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Sullivan's flip-flopping on sea treaty weakens US power in the Arctic

  • Author: Dermot Cole
    | Opinion
  • Updated: September 28, 2016
  • Published August 20, 2015

U.S. Sen. Dan Sullivan should reverse his stand on the Law of the Sea treaty. For guidance, he need look no further than the reasonable positions taken during the second Bush administration by a guy named Dan Sullivan.

Sullivan has used his first half-year in the Senate to explain why the U.S. needs to show leadership in the Arctic, build icebreakers, respond to the Russians and take an active role in deciding the future of the region.

All well and good, but Sullivan's opposition to the Law of the Sea Convention hardly counts as leadership on Arctic policy. The treaty would bolster U.S. jurisdiction to an area twice the size of California and has enjoyed strong support from Alaskans for many years.

So far, 166 nations and the European Union have signed off on the treaty, which sets international standards for the oceans. Only 14 nations with beachfront property, including North Korea, Iran, Libya, Syria and Israel, are aligned with the U.S. in refusing to accept the document.

President Reagan opposed it early on because of provisions about seabed mining, but that language was removed in 1994. Over the decades, Democrats and Republicans have endorsed it, along with a wide variety of business, environmental and political groups.

For the United States, approval of the treaty rests with the Senate, where a vote has long been blocked by the most conservative elements in the Republican Party, mainly over claims the measure would reduce sovereignty in portions of the ocean more than 200 miles offshore. Alaska, which has 8 percent of the circumference of the Arctic, has much more to gain than lose from this treaty. It should not be part of the opposition.

In years to come, the Bering Strait could become a chokepoint, like the Straits of Hormuz or Malacca. The Law of the Sea serves as a framework for all commercial activity and provides an opportunity for the U.S. to shape important policies.

Alaska's senators, going back to the days of Ted Stevens and Frank Murkowski, have recognized this. Stevens spent many years monitoring negotiations as a member of the Senate Commerce Committee. In 2004, he told a Senate hearing how he had opposed the agreement early on, but it had been modified to protect American fishing and mining rights. "I and my state now support the ratification of this treaty," Stevens said.

Former Sen. Mark Begich called for its passage and Sen. Lisa Murkowski has been a consistent advocate. Russia can make territorial claims to the Arctic seabed because it has joined the treaty, while the U.S. cannot. She has said she has to "work Republican colleagues" to explain why failing to ratify puts our nation at a disadvantage in the Arctic. It's unfortunate Sullivan decided to join that group.

She could remind him he took an informed approach on this issue in the past while serving as an assistant secretary on economic matters in the second Bush administration under Condoleezza Rice. Rice endorsed the treaty, as did former Secretaries of State Henry Kissinger, George Shultz, Jim Baker and Colin Powell, all of whom served under Republican presidents.

"The U.S. currently has no input into international deliberations over rights to the Arctic, where rich energy and mineral resources are found more than 200 nautical miles from any country's shoreline," the five former secretaries wrote in 2012 in The Wall Street Journal. "We have been on the sidelines long enough. Now is the time to get on the field and lead."

On July 31, 2008, Sullivan offered a similar argument in congressional testimony on "Energy Issues in the Western Hemisphere." He said that tapping resources in the Arctic must include proper safeguards and that passage of the treaty was overdue.

"The United States is not a party to the Law of the Sea Convention. The other countries bordering the Arctic Ocean, which are all parties to the Convention, are busy maximizing the international recognition of their extended continental shelves beyond 200 nautical miles from their shores," Sullivan told a subcommittee of the House Committee on Foreign Affairs.

"As a party, the United States would be in the best position to maximize the legal certainty and international recognition surrounding its extended shelf. Furthermore, as President Bush has noted, joining the Convention ' ... will serve the national security interests of the United States ... [and] ... will secure U.S. sovereign rights over extensive marine areas, including the valuable natural resources they contain.' "

The previous October, Sullivan spoke at an Anchorage conference on global energy security in Anchorage at which he thanked Sen. Lisa Murkowski for promoting the treaty, one of the key steps in creating an Arctic policy.

"And of course, updating our Arctic policy will involve working closely with Congress on a variety of issues, including U.S. accession to the Law of the Sea Convention, which will help determine the limits of the continental shelves of the five countries bordering the Arctic Ocean and settle the boundaries between them. Sen. Murkowski has shown great leadership on this issue in Washington and the administration will continue to work with her and others to move the law of the sea towards ratification," Sullivan said on Oct. 15, 2007.

Sullivan said given the increased melting of Arctic ice, the world needs "safe, secure and reliable" guidelines to govern Arctic shipping. "The Arctic nations are represented here because we are all bound together on this planet we share, and together we must work to ensure its future. The issues calling for our action today must be solved by a global community working toward common global interests," he said eight years ago.

In 2009, when former Gov. Sarah Palin named Sullivan attorney general, she praised his advocacy of the Law of the Sea treaty and other issues important to Alaska. Sen. Lisa Murkowski said she had "personally worked with him on a number of these matters, including Law of the Sea and our country's new Arctic policy."

It was during the 2014 campaign for Senate that Sullivan changed his position on the treaty. One of his competitors, Fairbanks attorney Joe Miller, had attacked both Sullivan and Lt. Gov. Mead Treadwell for supporting what Miller claimed was a "naked power grab by our would-be global governors at the United Nations." Miller said the treaty would allow an international body to slap taxes on U.S. industry.

Earlier this year, after a speech to the Alaska Legislature, Anchorage Rep. Max Gruenberg asked Sullivan about the treaty. In contrast to his detailed answers of the past about what the treaty would mean to Arctic policy, he simply said: "So my position was because it has an increase in taxes, with regard to the U.N. placing taxes on American entities, I was opposed to it. And that's continuing to be my position."

When Sullivan served in the State Department, John B. Bellinger III, a legal adviser to the National Security Council, said the tax argument and other claims put forward as reasons for rejection were inaccurate, outdated and incomplete.

"The more outlandish arguments against the Convention include allegations that the Convention authorizes a 'UN Navy' or 'UN taxes,' that under the Convention the United Nations would control the world's oceans, that joining would hinder U.S. intelligence activities or forfeit U.S. 'sovereignty.' None of these claims are accurate, yet critics have somehow managed to present them as plausible," Bellinger said.

"The charge that the Convention robs the U.S. of 'sovereignty' is particularly perplexing because far from ceding U.S. sovereignty, the Convention in fact reflects an enormous transfer of sovereignty and resources to the United States. The Convention codifies the sovereignty and sovereign rights of the United States over extensive maritime territory and natural resources off its coasts. Our extended continental shelf is estimated to be the size of two Californias," Bellinger said.

In April, the head of the Coast Guard, Rear Adm. Paul Zukunft, testified at a hearing chaired by Sullivan that there are four priorities for the agency—safety at sea, environmental compliance, domain awareness and the recognition that an area twice the size of California remains outside U.S. jurisdiction without the treaty.

"And so that is now part of the global commons, and we do see other nations, namely China, doing scientific research in what would otherwise, if we were -- had ratified the Law of the Sea Convention -- that would be sovereign U.S. waters where we're seeing that activity," Zukunft said.

For these reasons and more, Sen. Sullivan is wrong on the treaty now, but he had it right in 2008. Senate approval would put the nation "in the best position to maximize the legal certainty and international recognition" of expanded U.S. jurisdiction off the coast of Alaska.

The views expressed here are the writer's own and are not necessarily endorsed by Alaska Dispatch News, which welcomes a broad range of viewpoints. To submit a piece for consideration, email commentary(at)alaskadispatch.com.

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