It has been widely reported that Senator John Kerry (D-MA), Chair of the Senate Foreign Relations Com mittee, is considering bringing up the longdormant Law of the Sea Convention (“Convention”) for a vote in this Congress. Of course, the Senator has tried this before and was not able to muster the 2/3 vote required for ratifi cation. Will this year be any different? As a reminder, the Convention was negotiated in 1982, and after its ratifi cation by the requisite number of countries, went into effect in 1994. The U.S. signed the Convention but never ratifi ed it, an action that requires a 2/3 vote of the U.S. Senate. President Reagan declined to support ratifi cation in 1982 because of the seabed mining provisions in Part XI of the treaty, but instructed his agencies to comply with the rest of the treaty as a matter of customary international law—and that has been the position of the U.S. ever since. Subsequently, Part XI was renegotiated by the parties, and changes were made to satisfy U.S. concerns. Despite these modifi cations, the U.S. is still not a party to this major international treaty delineating rights and responsibilities to the oceans of the world and the resources that lie within.

Some things are different this year. For one, Senator Lisa Murkowski (R-AK), and Ranking Member on the Senate Energy and Natural Resources Committee, is actively supporting the treaty. This is no doubt due to the fact that Alaska and oil and gas interests may well stand to benefi t from ratifi cation and being able to claim larger portions of the outer continental shelf under the Arctic Ocean and adjacent to Alaska. As most readers know, the Arctic ice is melting and several nations, including Russia, are staking sovereignty claims to portions of the Arctic. But, the U.S. does not have a formal seat at the table of the Commission on the Limits of the Continental Shelf, a body established under the Law of the Sea Convention to review and certify claims. (See “Who Owns the Arctic?” N. Gronewold, New York Times, May 14, 2009.) The Commission is currently reviewing national claims to areas of the Arctic based on surveys conducted in the region. Interest in the resources under the Arctic Circle was greatly expanded when the U.S. Geological Survey, in 2008, released a study of undeveloped Arctic oil and gas resources. The study concluded that approximately 90 billion barrels of oil, 1669 trillion cubic feet of natural gas, and 44 billion barrels of natural gas liquids could be found there. (See “USGS Arctic Oil and Gas Report,” July 2008, http://geology.com/usgs/arctic-oil-and-gas-report.shtml.)

Other factors that may promote support for the Convention include the growing incidents of piracy in the Indian Ocean, Sea of Aden, and Red Sea. (See “Attacks off the Somali coast drive piracy to record high, reports [the International Maritime Bureau],” www.icc-ccs.org.) The U.S. Navy has to patrol these waters for this and other reasons, and the Navy has been a long-time supporter of the Convention for purposes of securing U.S. transit rights through international waters and straits.

The advance of oil and gas drilling into deeper waters, and the beginnings of a deep seabed mining industry, also could promote the ratifi cation of the Convention. U.S. claims to sovereign rights over the 200-mile Exclusive Economic Zone (“EEZ”) and Outer Continental Shelf (“OCS”) are currently based on customary international law. Customary international law consists of ”rules of law derived from the consistent conduct of nation states acting out of the belief that the law required them to act that way,” but nothing in customary international law is immutable and the conduct of nations can change over time. (See “Practices and Methods of International Law,” S. Rosenne, New York: Oceana, 1984.) These claims can only be fully secured with a basis in treaty rights.

Claims over deep seabed minerals can only be resolved in an international forum such as the International Seabed Authority (“ISA”), headquartered in Jamaica. The U.S. and other companies have begun to show interest in recovering these minerals—perhaps the last frontier on earth. But, the U.S., once again, has no offi cial voice at the ISA. Recently, the ISA approved four applications for exploratory contracts. The counties involved are China, Russia, Nauru, and Tonga.

Finally, the current Obama Administration plans to develop coastal and marine spatial plans for the waters and resources of the EEZ can also be enhanced with the adoption of the Convention since any resulting claims to new resources of the EEZ are only based in customary international law as opposed to treaty rights.

While the Bush and Obama Administrations have both supported U.S. ratifi cation of the treaty, and the last vote in the Senate Foreign Relations Committee was 17-4 in support of ratifi cation, there continues to be a strong vocal minority opposed to the Convention. This opposition may well impede Senator Kerry’s plans to get 67 votes for the Convention if and when the treaty goes to the Senate Floor.

Opposition to the Law of the Sea treaty is refl ected in the views of the Heritage Foundation and other conservative organizations. (See “U.N. sea treaty still a bad deal for U.S.”, Kim R. Holmes, Ph.D, pub. July 14, 2011, on the website of the Heritage Foundation at www.heritage.org.) Their principal objection is that the U.S. will lose rights, including sovereign claims to OCS resources, if it joins the Treaty. Other conservatives are simply opposed to the U.S. joining any new international organizations.

These fears are largely refuted in a book produced by a coalition of industry and environmental groups, entitled, “Law of the Sea Briefi ng Book,” and published at www.globalsolutions.org. The book takes each “myth” offered by the treaty’s opponents and refutes it. For example, the publication explains how the treaty actually increases U.S. sovereignty over resources of a 12-mile territorial sea, a 200-mile EEZ, and offshore resources, including minerals, to the outer edge of the continental margin, which extends up to 600 miles off Alaska. The book also refutes the claim that customary international law is an adequate basis for securing navigational rights: “The Convention provides clear legal rules in a written treaty, as opposed to reliance on customary international law, which is too easily challenged by unilateral claims of other countries and changed by the practice of countries over time.” (Briefi ng Book at 15.)

At the end of the day, whether the U.S. fi nally ratifi es the Law of the Sea Convention is a matter of political will, the efforts of Senators Kerry and Murkowski to persuade their respective caucuses of its benefi ts, and, ultimately, the availability of adequate Floor time given other pressing matters on the U.S. Senate calendar.