- The Washington Times - Wednesday, September 2, 2015

The international scramble over development, energy and climate change in the Arctic — highlighted by President Obama’s trip to the Alaska’s far north this week — is prompting fresh debate over whether American influence in the region may be limited by the fact that the U.S. is the only nation in the fight to have never ratified the Law of the Sea treaty.

U.S. officials refer regularly to the decades-old U.N. convention as a gold standard for resolving potential future disputes in the Arctic and elsewhere around the globe. But some international experts say there is a whiff of hypocrisy in such rhetoric because — while American diplomats signed the treaty in 1982 — Congress has never actually approved it.

Some 116 nations are party to the treaty and the U.S. as long abided by its basic protocols.

But even as officials at the State Department and Pentagon praise it for requiring other nations, such as Russia, to abide by its provisions, America’s failure to ratify “undercuts U.S. efforts to present itself as an honest broker,” said Stewart M. Patrick at the Council on Foreign Relations.

“Ratifying the treaty would put the United States in a far more credible position in being a champion of the international rule of law when it comes to things like freedom of navigation and the peaceful settlement of jurisdictional disputes,” Mr. Patrick said in an interview.

As security and commercial jockeying in the Arctic heat up, the U.S. would be well served to ratify the Law of the Sea treaty in order for the U.S. to be “a full participant in the last major division of sovereign territory on earth,” Mr. Patrick said.

John Bellinger, who served as the State Department’s legal advisor during President George W. Bush’s second term, said the stakes were “hundreds of billions of dollars in oil and gas.”

Like any nation with a land border touching the Arctic, the U.S. can legally lease rights for drilling and exploration along its so-called “exclusive economic zone,” which extends for 200 nautical miles into the Arctic from the U.S. shoreline.

But beyond that, argues Mr. Bellinger, a nation cannot legally claim sovereignty over Arctic territory “unless you are a party to the treaty.”

“If you’re an oil and gas company considering committing billions of dollars to an oil and gas exploration, the first thing you want to do is have a clear legal claim,” he said. “That’s why the other countries that border the Arctic — Russia, Canada, Denmark, Norway — have all filed claims [under the treaty] to their extended continental shelves in the Arctic, along with the oil and gas on those shelves.”

But Steven Groves, a senior research fellow at the conservative-leaning Heritage Foundation, said it is “nonsense” to claim the U.S. government can’t lease oil and gas rights to ocean-floor areas beyond the 200-mile economic zone —because Washington is already doing just that in another part of the world.

“We’re already having companies signing leases for territory beyond the zone in the Gulf of Mexico, where U.S. and foreign exploration companies have leased areas to the tune of tens of millions of dollars,” said Mr. Groves. “So it really deflates any argument that proponents try to make that companies are unwilling to explore for oil beyond 200 nautical miles because of legal concerns associated with our not having ratified this treaty.”

Mr. Groves also noted that the U.S. government is already negotiating with rival claimants such as Russia and Canada through the eight-member Arctic Council, formed in 1990s to coordinate Arctic geopolitics among nations who actually border the region.

“Liberals say we don’t have a seat at the table because we’re not part of the treaty, well, we created a whole new table called the Arctic Council,” he said. “This is multilateralism at work. You bring together nations that actually have skin in the game. It’s an example of how there really are ways to be multilateral and cooperative in the Arctic without joining some 370-page monstrosity that was dreamed up in the 1970s and requires royalties to be paid to access your own oil and gas.”

While not a member of the treaty, Washington has long cited its provisions in its diplomacy. Officials regularly point to the Law of the Sea to condemn China’s construction of military installations in disputed waters of the South China Sea — well beyond 200 miles from the Chinese shoreline. The Law of the Sea treaty has also served to keep Russia in line in the Arctic, Obama administration officials say.

Such was the case early this week, when State Department deputy spokesman Mark Toner was asked whether U.S. officials were concerned that Russia, which recently dispatched two mini-submarines to plant a flag of the Arctic seabed, was ignoring the Obama administration’s attempt to focus the international community on impacts of climate change in the region.

Moscow has also recently resubmitted a previously disputed claim to the U.N. for sovereignty over some 750,000 miles of Arctic shelf. Pressed on the issue, Mr. Toner said Russia is making the claim “the right way” because “they’re going about it through the Law of the Sea Treaty.”The treaty has languished in the Senate even though both the George W. Bush and Obama administrations strongly pushed for ratification.

Secretary of State John F. Kerry in 2012 held a series of hearings on the issue during his final year as chairman of the Senate Foreign Relations Committee. The committee had approved ratification on two previous occasions during the 2000s, but Republicans had blocked it before it could ever come up for a full floor vote.

“Today, we have the worst of all worlds,” Mr. Kerry said during one 2012 hearing. “We’ve effectively lived by the terms of the treaty for 30 years, but, as a non-party, we’re on the outside looking in. We live by the rules but we don’t shape the rules.”

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