Foreign Policy Blogs

UNCLOS and the Lessons from Ratifying New START

Before the close of the congressional lame duck session, President Barack Obama made favorable headlines for himself by obtaining the requisite Senate approval for New START—a bilateral treaty on nuclear arms between Russia and the United States.  Although New START may foreshadow future cooperation between Russia and the United States (which could have an important effect on Arctic relations), the political tact used by Obama may prove more useful for ratifying the long-stalled United Nations Convention on the Law of the Sea (UNCLOS), a treaty with significant Arctic importance.  By having the military lobby moderate Republican Senators, like he did with New START, Obama may be able to ratify a treaty that his predecessor, President George W. Bush, failed to do.

As reported by Mia Bennett, the National Academy of Sciences, at the request of the U.S. Navy, released a report detailing national security issues stemming from climate change.  At the top of its list:  “Support ratification of the United Nations Convention on the Law of the Sea.”  Importantly, the report asserted that “[t]he ability of U.S. naval forces to carry out their missions would be assisted if the United States were to ratify UNCLOS.”   Simply put, ratification of UNCLOS would help the U.S. military.

It is no secret that the Arctic’s militarization stems largely from seeking jurisdictional control over contested territories.  This is directly related to UNCLOS.  From Canada flexing its military in its Northern archipelago to Russia patrolling the Lomosov Ridge with nuclear submarines, most Arctic action can be tied in some form to supporting a UNCLOS legal claim.

Under UNCLOS, legal jurisdiction over Arctic territories will allow countries to award mining contracts, stipulate shipping fees, and direct environmental stewardship.  The United States, Canada, Norway, Russia, and Denmark (via Greenland) have shoreline resting on the Arctic Ocean and thus, have competing territorial claims over Arctic waters.  Under UNCLOS, proof of an extended continental shelf expands that country’s territorial jurisdiction over oceanic territory.  The country with a successful territorial claim has the authority to promulgate shipping regulations (including tolls for passage) or environmental controls, and award mining contracts.

It is likely that that the UNCLOS treaty regime will ultimately be the deciding factor in dividing most of the oceanic territories.  A the very least, it will have a major impact on negotiations.  In fact, last year Canada and Russia, two countries with the longest Arctic shorelines, agreed that the United Nations would be the final arbiter of their disputes.  However, of the five circumpolar countries, only the United States has yet to ratify UNCLOS even though it participated in drafting the treaty and recognizes or follows UNCLOS provisions.

It would seem to follow that U.S. ratification of UNCLOS is in the national interest and should be swift.  But that has not been the case.  Although his administration played an integral role in negotiating the treaty, President Reagan ultimately did not sign it because of a clause regarding deep-sea mining.  This contested issue was negotiated-out by the Clinton Administration which led President Clinton to subsequently sign it and submit it to the Senate for ratification.  The treaty was not ratified.

Most recently, in 2007, President George W. Bush was unable to get Republican Senators to ratify the treaty.  President Bush designated the legislative initiative as “urgent.”  He had the full support of the Democratic Party and many Republican Senators.  Still, however, the Senate failed to ratify the treaty.  Senators Mitch McConnell and John Kyl led the Senate Republican protest—the same Senators that stubbornly refused to consent to Obama’s New START treaty.

It is true that UNCLOS and New START are much different; one is a multilateral treaty creating a global legal regime while the other is a bilateral weapons reduction treaty.  Their respective scopes are vastly different.  However, a similar political environment exists with UNCLOS, and it seems only a handful of Republican Senators are willing to block ratification (although far from certain).  Beyond the obvious differences between the treaties, one reason Obama was successful with New START, where Bush failed with UNCLOS, is that the military effectively lobbied for New START’s passage.

As recommended by the National Academy of Sciences report, the U.S. military, especially the U.S. Navy, needs to advocate for its passage should it firmly believe ratification of the legal regime is in its best interests.  Obama, unlike Bush with his own party, was able to bring Republican moderates onboard to ratify New START largely because the military forcefully lobbied for its ratification.  (On a side note, this tactic was also used to repeal the “Don’t Ask Don’t Tell” military policy.)  The Washington Post reported that speeches by NATO allies in support of the treaty, alongside the firm backing of the U.S. military helped persuade some Senators on the fence.  Adm. Mike Mullen and Secretary of Defense Robert Gates even answered questions on the Senate floor.

The political catchphrase that stopped passage of UNCLOS in 2007 was “Do you want a U.N. on steroids?” Whether or not the same political skepticism of UNCLOS still exists is uncertain, but should Obama have the political will, having the military lobby Congress, like he did with New START, may make ratification of UNCLOS politically feasible.  Who better to have in your corner than the U.S. Armed Forces?