Feature: The men for UNCLOS.
The turn of the year is a grand time for lists. Lists are everywhere so let us consider a short one of our own. What do the United States, Syria, the People"s Democratic Republic of Korea and Iran have in common? Correct: they are the only nations with a coastline not to accede to the UN Convention on the Law of the Sea (UNCLOS).
Some 157 countries have by now signed and ratified the instrument which provides the overarching framework for managing the world's oceans and what lies above and beneath them, but the US resists. On the occasion of the 15th anniversary since the treaty came into force, American voices are beginning to ask whether ratification would not just serve US strategic interests but send the sort of positive message that was promised by the election of Barack Obama.
In a recent briefing paper for the Council on Foreign Relations, visiting fellow for ocean governance Scott Borgerson and former Under Secretary of State for Political Affairs Thomas Pickering draw a parallel with the Copenhagen climate conference and suggest a number of reasons why accession would benefit the US.
UNCLOS is a model, they argue, of how to successfully negotiate a complicated global accord. Coming up with an agreed set of rules for the world's oceans was also a massive undertaking, requiring decades of patience, hard work, and deft diplomacy to iron out an agreement that would be acceptable to a diverse community of nations.
It is not a perfect parallel of course. The world laboured hard over the Kyoto Protocol too, only to see the world"s then biggest polluter fail to sign it so delivering the world into the political quagmire of Copenhagen.
The US helped to shape the UNCLOS convention and secured significant amendments to address its outstanding concerns but still failed to ratify. And for a nation concerned over the last decade with the projection of hard power, remaining non-party to the convention must have seemed like a point of diplomatic inconsequence.
Borgerson and Pickering point to issues which have emerged so quickly as to almost have been below the radar in 1994 when the treaty entered into force.
Chief among these for the US is the melting Arctic icecap and the very real prospect of that the Arctic Ocean will be seasonally ice-free within a decade.
To Borgerson and Pickering, global warming on this scale makes action to reduce green house gas emissions imperative, but they also look beyond the melting to more traditional strategic maritime issues covered under the Law of the Sea.
While their perspective is entirely American, the issues they identify are of wider interest and US strategy and possible actions that derive from it ought to be of interest to other maritime nations. The retreating Arctic ice which is creating an effective shipping shortcut in the Northeast Passage is also yielding access to an estimated quarter of the world's remaining hydrocarbon reserves, a fact which has already seen Arctic nations jostle to extend the legal definition of their continental margins.
Virgin fishing stocks are also becoming accessible, spurring the recent decision in Washington to secure exploitation of some of these resources in domestic waters and helping to inspire President Obama to charter a White House Ocean Policy Task Force.
Non-ratification of UNCLOS keeps the US ?hobbled on the Arctic's geopolitical sidelines? and unilaterally frozen out of an important international policymaking body. The US also marginalises itself in the International Seabed Authority, the UN body established by the convention to oversee deep seabed mining.
The US has no say in the commission with the authority to validate national claims to extend exclusive economic zones on the outer continental shelf, a process that is the last great partitioning of sovereign space on earth.
By being the last significant maritime nation in the world to remain outside UNCLOS, the authors say, the US is forgoing an opportunity to extend its national jurisdiction over a vast amount of ocean area on its Arctic, Atlantic, and Gulf Coasts, while simultaneously abdicating an opportunity to have a say in deliberations over other nations" claims.
Acceding to the convention would allow for an expansion of US sovereignty by extending sea borders, guaranteeing the freedom of movement of ships and airplanes for the world's most powerful navy and enhance legal tools to combat piracy, drug trafficking, human smuggling and proliferation of weapons of mass destruction.
National participants in the US-organised CTF151 task force in the Indian Ocean as well as US-led coalitions to prosecute DPR of Korean contraband shipments under the Proliferation Security Initiative rightly ask why they should assist the US in enforcing the rule of law when it refuses to recognise the convention that guides the actions of virtually every other nation.
UNCLOS would also be an important vehicle in co-ordinating action on environmental initiatives from fishing and climate change to ocean acidification, sea level rise and the growing problem of marine pollution generally. The convention is also critical to US economic security as it governs commercial activities for both hydrocarbon extraction and deep-seabed mining.
And Borgerson and Pickering make the case that the US should take the opportunity to use renewed American multilateralism to foster co-operation and tackle a formidable list of ocean challenges in a co-ordinated manner. The contention that ratification would send ?the right message at the right time to the international community that the US can be trusted to negotiate complicated treaties in good faith? might be a little starry-eyed, but it would be something.
The obstacles to ratification remain in the form of two small but vocal lobby groups. The first believes it would be unfair if US companies engaged in mineral exploitation on the seabed had to share resources. The other reads the Convention as limiting US freedom of action on the high seas and is against the concept of the exclusive economic zone. Though the Bush Administration supported ratification, it did not want to offend these two groups and the Obama Administration will have a battle on its hands should it focus on ratification.
Borgerson and Pickering believe the stars are aligned for ratification and that a formal endorsement by the president would send the necessary signal to Congress. Already one year into his first term, Obama must get the process moving in the next two years before the election cycle creates further distraction. But if successful, ratification by the US might just prove the spur not just to a new era in maritime law but towards a comprehensive climate regime too.