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WASHINGTON � The Law of the Sea Treaty, which established a sweeping legal regime for activities on and under the world’s oceans, has been a fixture of international law for nearly three decades. But why, despite broad political, military, industry and environmental support in the United States, has the Senate never ratified it? Some international law experts say it’s unlikely any other treaty has been so widely supported and yet failed to come to a vote in the Senate for so long a period of time. Today, 153 nation states have acceded to the treaty, including Russia, China, every European Union nation and virtually all U.S. allies in the North Atlantic Treaty Organization and the Organization for Economic Co-operation and Development. President Bush recently urged the Senate to dust it off and push it through by the end of this congressional session. Is the small, but tenacious, opposition rooted in traditional conservative mistrust of international legal bodies, such as the International Court of Justice and the International Criminal Court? “I think that can be part of it,” said treaty opponent David Ridenour, vice president of the National Center for Public Policy Research. “Certainly there are provisions of the treaty that give people reasons to be distrustful.” But that distrust is based on misinterpretations of treaty specifics and poor lawyering, insisted longtime treaty advocate John Norton Moore of the University of Virginia School of Law, director of its Center for National Security and Oceans Law and Policy. Some treaty opponents are “fine people,” he added, but “my own view of the level of opposition is it is a neo-know-nothing movement. This is one of the clearest issues in the national interest that I’ve ever seen.” The treaty, in which the United States played a major negotiating role, emerged from the Third United Nations Law of the Sea Conference, and was signed in Jamaica in 1982. It is unique among major lawmaking treaties, according to international law scholar Bernard Oxman of the University of Miami School of Law, in establishing a comprehensive dispute settlement regime that includes, as a central facet, an international court known as the International Tribunal on the Law of the Sea (ITLOS). There was a need for a new court, according to Oxman and other scholars, because some new, potentially controversial legal concepts came out of the Law of the Sea Conference. There also was some dissatisfaction with the only existing international court at the time, the International Court of Justice, and there was a need for a specialized court to deal with disputes and issues arising from deep seabed mining � a potentially lucrative source of mineral resources. The treaty gives states the option of choosing among ITLOS, the International Court of Justice or arbitral tribunals to settle their disputes. The United States is on record as rejecting the two courts and as choosing arbitration once it is a party to the treaty. States are the main parties before the court or the arbitral tribunals, unless a state authorizes a private party, for example an oil company whose tanker has been seized by a foreign state, to proceed on its own behalf. Private parties have direct access to dispute resolution only in the deep sea-bed mining portion of the treaty. Mining companies sought their own right to sue and arbitrate, which was considered radical at the time, according to Oxman, but now is quite common, particularly under investment treaties. Despite the United States’ election of arbitration, Ridenour and other treaty opponents, such as Jeremy Rabkin of George Mason University School of Law, argue the United States could end up before the court when provisional measures � similar to temporary injunctions � are sought by a complaining state. The treaty provides that the court would automatically adjudicate such disputes when states cannot reach agreement on the method of adjudication or arbitration “within two weeks from the date of the request for provisional measures.” “You can imagine many circumstances in which the U.S. would disagree with Syria or Iran and where neither side agrees to arbitrators,” said Ridenour. “The tribunal is not packed with a lot of U.S. supporters. One of the problems with these international tribunals is often you have judges from countries that do not have a long tradition of representative democracy.” But that is the “extreme setting” that treaty opponents magnify into a major, but baseless, problem, Moore said. “All of the general dispute mechanisms are set up specifically for arbitration, like the normal commercial arbitration favored by American industry around the world,” he said. At the end of the day, if parties can’t agree on the arbitration process, he and others said, it is not unusual to have an appointing authority step in. And, if the United States were a treaty member, said Moore, it could have a judge on ITLOS and be an influential voice in the development of ocean laws. Opponents also say treaty provisions on protecting the marine environment could become a “backdoor for environmental lawsuits” brought in U.S. courts on issues such as global warming. But supporters counter that U.S. courts are familiar with interpreting treaty obligations and the government wants this treaty because it offers stable rules of law and avenues for stopping environmental damage. International law litigator Jeffrey Pryce of Washington’s Steptoe & Johnson LLP, whose clients include companies operating in coastal waters and private investors, said: “This has been around so long that people have developed ‘work-arounds,’ ways to work within the current legal regime. The people most affected would be those involved in deep sea mining and nobody’s holding their breath” for Senate ratification. The arguments against the treaty, he added, are typical of treaty-based dispute resolution, which is active today in trade agreements and investment treaties. A treaty is an exercise of sovereignty that puts limits on that sovereignty, Pryce said. “States as sovereigns agree to certain limitations or to mechanisms for resolving disputes over whether they have acted consistently with their international obligations.” The United States has paid “a very large cost” for not ratifying the treaty, said Moore. Once the leader in ocean law matters, he said, it has since 1984 been “just left out,” and that is devastating to national security, trade transport and mineral resource development.

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