Will the U.S. Senate Finally Give Its “Advice and Consent” to U.S. Ratification of the Law of the Sea Treaty?

The United Nations Convention [Treaty] on the Law of the Sea sets out international rules for maritime navigation, territorial waters and countries’ use of offshore areas as exclusive economic zones. It was the result of an international conference that concluded on December 10, 1982 at Montego Bay, Jamaica when the U.S. and 120 other nations adopted the text of the treaty, and it went into force on November 16, 1994. Now 162 of the 193 U.N. member states are parties to the treaty.

The U.S. signed the treaty on July 29, 1994, but it has not been ratified by the U.S. Such ratification, however, is once again on the table as we will see after reviewing what has happened in the U.S. with respect to the treaty in the nearly 30 years since it was adopted. This is another example of the complicated and difficult process of obtaining U.S. Senate advice and consent to ratification of a treaty by a two-thirds vote (67 Senators) under Article II, Section 2(2) of the U.S. Constitution that was examined in a post with respect to the Convention Against Torture.

Background

Although the treaty was concluded during his Administration, President Regan did not sign the treaty. Nor was it signed during the George H.W. Bush Administration.

President Bill Clinton

But on July 29, 1994, President Bill Clinton signed the treaty along with a July 28, 1994, Agreement resolving U.S. and others’ objections to a part of the treaty. On October 7, 1994, Clinton submitted the treaty and the Agreement to the U.S. Senate for its “advice and consent” to ratification by the U.S. In his transmittal message, President Clinton said that since 1982 successive U.S. administrations had not signed the treaty because of flaws in its regime for managing the development of mineral resources of the seabed beyond national jurisdiction, but these provisions had been changed by the just mentioned Agreement.[i] Therefore, according to the President, it was now appropriate for the U.S. to join the treaty. President Clinton also stated:

  • “The United States has basic and enduring national interests in the oceans and has consistently taken the view that the full range of these interests is best protected through a widely accepted international framework governing uses of the sea. Since the late 1960s, the basic U.S. strategy has been to conclude a comprehensive treaty on the law of the sea that will be respected by all countries. Each succeeding U.S. Administration has recognized this as the cornerstone of U.S. oceans policy. Following adoption of the Convention in 1982, it has been the policy of the United States to act in a manner consistent with its provisions relating to traditional uses of the oceans and to encourage other countries to do likewise.”

Furthermore, President Clinton continued, this treaty had the following benefits for the U.S.:

  • “The Convention advances the interests of the United States as a global maritime power. It preserves the right of the U.S. military to use the world’s oceans to meet national security requirements and of commercial vessels to carry sea-going cargoes. It achieves this, inter alia, by stabilizing the breadth of the territorial sea at 12 nautical miles; by setting forth navigation regimes of innocent passage in the territorial sea, transit passage in straits used for international navigation, and archipelagic sea lanes passage; and by reaffirming the traditional freedoms of navigation and overflight in the exclusive economic zone and the high seas beyond.”
  • “The Convention advances the interests of the United States as a coastal State. It achieves this, inter alia, by providing for an exclusive economic zone out to 200 nautical miles from shore and by securing our rights regarding resources and artificial islands, installations and structures for economic purposes over the full extent of the continental shelf. These provisions fully comport with U.S. oil and gas leasing practices, domestic management of coastal fishery resources, and international fisheries agreements.”
  • The treaty is “a far-reaching environmental accord addressing vessel source pollution, pollution from seabed activities, ocean dumping, and land-based sources of marine pollution . . . . [It thereby]  promotes continuing improvement in the health of the world’s oceans.”
  • The “Convention sets forth criteria and procedures to promote access to marine areas, including coastal waters, for research activities.”
  • “The Convention facilitates solutions to the increasingly complex problems of the uses of the ocean–solutions that respect the essential balance between our interests as both a coastal and a maritime nation.”
  • “Through its dispute settlement provisions, the Convention provides for mechanisms to enhance compliance by Parties with . . . [its] provisions.”

Nine years later in October 2003, the Senate Committee on Foreign Relations held the first hearings on the treaty, and on February 25, 2004, the Committee unanimously ordered it to be reported favorably without amendments to the full Senate. The treaty went to the Senate floor on March 11, 2004 with a report by Committee Chair, Republican Senator Richard Lugar of Indiana. However, no vote on the resolution of advice and consent had been taken when the congressional session ended in December 2004, and, therefore, the treaty was referred back to the Committee on Foreign Relations.

