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The UN's sinking law of the sea
By Alan Boyd

SYDNEY - A conservative revolt that waylaid Washington's latest attempts to ratify the United Nations Convention on the Law of the Sea has also set back hopes of a more effective disputes mechanism for contested natural resources in Asia.

Continuing a standoff that has existed since the treaty was enacted in 1982, the United States Senate again declined to debate a Foreign Relations Committee resolution, backed by the administration of President George W Bush, that might have led to recognition of the world's most ambitious forum for conflict resolution.

Another bid is expected to be made through one of six alternate committees that have jurisdiction on the issue, but it is unlikely this will happen before the end of the year, even if the White House liberals behind the initiative can still attract Bush's support.

Ratified by 145 of the UN's 195 independent members, the treaty has never been allowed to realize its full potential because a vocal US lobby argues that it would impinge on the right of Americans to decide how to exploit their natural resources.

The chief point of contention is a provision under the treaty for an International Seabed Authority (ISA) that would regulate the offshore marine environment and rule on sovereignty battles through a multinational court. It would be empowered to levy taxes, issue permits for fishing and mining, impose quotas for the exploitation of gas and oil reserves, fix the prices of marine products, and control research and exploration activities.

Conservative groups such as the Heritage Foundation, American Policy Center and the Free Congress Foundation are worried that the ISA will operate outside Security Council jurisdiction, which could leave it open to domination by sectoral interests, especially from the Third World.

"The best thing we can do with this treaty is never to sign it - to sink it. Unfortunately, this is a very difficult task given the fact that there is an element within the Bush administration that wants it and, if they do not succeed in getting it, then there is likely to be a push by succeeding administrations," said Paul M Weyrich, chairman of the Free Congress Foundation.

Former president Ronald Reagan engineered the original US boycott of the treaty in 1982 by simply ensuring that it never went beyond the committee stages. Likewise, Reagan's successor George H W Bush, stonewalled when he was in office.

Bill Clinton's administration put the issue back on the congressional agenda in 1994, though only after winning substantial concessions from the UN that watered down the ISA's mandate while leaving the treaty's basis intact. But his tenure ended before the revamped resolution could reach the Senate.

In stepped Foreign Relations Committee chairman Richard Lugar, a Republican senator with strong White House support who is convinced the US has more to lose from staying aloof from the international community. Bush's own sentiments toward the treaty are not clear.

Whether it is in or out, Washington will decide how effective the treaty can be in policing what is potentially the most volatile area of global security. But ratification might at least remove technical ambiguities and encourage the ISA to cut across political sensitivities.

The UN secretariat complained last month that many countries were wrongly applying the treaty, presumably for their own ends, while warning that mediation efforts would not realize their potential unless there was more consistency.

China has been accused by the US of using some statutes to further its economic interests and advance security objectives. These include a requirement for information sharing on sea exploration that would amount to mandatory technology transfers.

Defense adviser Dr Peter M Leitner, a longtime critic of ratification, testified to a congressional committee in March that Beijing had been able to acquire "sensitive technology vital to our national security" through offshore mining permits. Despite Pentagon protests, the technology, which he alleged could be used to bolster China's capability in submarine warfare, had been handed over by government agencies "so as not to undermine the spirit of the treaty".

Beijing has also challenged the Proliferation Security Initiative, an anti-terrorism operation led by the US and the United Kingdom that includes interdiction measures against vessels suspected of aiding in the spread of weapons of mass destruction.

North Korea, a close ally of China, has been a prime target of the sea blockade. But during a recent committee hearing, none of the White House's senior legal aides were able to confirm whether the US would be liable for retaliatory measures if it allowed a ship to be boarded - even if this happened within the economic zone claimed by the US.

All Asian countries other than Cambodia, North Korea, Thailand and East Timor have ratified the treaty. However, it has had virtually no impact on regional tensions due to the widely differing interpretations adopted by signatories.

This is partly because of hazy legal definitions. While the treaty recognizes innocent passage, transit passage, archipelagic sea-lane passage, and high seas as the four types of navigation rights, the specifics are not spelled out.

There are also numerous let-out clauses that allow signatories and non-signatories alike to set the parameters of treaty provisions, usually successfully.

Hence South Korea has been able to assert control over much of the volatile Cheju Strait by contesting its status as a major navigation route on the grounds that ships can use an alternative route closer to the sea.

Taking this process a step further, Seoul has declared an exclusive economic zone (EEZ) of 200 nautical miles that includes a "security zone" of 150 by 75 nautical miles in which most shipping operations are prohibited.

For its part, North Korea has established a 200-mile EEZ with a 50-mile "military zone" that also has limited access rights. Both zones, as well as a separate EEZ maintained by Japan, intrude into waters in the Sea of Japan that are contested by all four countries and Russia.

Japan, China and South Korea could technically be prosecuted by the ISA for blocking navigational rights. But this is not likely to happen until there have been separate rulings on the various national boundaries, and there is little political will to intervene.

One reason for the free-for-all is the impotency of the US, which is understandably loath to help police the statutes, even for the sake of regional stability, as long as it doesn't accept their legitimacy.

"A most fertile source of dispute may be the question of whether or not a non-ratifying state like the United States may avail itself of the [treaty's] provisions governing the various navigational regimes," said Mark J Valencia, a researcher at the Institute on Global Conflict and Cooperation.

"The United States argues that these navigational 'rights' are customary international law, and negotiated an agreement with the former Soviet Union declaring these rights and guaranteeing mutual observance thereof.

"However, some ratifiers like China may not agree, and since the United States is not a party to the treaty, it cannot avail itself of the dispute-resolution provisions. This then leaves the resolution of such disputes purely in the political arena."

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Apr 6, 2004

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