US Will Not Join the Law of the Sea Treaty (At Least Not This Year)

It’s official. US ratification of UNCLOS is dead (at least for this year).  And, perhaps more significantly, the treaty was sunk by two senators, Robert Portman and Kelly Ayotte, both of whom appear to be on Republican nominee Mitt Romney’s vice-presidential short list.  Their announcements, in a letter to Senate Majority Leader Harry Reid, brings the number of announced U.S. Senators opposing US ratification to 34.  This effectively kills UNCLOS for this Congress.

The joint letter by Senators Portman and Ayotte cites most of the same objections set forth ably by Jeremy Rabkin and Steve Groves last month here at Opinio Juris.  The letter is skeptical of the fairness of the system of international dispute resolution set out by UNCLOS and worried about litigation under the ITLOS system or even in the ATS context. It is also skeptical of the ability of the Authority to fairly set forth rules and to administer the resources it will control.

The letter does throw in an argument that I’ve made in other contexts (and cites me in a footnote!): that the Seabed Disputes Chamber of the International Tribunal on the Law of the Sea may have unconstitutionally broad judicial powers to require enforcement of its judgments in US domestic courts.

The letter concedes, however, that there are substantial benefits of joining UNCLOS to the US Navy and to US commercial interests in exploiting undersea natural resources. But as to the first, it argues that the US government and navy can protect its navigation rights better than (or at least as well as) the UNCLOS system.  Intriguingly, the letter also points that commercial undersea development can still be protected via bilateral agreements, which has been done in the past (something Steve Groves has suggested).

I am still not totally sold on the practicability of this approach, but I do think that the next administration, whomever is elected, should explore such bilateral alternatives.  UNCLOS may be a great idea, but it is not going to be ratified by the US Senate in the foreseeable future. Time for oil and natural resources interests in the US to get a Plan B.