The George W. Bush Administration had asked for ratification in 2004. In fact, the Law of the Sea was one of only five treaties that the Bush Administration placed in its “urgent” category on its list of treaty priorities. Widespread support for ratification was expressed to the Committee:

  • Representatives from the Department of State, the Office of the Secretary of Defense, the U.S. Navy, the U.S. Coast Guard, and the Commerce Department testified in support of the Convention at various Congressional hearings.
  • Representatives from six Bush Administration Cabinet departments participated in the interagency group that helped write the resolution of advice and consent accompanying the treaty. And the U.S. Commission on Ocean Policy, appointed by President Bush, strongly endorsed U.S. accession to the Law of the Sea.
  • In the private sector, every major ocean industry, including shipping, fishing, oil and natural gas, drilling contractors, ship builders, and telecommunications companies that use underwater cables, supported U.S. accession to the Law of the Sea and are lobbying in favor of it. The National Foreign Trade Council, representing hundreds of exporting companies, also supported ratification.
  • Moreover, a long list of environmental and ocean groups had endorsed the treaty because it would protect and preserve the marine environment and establish a framework for further international action to combat pollution.
  • During the Committee’s consideration of the treaty, it received just one inquiry voicing opposition to the measure and that was from an individual representing himself. Staff offered to receive written testimony from this individual, but none was sent.
Senator                Richard Lugar
Despite this strong support for ratification of the treaty, full Senate consideration of the treaty in 2004 had been held up by vague and unfounded concerns about its effects. Chairman Lugar commented that these concerns had been expressed primarily by those who oppose virtually any multi-lateral agreement. “Various conservative lobbyists have indicated strong objections—they believe our sovereignty will be impugned.” Senator Lugar lamented this inaction. He said, “If we cannot get beyond political paralysis in a case where the coalition of American supporters is so comprehensive, there is little reason to think that any multi-lateral solution to any international problem is likely to be accepted within the U.S. policy-making structure.” Moreover, the Bush Administration was not willing to expend political capital to push for ratification, and Senate Majority Leader Frist was not willing to put it on the Senate calendar in light of a threatened filibuster.
Senator Joe Biden

Nearly three years later, in September and October 2007, that Committee held another set of hearings on the treaty, and on October 31, 2007, ordered it to be reported favorably without amendments to the full Senate by a vote of 17 to 4. The treaty went to the Senate floor on December 19, 2007 with a report by Committee Chair, Democratic Senator Joe Biden of Delaware. However, no vote on the resolution of advice and consent had been taken when the congressional session concluded on January 2, 2009, and, therefore, the treaty was referred back to the Committee on Foreign Relations.

Senator Lugar again reflected on this failure to obtain the Senate’s advice and consent to ratifying this treaty. He said there needed to be a “reinvigorated Senate commitment to the treaty process.” Senate leaders of both parties, he said, had allowed narrow objections to prevent Senate consideration of this and other treaties and had been unwilling to invoke cloture to terminate debate on treaties. For this blogger, this is another example of the abysmal rules of the U.S. Senate.

Renewal of Interest in U.S. Ratification of the Treaty

As previously mentioned, possible U.S. ratification of the treaty is back on the table.

Secretary Leon Panetta

On May 9, 2012, Secretary of Defense Leon Panetta gave a lengthy speech calling for such ratification. He said this treaty is “the bedrock legal instrument underpinning public order across the maritime domain” and yet the U.S. is the only permanent member of the U.N. Security Council and the only industrialized country in the world that is not a party. This puts the U.S. at a distinct disadvantage, particularly when it comes to disputes over maritime rights and responsibilities.

Panetta noted, as detailed above, that the Senate Foreign Relations Committee has held hearings and approved the treaty by large bipartisan majorities and that the treaty is supported among major U.S. industries in order to be able to do their business and to accomplish their goals.

The same is true for national security, Panetta said, as demonstrated in comments by the Chairman of the Joint Chiefs of Staff, the Chief of Naval Operations, the Commandant of the Marine Corps, and the Coast Guard Commandant. Panetta then listed some of the reasons why this treaty is essential to a strong national security.

First, as “the world’s pre-eminent maritime power,” the U.S. with one of the largest coastlines and extended continental shelf in the world “has more to gain from accession to the Convention than any other country because of the interest we have from our coastlines, from our oceans, and from our continental shelves.  By . . .  sitting at the table of nations that have acceded to this treaty, we can defend our interests, we can lead the discussions, we will be able to influence those treaty bodies that develop and interpret the Law of the Sea.  If we’re not there, then . . . [others will] do it, and we won’t have a voice.” Under these circumstances, the U.S. will not be able “to ensure that our rights are not whittled away by the excessive claims and erroneous interpretations of others.” To be a party, on the other hand, “would give us the credibility to support and promote the peaceful resolution of disputes within a rules-based order.”

