Kelly Ayotte

Steve had the announcement here: Senators Ayotte and Portman will not vote for The Law of the Sea Treaty.

Here is the letter that Senators Ayotte and Portman sent:

July 16, 2012

The Honorable Harry Reid
Majority Leader
United States Senate
Washington, DC 20510

Dear Mr. Leader:

Recently, there has been renewed interest in the United Nations Convention on the Law of the Sea, a treaty completed in 1982 and modified in 1994.  After careful consideration, we have concluded that on balance this treaty is not in the national interest of the United States.   As a result, we would oppose the treaty if it were called up for a vote.

Proponents of the Law of the Sea treaty aspire to admirable goals, including codifying the U.S. Navy’s navigational rights and defining American economic interests in valuable offshore resources.  But the treaty’s terms reach well beyond those good intentions.  This agreement is striking in both the breadth of activities it regulates and the ambiguity of obligations it creates.  Its 320 articles and over 200 pages establish a complex regulatory regime that applies to virtually any commercial or governmental activity related to the oceans — from seaborne shipping, to drug and weapon interdiction, to operating a manufacturing plant near a coastal waterway.[1]

The terms of the treaty are not only expansive, but often ill-defined.  Article 194, for example, broadly requires nations to “take … all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source, using for this purpose the best practicable means at their disposal and in accordance with their capabilities.”  Article 207 decrees that “[s]tates shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment from land-based sources … taking into account internationally agreed rules.”  Article 293 empowers tribunals to enforce not only the treaty provisions but also “other rules of international law not incompatible with [the treaty].”  Because the treaty authorizes international legislative and judicial bodies to give shape and substance to these and other open-ended commitments, the United States would be binding itself to yet-unknown requirements and liabilities.  That uncertainty alone is reason for caution.

The treaty’s breadth and ambiguity might be less troubling if there were adequate assurance that it will be enforced impartially and in a manner consistent with U.S. interests.  But that is not so.  The United States could block some but not all actions of the International Seabed Authority, a legislative body vested with significant power over more than half of the earth’s surface.[2]  Further, the treaty’s judicial bodies are empowered to issue binding judgments even over U.S. objections.  In some cases, the United States could elect to resolve disputes before a five-member arbitration tribunal, in which we would choose two arbitrators.  But the United States would have no hand in selecting the decisive, fifth arbitrator, unless it could agree with the opposing party.[3]  Other cases would be decided by the powerful International Tribunal, which is even less accountable to the United States.  Comprised of 21 foreign judges with no guaranteed U.S. seat, the tribunal can resolve any dispute concerning interpretation of the treaty.  It has compulsory jurisdiction over disputes concerning the seabed beyond national borders and power to grant preliminary injunctive relief whenever it deems necessary “to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment.”[4]

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