Both
Bush and Kerry want to ratify
the Law of the Sea Treaty this month
By
Jonathan
Power
TFF Associate
since 1991
Comments to JonatPower@aol.com
November 3, 2004
LONDON - This week as the world
watched with baited breath the American presidential
election the last thing that most people were thinking
about was sea and oceans. Yet both George W. Bush and
John Kerry were unanimous on one important point of
foreign policy - although neither spoke a word about it.
They agreed, if elected, that they would move to ratify
the UN's Law of the Sea. It could happen before the month
is out.
All the road blocks of the last
twenty years since President Reagan decided to torpedo
the treaty have been removed and Congress is poised to
give the White House the green light on ratification. It
will be a momentous step forward for international law,
one which defeated a willing Bill Clinton and is out of
character for the unilateralist-inclined George W. Bush.
But the consensus in Washington is now very
real.
Until the Law of the Sea was
drafted the seas and oceans around us, two thirds of our
planet, were largely lawless. When 350 years ago the
Dutch jurist, Hugo Grotius, formulated the doctrine of
the freedom of the seas, laissez faire seemed a
magnificent idea. "Let no man possess what belongs to
every man."
But this is the age of giant
tankers, oil spills that destroy whole coasts, declining
fish catches, disputes over rights of passage and maybe
the beginnings of a gold rush for minerals and genetic
resources on the bottom of the sea.
After 26 years of negotiation in
which America played an active part the Law of the Sea
came into force ten years ago this month. It was an
historical milestone in the annals of nation state
competition and commercial exploration. It gave the world
a chance to arrange for mankind a fair distribution of
its common patrimony of the seas. It has the chance of
establishing precedents that could be applied to other
endeavors like the slicing up of oil-rich Antarctica and
Artic Ocean, currently being disputed by nations as
diverse as Denmark and Russia, the future frontiers of
the moon, the planets and outer space. This is why some
say it is, in its own way, a Magna Carta for the 21st
century.
It was a Republican president,
Richard Nixon, who first coined the term to describe the
seas as "the common heritage of mankind". Nixon's
attitude was anomalous: the U.S. attitude to
international law had long been ambiguous and
uncertain.
President Harry Truman was the
first to challenge the conventional wisdom then reigning
as laid down by Grotius. In 1945 he proclaimed U.S.
jurisdiction over the seabed resources of the continental
shelf. Three years later, Chile Peru and Ecuador raised
the stakes by claiming 20-mile maritime zones and seizing
American tuna boats fishing in their waters. The fear was
that nations might go further and declare exclusive
200-mile territorial waters.
It was in an attempt to find some
accommodation among these new coastal jurisdictions and
traditional high seas freedom that the Law of the Sea
conference was convened. The result was one of the great
negotiating texts of all time- far more comprehensive,
detailed and demanding of shared sovereignty than that
for the International Criminal Court. It weighs the
interests of continental nations like the U.S. and
Russia, islands like the Philippines and Jamaica and
landlocked states such as Austria and Chad.
The treaty rolls back existing
claims of territorial jurisdiction wider than 12 miles.
It writes into international law the right to free and
unimpeded passage through the 100 straits that are
narrower than 24 miles. (This has brought the Pentagon
down firmly on the side of the treaty after a series of
disputes including one with good neighbor, Canada, over
the North West Passage, now steadily becoming ice-free.)
And the treaty while recognizing exclusive 200-mile
economic zones for coastal states would not allow them to
restrict the passage of ships or the over flight of
planes of other nations.
Once the U.S. ratifies the treaty
the pressure will be on the few other dissenting states
to ratify. China, despite its nervousness about
recognizing a treaty that would give the U.S. navy the
undisputed right to patrol the Taiwan Strait, has long
ago ratified it. More the pity that the Law of the Sea
does not address territorial disputes that were underway
before it was negotiated - like who controls the Spratly
Islands that pits China against Vietnam, Taiwan, and the
Philippines. Future amendments of the treaty could deal
with that. But America needs to ratify the treaty this
month- the ten-year deadline is up- if it is to be
eligible to vote on amendments.
Copyright © 2004 By
JONATHAN POWER
I can be reached by
phone +44 7785 351172 and e-mail: JonatPower@aol.com
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