John Bellinger on UNCLOS and Arctic

Thanks to LOS News we are happy to transmit the following article by former State Department Legal Adviser John Bellinger that appeared on the Foreign Policy magazine website:

Arctic treasure

Posted By John B. Bellinger III   Thursday, May 19, 2011 - 11:24 AM

The following is a guest post by John B. Bellinger III, a partner at Arnold & Porter LLP and an adjunct senior fellow in international and national security law at the Council on Foreign Relations. John served as legal advisor for the Department of State from 2005 to 2009 and legal advisor to the National Security Council from 2001 to 2005. --Peter Feaver

Last Saturday, with U.S. gas prices at record highs, President Obama announced the administration's plans to boost domestic oil and gas production by expanding drilling and exploration in U.S. coastal waters, including in the Gulf of Mexico and off of Alaska. But the president missed an important opportunity to endorse an international agreement that would codify U.S. sovereign rights to vast additional oil and gas deposits under the Arctic Ocean off of Alaska: the Law of the Sea Convention. The omission was especially puzzling after Secretary of State Hillary Clinton, while participating in a summit of the eight Arctic Council countries held two days previously in Nuuk, Greenland, declared U.S. ratification of the treaty "way overdue." The president should capitalize on calls by congressional Republicans and the oil and gas industry to increase domestic oil and gas production by urging the Senate to ratify the convention this year.

The Law of the Sea Convention was negotiated in 1982 to provide a comprehensive legal framework to govern international activities in, over, and under the world's oceans. Today, 160countries are parties. The treaty guarantees all countries the right to freedom of navigation through and over the territorial seas of coastal states. With the largest fleet in the world, the U.S. Navy -- together with our Air Force, Army, Marines, and Coast Guard -- have long urged the Senate to approve the convention in order to codify their critical navigational rights, which are often challenged by other countries.

The treaty also gives coastal states sovereign rights to the fish and living marine resources in the ocean and oil, gas, and minerals under the seas within 200 miles of their coasts. And it gives coastal states additional rights to the oil, gas, and minerals on their continental shelves, but only if they prove to an international commission established by the convention that these geologic shelves extend more than 200 miles from their coasts.

The "extended continental shelf" of the United States extends more than 600 miles into the Arctic Ocean off the coast of Alaska, covering an area twice the size of California. The U.S. Geological Survey estimates that this area contains nearly a hundred billion barrels of oil and trillions of cubic feet of natural gas, as well as extensive deposits of valuable minerals.

The four other countries bordering the Arctic Ocean -- Russia, Canada, Norway, and Denmark -- have already enriched themselves and their people by tapping into their coastal oil and gas deposits and are staking claims to vast additional resources on their extended continental shelves in the Arctic. Norway's oil fund -- derived from revenues from oil and gas production in the North Sea -- is already worth $500 billion.

While these countries laugh all the way to the oil and gas bank, the U.S. sits on the sidelines unable to claim the resources on its extended continental shelf in the Arctic because it is not a party to the Law of the Sea treaty. U.S. oil and gas companies simply will not invest in these areas unless the U.S. has clear legal title. Unfortunately, a handful of Republican senators have blocked U.S. ratification of the treaty based on myths and misperceptions about the treaty. Even where their concerns may have some merit, they are heavily outweighed by the substantial national security and economic benefits to the American people of joining the treaty and the high costs of not joining.

Although the Law of the Sea treaty is complex, many Republicans who have considered the treaty carefully have endorsed it. The Bush administration -- which was rarely accused of overabundant enthusiasm about international law and institutions -- concluded after a lengthy internal review that the treaty is vital to U.S. economic and national security and urged the Senate to approve it. Even Sarah Palin, when she was governor of Alaska, strongly supported Senate approval, arguing that although "ratification of the convention has been thwarted by a small group of senators who are concerned about the perceived loss of U.S. sovereignty … I believe quite the contrary is true."

President Obama's apparent reluctance to push for Senate approval of the convention is understandable in light of competing legislative priorities and the uphill battle his administration experienced securing Senate approval of the New START treaty last December. But the president should seize the opportunity presented by Republican support for increased domestic oil and gas production to urge the Senate to approve the treaty.

Republican senators, industry groups, and corporations who quietly support the convention also need to play a more active role in championing it. They should rebut the myths and vigorously explain the substantial benefits of the treaty to undecided or skeptical senators, rather than leaving the work solely to the executive branch. And they should let the White House know they are prepared to support it.

Of all the treaties currently pending before the Senate, the Law of the Sea Convention offers the most extensive economic and national security advantages to the American people. There is still time on the Senate calendar this year to consider and approve it. President Obama should make it his administration's top treaty priority, and Senate Republicans should support its passage.