortunately, the United States is not in a position to
rebuff these restrictive interpretations and protect the maritime norms that
have been so beneficial to the global economy and U.S. security. U.S. failure
to ratify the treaty has prevented the United States from taking a seat at the
table to avail itself of the convention's established legal frameworks, such as
the Law of the Sea Tribunal. And while the United States sits on the sidelines,
other countries are engaging in discussions of maritime law, and in some places
working toward consensus on issues that could have consequences for the United
States for decades. Joining the treaty will allow the United States to lead
these important discussions and, more importantly, enable the United States to
negotiate with countries from a position of strength to protect the customary
practices codified by the convention.

Ratifying LOSC will also strengthen a range of ongoing U.S.
security activities. The U.S. Navy and U.S. Coast Guard are our key instruments
of power at sea and ratifying LOSC will strengthen their ability to do their
job and work with others to protect U.S. interests, including areas such as
counter proliferation and counter piracy. More importantly, ratifying the
convention would give the U.S. Navy and Coast Guard the strongest legal footing
for their actions, including in places like the Strait of Hormuz, where Iran has
threatened to close access to the international passageway in direct violation
of the convention. As Chairman of the Joint Chiefs of Staff General Martin
Dempsey recently said, "It validates the operations we conduct today and realizes our
vision for a secure future

For some, the most pressing reason to ratify LOSC is to
acquire legal jurisdiction to the estimated trillion dollars of energy and mineral resources on
the extended continental shelf, an area beyond the recognized 200-nautical mile
Exclusive Economic Zone (EEZ). Ratifying the treaty will allow the United States
to submit a claim to the U.N. Commission on the Limits of the Continental
Shelf, expanding U.S. sovereignty to critical energy and mineral resources on
the extended continental shelf. "Not
since we acquired the lands of the American west and Alaska have we had such an
opportunity to expand U.S. sovereignty
," Secretary of Defense Leon
Panetta recently said. 

To date, many U.S. companies have been reluctant to operate
beyond the U.S. EEZ due to the lack of U.S or international legal protections
that significantly raise the risks for companies operating beyond any national
jurisdiction. Securing sovereign rights to the extended continental shelf will
provide U.S. businesses the recognized title and protection to resources there,
expanding domestic production of oil and natural gas, strengthening our assured
access to energy resources. What is more, U.S. businesses would be able to lay
claim to mineral resources, including rare earth metals that are critical to
defense technologies, helping to reduce risky U.S. reliance on Chinese rare
earths by bolstering U.S. domestic production.

Ratifying LOSC will not address every challenge the United
States will confront at sea, but it will substantially improve America's
ability to protect its global interests by providing a stronger legal
foundation for its own maritime activities and helping to shape and enforce
international norms and legal authorities. Most importantly, it will restore
U.S leadership at sea. The United States has always been a maritime power.
Given the growing importance of the maritime domain to U.S. interests and the
rapidly changing global security environment, the United States needs every
tool at its disposal to ensure that America will remain a strong global leader
at sea.

The U.S. Senate should ratify the Law of the Sea Convention