Second, by joining the Convention, the U.S. “would protect our navigational freedoms and global access for our military, our commercial ships, our aircraft, and our undersea fiber optic cables.  As it currently stands, we are forced to assert our rights to freedom of navigation, asserting hopefully, through customary international law, which can change to our own detriment.” But by joining the Convention, “we would help lock in rules that are favorable to freedom of navigation and our own global mobility.”

Third, “accession [to the treaty] would help lock-in a truly massive increase in our country’s resource and economic jurisdiction, not only to 200 nautical miles off our coasts, but to a broad continental shelf beyond that zone.”

Fourth, “accession would ensure our ability to reap the benefits of the opening of the Arctic – a region of increasingly important maritime security and economic interest.  We already see countries that are posturing for new shipping routes and natural resources as Arctic ice cover melts and recedes.  The Convention is the only means for international recognition and acceptance of our extended continental shelf claims in the Arctic, and we are the only Arctic nation that is not party to the Convention.”  Accession would also “preserve our navigation and over-flight rights throughout the Arctic, and strengthen our arguments for freedom of navigation through the Northwest Passage and Northern Sea Route.”

Finally, the new U.S. “defense strategy emphasizes the strategically vital arc extending from the Western Pacific and East Asia into the Indian Ocean region and South Asia.”  Many countries “sit astride critical trade and supply routes and propose restrictions on access for military vessels in the Indian Ocean, Persian Gulf, and the South China Sea.” The U.S. has had a consistent naval presence and engagement in these critical regions.   Becoming a party to the Convention would strengthen the U.S. position in these key areas. By not acceding to the Convention, the U.S, potentially is undercutting “our credibility in a number of Asia-focused multilateral venues – just as we’re pushing for a rules-based order in the region and the peaceful resolution of maritime and territorial disputes.”  Being a party to the treaty is also important for the U.S. efforts to preserve freedom of transit in the Strait of Hormuz in the face of Iranian threats to impose a blockade.

Democratic Senator John Kerry, the Chairman of the Senate Foreign Relations Committee, has said that he is considering holding new hearings on the treaty.

Conclusion

In a presidential election year bipartisan cooperation is even more difficult than normal, especially after Senator Lugar’s loss in the Indiana primary election this past Tuesday. Therefore, it seems unlikely that the Senate this year will give its advice and consent by a two-third’s vote to ratification of this treaty. We will wait and hope that this assessment is proven wrong.


[i]  Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, with Annex, adopted at New York, July 28, 1994

The Antiquated U.S. Constitution

U.S. Constitution

With the U.S. Supreme Court arguments this week regarding the Affordable Health Care Act we are reading and hearing what seems like non-stop commentary on the constitutional arguments that are being made by the lawyers and questioned by the Justices.

As a retired lawyer who studied constitutional law in law school nearly 50 years ago and who was a lawyer in some constitutional cases, I should be enjoying this commentary. But I am not.

I increasingly am coming to the conclusion that the U.S. Constitution is antiquated and needs radical changes.

We in the U.S. have developed a cult of worshipping the Founding Fathers as if they were demigods. Yes, they were wise in many ways, especially on the need for checks and balances in any governmental system. But if they were as wise as we often think they were, then do we really think that these men of the late 18th century would want their descendants in the early 21st century to obsess over what we think they intended in the late 18th century? Especially over terms like “due process” and “cruel and unusual punishment” that appear on their face to invite evolving meaning as circumstances change?

The U.S., in my opinion, is one nation, and the national government needs to be able to address problems facing the nation, like the problem of providing affordable health care to its citizens. The so-called “individual mandate” is one way to address that problem and should be permissible.

There are so many other problems that the U.S. is not addressing today. Our governmental system–our Constitution–is not working, in my opinion.

I have no grand alternative constitutional schema in mind, but as previously noted, I think the U.S. Senate in particular needs radical reform if we are to retain a bicameral national legislature.

To require 60% of the Senators to agree in order to do almost anything for me is outrageous. It should only be 51% for most issues. This deficiency is exacerbated by the fact that each state has two and only two Senators regardless of the state’s population. Yes, this was part of the original grand and anti-democratic compromise in the late 18th century when there were 13 states. But the expansion of the union to 50 states has made the Senate even more anti-democratic.

Since I believe that it would not be wise to increase the size of the Senate to reflect the population of the states (like the allocation of seats in the U.S. House of Representatives) and that each state should continue to have two Senators in a bicameral upper house, I suggest for discussion that there be weighted voting in the Senate. Each Senator from Wyoming (the least populous state in 2010 with 564,000) would have 1 vote, for example, but each Senator from California (the most populous state in 2010 with 37,254,000) would have 66 votes (37254/564 = 66.05). This approach would produce a total Senate vote of 1,094 (total U.S. population in 2010 of 308,746,000 divided by 564,000 (population of Wyoming) = 547 x 2 = 1094). The weightings would be changed every 10 years with the new census population figures.

