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Treaty on the seas is in rough Senate waters

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“Everyone is entitled to his opinion, but not to his own facts,” goes the maxim popularized by Sen. Daniel Patrick Moynihan (D-N.Y.).

Sen. John F. Kerry (D-Mass.), chairman of the Senate Foreign Relations Committee, used it last week in introducing the latest effort to get the Senate to pass the Law of the Sea Convention.

The Law of the Sea Convention, in effect since 1994 and ratified by 160 countries, sets international freedom of navigation rules and the guidelines for the use of deep-sea resources, including mining and fishing. The United States has not ratified the treaty, first completed in 1982. Without signing the agreement, then-President Ronald Reagan announced in 1983 the United States would act “in accordance” with the convention’s traditional uses of the oceans except for the deep-sea mining provisions.

The treaty was amended in 1994 during the Clinton administration to meet the Reagan objections. Both the Clinton White House and George W. Bush’s administration in 2004 and ’07, along with a bipartisan group of senators, supported ratification. Nonetheless it failed to come to a vote.

Why? As then-Alaska Gov. Sarah Palin wrote in a Sept. 17, 2007, letter to her state’s Republican senators, “Ratification has been thwarted by a small group of senators who are concerned about the perceived loss of U.S. sovereignty.”

Today, another small group is at it again, forcing Kerry to postpone any Senate vote on ratification until after the November elections. A two-thirds majority is required.

Secretary of State Hillary Rodham Clinton testified Wednesday before the foreign relations panel, along with Defense Secretary Leon Panetta and Joint Chiefs Chairman Gen. Martin Dempsey. She said it was being raised again because of “security and economic urgency.”

Supporting the latter argument, she said, previously U.S. energy companies weren’t technologically prepared to take advantage of the provisions that allow a country to claim economic sovereignty to 600 nautical miles from its coasts. That’s far beyond the current 200 nautical miles.

“U.S. oil and gas companies are now ready, willing and able to explore this area,” she said, but they need “international legal certainty” from the treaty “before they will or could make the substantial investments . . . needed to extract these far offshore resources.”

Clinton described arguments against the treaty as being “based on ideology and mythology, not in facts, evidence or the consequences of continuing failure to accede to the treaty.”

For example, Sen. James M. Inhofe (R-Okla.) raised the prospect that “under this treaty, any country could sue the United States in the International Tribunal Law of the Sea, not in the U.S. courts, or take the U.S. before binding arbitration,” under provisions designed to “reduce and control pollution of the maritime environment.”

Inhofe went on to cite an article by William C.G. Burns which, he said, named the United States as “the most logical state to bring action against.” Burns, however, in his 2006 article, adds that the convention “does not impose an absolute prohibition against pollution” and that it would be difficult to succeed with such legal action.

Sen. Bob Corker (R-Tenn.) raised another concern, repeating an argument that the treaty’s language about abating air pollution would enforce the Kyoto Protocol, which the United States has not ratified. “A lot of people believe . . . the administration wants to use this treaty as a way to get America into a regime relating to carbon, since it’s been unsuccessful doing so domestically,” Corker said.

Clinton responded, “It is our legal assessment that there is nothing in the convention that commits the U.S. to implement any commitments on greenhouse gases under any other regime. . . . It doesn’t require adherence to any specific emission policies.

Sen. James E. Risch (R-Idaho) raised one of the critics’ major arguments: money paid to the International Seabed Authority as royalties for extraction of resources from the deep sea are to be distributed by the authority.

“Why do we as Americans, give up our taxing authority, handing money over to the United Nations to develop some kind of formula that we have no idea what it’s going to?” Risch said.

Clinton noted that it’s not a tax but a royalty arrangement, similar to those that exist on land and sea. The royalty doesn’t start for five years, she added, then rises at 1 percent each year until it caps at 7 percent.

One of the 1994 modifications to the convention gives the United States a permanent seat on the Council of 36 signatories that sets the policies for royalties as well as approves their distribution. Those decisions must be made by consensus, meaning unanimous approval.

“We would have a permanent veto power over how the funds are distributed, and we could prevent them from going anywhere we did not want them to go,” Clinton said.

She later added that consensus is necessary to deal with “any decision that would impose an obligation on the United States” or any country.

Sen. Jim DeMint (R-S.C.) repeated several criticisms then added that the signatories “also help get to define the rules of engagement for the U.S. Navy all over the world.”

Dempsey diplomatically responded, “Where in the treaty do you see our rules of engagement or our activities limited, because they’re not limited in any way.”

One main selling point, emphasized by Clinton, is that “the largest single portion of the U.S. extended continental shelf is in the Arctic,” where Russia, Canada, Norway and Denmark, through its ownership of Greenland, are already establishing their claims.

As Palin wrote in her 2007 letter, “If the U.S. does not ratify the convention, the opportunity to pursue our own claims to offshore areas in the Arctic Ocean might well be lost. As a consequence, our rightful claims to hydrocarbons, minerals, and other natural resources could be ignored.”

Perhaps it’s time for conservative Republicans to listen to Palin on something she knows about firsthand.

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