Alaska Journal of Commerce: Sea treaty has broad support, but little chance of ratification

The Law of the Sea Treaty has bipartisan support as well the endorsement of the military, energy industry and environmental groups. Still, it has almost no chance of being ratified this year.

On the table in revised form since a 1994 agreement eliminated its most objectionable provisions, ratification of LOST requires 67 votes in the United States Senate and is being pushed hard by Alaska's delegation of Republican Sen. Lisa Murkowski and Democrat Sen. Mark Begich.

Originally put forward by the United Nations in 1982, LOST sets up an international structure governing the use of the high seas for transportation, military and mineral extraction purposes. It allows for the extension of a nation's sovereign rights beyond the current 200-mile limit to include the reach of the continental shelf extending from its shoreline. The United States is a signatory to the treaty and follows most of its provisions, but has not ratified the treaty.

For the U.S., ratifying LOST would allow it to potentially lay claim to an additional area of outer continental shelf as large as California in the Arctic Ocean. As Arctic ice melts, more areas become open to transportation and exploration, with estimates of as much as 22 percent of the world's remaining oil and gas reserves lying beneath the seafloor.

For Begich and Murkowski, the benefits to Alaska of ratifying LOST are clear.

"We benefit from any coastal development," Begich said. "There will be more Coast Guard facilities in Alaska to manage the traffic flow. There would be a huge economic short-term and long-term impact. It's critical that we lay claim to what we have as our right."

Murkowski said her "palms start to sweat" in anticipation of what increased traffic through the Arctic would mean for Alaska, drawing a parallel between the Panama Canal and the transit route created by ice melt that could save shipping companies billions in transport costs.

"It can either be the Panama Canal and open up the world, or it can become like the Straight of Hormuz, where from a national security perspective you are in this tight little window," she said, referring to the chokepoint of the world's oil supply at the mouth of the Persian Gulf. "Are we good with that risk?"

Among those challenges are coordinating search and rescue responsibilities and transit routes among Arctic nations, of which the U.S. is the only country not to ratify LOST.

"It will allow for us as a nation, I believe, to be a better participant not only in the rules of the road when it comes to commerce and environmental issues, but how we deal with an increased level of activity up north," Murkowski said.

Staking claims

In August 2007, Russia symbolically planted its flag more than 13,000 feet under the Arctic ice cap claiming an area that extends more than 1,100 miles from its coast, asserting its rights under LOST that the Lomonosov Ridge extending from Siberia as part of its territory.

Canada and the U.S. both scoffed at the claim's merits, but only Canada can take its dispute to the international arbitration panels set up under the treaty.

LOST opponents largely cite infringements on national sovereignty by ratification that would bind the U.S. to a dispute resolution process and the Senate has a well-established history of resisting treaties that even hint at subjugating the country's interests to international bodies.

While President Bill Clinton signed on to the Kyoto Protocol global warming agreement and the International Criminal Court, he sent neither to the Senate for ratification with both facing certain defeat.

The Senate recorded a 95-0 vote in opposition to Kyoto and President George W. Bush withdrew the U.S. signature to the ICC in 2002.

However, neither the ICC nor Kyoto offered the economic benefits to the U.S. while expanding resource claims, as LOST would. And that fact turns the usual sovereignty argument on its head, Begich said.

"Right now our sovereignty is being decided by other countries," he said.

President Ronald Reagan's initial rejection of LOST was based on its onerous requirements to transfer mining royalties, claims and technology to "geographically disadvantaged" countries through the International Seabed Authority.

The ISA's authority and funding through developed nations was all but neutered as part of the 1994 agreement, along with the elimination of technology transfers. However, restrictions on military activity in territorial waters such as requiring submarines to surface and fly the flag remain.

Murkowski said the U.S. could exempt itself from aspects of LOST it finds disagreeable when it ratifies the treaty. At a Senate Armed Forces Committee hearing, U.S. Northern Commander Gen. Victor Renuart Jr. told Begich he didn't believe LOST would impact U.S. sovereignty and endorsed ratification.

Strange bedfellows

The confluence of the energy industry and environmental groups supporting ratification of LOST is a particularly interesting one given their traditional conflicts. Ratification opposition from influential conservative think tanks like the Heritage Foundation point to the environmental impact regulations of LOST as yet another tool environmental groups will use to challenge offshore drilling.

Clinton signed LOST after the 1994 agreement amending the original 1982 language but it was never sent to the Senate for ratification. Nonetheless, the Natural Resources Defense Council cited the U.S. status as a signatory to LOST when it successfully fought the Navy's sonar testing off the coast of California.

Groups like the NRDC support the treaty but oppose drilling in the Arctic National Wildlife Refuge and anywhere offshore, which makes them unlikely to support any exploitation of mineral resources in the Arctic Ocean.

Begich, who generally bucks his party by supporting increased OCS development in Alaska, sidestepped as a hypothetical the potential for environmental groups to use LOST to fight mineral extraction.

"We can't have that discussion because we're not a part of the treaty," he said.

Murkowski was more blunt in her assessment, but echoed Begich on the need to have a seat at the table.

"I have no, no, no, optimism the environmental groups that have opposed development onshore or offshore are going to change that opposition," she said. "When it comes to our ability to claim additional area under the Law of the Sea based on the continental shelf, we can't do anything until we ratify that and are a participant."

NRDC spokesperson Lisa Speer said Republican resistance to LOST has always been the largest hurdle to ratification.

"We have nothing but praise for Alaska's senators trying to push this ahead," Speer said. "Periodically we make a big push and just run into a wall of Republican opposition. The United States is the only major participant that has not ratified. It sends a negative signal to the rest of the world about the seriousness with which we see Arctic issues."

Overcoming Republican opposition led by David Vitter of Louisiana and Jim DeMint of South Carolina - who helped kill ratification efforts introduced in 2004 and 2007 by the Bush Administration - is tougher than ever with the political well on the Potomac poisoned by the rancorous health care debate of the last 14 months and looming battles over financial reform, immigration reform and cap-and-trade climate legislation figuring to suck whatever oxygen is left out of the atmosphere in Washington with less than 45 days remaining before the August recess and the 2010 midterm elections approaching.

"It's a very unusual grouping that is supportive of this," Speer said. "One would think that is enough. But it's not enough to garner the votes on the Republican side that we really need."

The Obama Administration favors LOST ratification, but blocking out a week of floor time to debate the measure will be virtually impossible, especially as the White House seems more inclined to push for consideration of its recent nuclear pact updating the Strategic Arms Reduction Treaty with Russia, which likely will face an uphill climb in the Senate as well.

# # #


Source: By Andrew Jensen. Originally published May 07, 2010