As I suggested in a 1996 virtual constitutional convention, I would also change the term of office of members of the House of Representatives from two years to four years to coincide with the presidential election. This should result in less divided and stalemated government.

I also recommend that we have direct election of the U.S. President by the national popular vote and abolish the electoral college. This would eliminate the possibility of a repeat of the outrageous Bush v. Gore decision of the U.S. Supreme Court in 2000.

This new constitutional framework would permit the national legislature to enact laws regulating guns and political contributions, now virtually forbidden by the Supreme Court’s interpretations of the existing Constitution.

The process of amending our current Constitution is appropriately difficult. Probably a new constitutional convention would be the most appropriate way to make the kind of changes I think should be considered and adopted. I despair, however, when I speculate of how such a convention could be held today.

The Abominable Rules of the U.S. Senate Are Modified

   The Rules of the U.S. Senate improperly thwart the rule of the majority.[1]

Last week another facet of those Rules raised its ugly head. In response there was a modest indirect change to the rules that facilitates the Senate’s being able to act on measures on the merits.[2]

At least sixty-two Senators, including 11 Republicans, had voted to end debate on a bill to impose sanctions on China for failure to revalue its currency. Under a Rule that allows consideration only of proposed amendments that the parties agree to be considered after cloture, there was an agreement for consideration of seven such amendments for the Chinese currency bill.

Senator Mitch McConnell

Republican Senate Minority Leader Mitch McConnell then made ten motions to suspend the rules to allow introduction, debate and voting on unrelated amendments. Under the Senate Rules, such a motion to suspend the rules requires a two-thirds vote (67 Senators).

In response to one of the motions to suspend the rules, Democratic Senate Majority Leader Harry Reid raised a point of order that such a motion was not permitted. The Senate Parliamentarian speaking through the chair of the Senate rejected the point of order and thereby allowed consideration of the motion to suspend. Reid then appealed the ruling of the chair to the entire Senate, and the Senate by a simple majority vote sustained the appeal and thereby overruled the Parliamentarian and barred the motion to suspend the rules.

Senator Harry Reid

I am against the Senate Rule that requires at least 60 votes to end debate on a measure and another Senate Rule that requires a two-thirds vote (67) to change the Rules. I, therefore, am pleased to see this very modest indirect modification of the Rules to improve the ability of the Senate to act on measures on the merits.

But maybe it is not such a modest change. Senators are now “abuzz” about the previously rarely used tactic of challenging the Parliamentarian’s rulings. Texas Senator John Cornyn, Chairman of the National Republican Senatorial Committee, is reported to have said, “If we get in the majority, in which I anticipate we will, this completely freezes out the minority, which is where the Democrats will find themselves.” There is speculation that it may make Republicans in the current Senate less willing to break a filibuster if Senator Reid does not agree to allow their amendments for votes.[3]

Senator Reid reportedly is trying to soothe tensions by inviting Republican Senators to join Democrats in a rare bipartisan closed-door meeting to discuss these arcane issues of Senate Rules and procedure.[4]

In the meantime, on October 11th, the Senate by a vote of 63 to 35 (with 16 Republicans) passed the bill that would require the U.S. Treasury Department to determine if China was improperly valuing its currency to gain an economic advantage and if such a determination were made to order the U.S. Commerce Department to impose stiff tariffs on certain Chinese goods.[5]

That vote, however, is not the end of that story. Another version of a bill on Chinese currency passed the House of Representatives, 348 to 79, in 2010 while the Democrats still controlled that body. Now House Republicans in the majority do not intend to bring the Senate bill to the floor. The White House probably is pleased with this stalemate because it is concerned about the impact of such a bill on the many issues between the U.S. and China. Not surprisingly China has threatened a trade war if the bill becomes law.[6]


[1] See Post: The Abominable Rules of the U.S. Senate (April 6, 2011).

[2] Sonmez, Senate makes unprecedented rules changes amid late-night debate over jobs, procedure, http://www.washpost.com (Oct. 7, 2011); Reid, Trying to restore Senate comity, http://www.washpsot.com (Oct. 10, 2011); Editorial, Chipping Away at Gridlock, N.Y. Times (Oct. 10, 2011).

[3] Raju, Is 51 the new 60 under Senate rules?, http://www.politico.com (Oct. 11, 2011).

[4] Id.

[5]  Steinhauer, Senate Jabs China Over Its Currency, N.Y. Times (Oct. 11, 2011).

[6]  Id.; Liberto, Senate passes China currency bill, http://www.cnnmoney.com (Oct. 11, 2011).