Does the Law of the Sea Treaty have a Chance of Passing the US Senate?

Next week, Secretary of State Clinton and Secretary of Defense Panetta will brief the Senate on the United Nations Convention on the Law of the Sea, otherwise known as UNCLOS. The treaty has been around for decades, and was originally signed by President Reagan, but never ratified by the Senate.

The treaty provides rules of the road for the high seas, maritime rights and seabeds.  The military supports the treaty because it offers clarity on sea-lanes; the extractive industry supports it because it provides a mechanism to make legal claims to minerals below seabeds; environmental groups like it because it provides guidelines to extracting those minerals in an ecologially sensitive way; peace groups support it because it is one part of the liberal internationalist project. Even George W. Bush, who no one would confuse as a liberal internationalist, even supported it.

Outside a few blocks of Washington, DC UNCLOS is totally uncontroversial. But inside the US Capitol building, the treaty has languished. Ratifying a treaty requires a two thirds vote of the US Senate, so if everyone is present that requires 67 votes in favor.

There is a not-insignificant minority of US Senators who have ideological hangups with the very idea of international law and treaties.  Under no circumstance would they vote for a treaty or something that can be construed as international law.

The size of this minority will determine whether or not the treaty can be ratified.

So how many senators are probably intrinsically opposed to UNCLOS? Treaty votes are somewhat rare, so it is hard to get a handle on where Senators stand on treaties in general–and UNCLOS in particular. However, in 2009 there was one vote that could offer some insights into Senators’ ideological predilections on questions on international law.

Shortly after becoming Secretary of State, Hilary Clinton nominated Harold Koh to serve as her legal advisor. This is a top position which requires senate confirmation and he was filibustered.  No one questioned Koh’s abilities: he is an internationally renowned legal scholar, former Dean of Yale Law School, and held top positions in the State Department during the Clinton administration. Still, some Republicans blocked his nomination over Koh’s record of support for the idea that foreign and international law can help inform American jurisprudence. In other words, they tried to block his nomination because he believed in the validity and applicability of international law.

Here was the vote breakdown on his nomination, which was filibustered so 60 votes were required to pass. I’ve crossed out the names of Senators who have been replaced since this 2009 vote by someone who might vote differently.

YEAs —62
Akaka (D-HI)
Baucus (D-MT)
Bayh (D-IN)
Begich (D-AK)
Bennet (D-CO)
Bingaman (D-NM)
Boxer (D-CA)
Brown (D-OH)
Burris (D-IL)
Cantwell (D-WA)
Cardin (D-MD)
Carper (D-DE)
Casey (D-PA)
Collins (R-ME)
Conrad (D-ND)
Dodd (D-CT)
Dorgan (D-ND)
Durbin (D-IL)
Feingold (D-WI)
Feinstein (D-CA)
Gillibrand (D-NY)
Hagan (D-NC)
Harkin (D-IA)
Inouye (D-HI)
Johnson (D-SD)
Kaufman (D-DE)
Kerry (D-MA)
Klobuchar (D-MN)
Kohl (D-WI)
Landrieu (D-LA)
Lautenberg (D-NJ)
Leahy (D-VT)
Levin (D-MI)
Lieberman (ID-CT)
Lincoln (D-AR)
Lugar (R-IN)
Martinez (R-FL)
McCaskill (D-MO)
Menendez (D-NJ)
Merkley (D-OR)
Mikulski (D-MD)
Murray (D-WA)
Nelson (D-FL)
Nelson (D-NE)
Pryor (D-AR)
Reed (D-RI)
Reid (D-NV)
Rockefeller (D-WV)
Sanders (I-VT)
Schumer (D-NY)
Shaheen (D-NH)
Snowe (R-ME)
Specter (D-PA)
Stabenow (D-MI)
Tester (D-MT)
Udall (D-CO)
Udall (D-NM)
Voinovich (R-OH)
Warner (D-VA)
Webb (D-VA)
Whitehouse (D-RI)
Wyden (D-OR)
NAYs —35
Alexander (R-TN)
Barrasso (R-WY)
Bennett (R-UT)
Bond (R-MO)
Brownback (R-KS)
Bunning (R-KY)
Burr (R-NC)
Chambliss (R-GA)
Coburn (R-OK)
Cochran (R-MS)
Corker (R-TN)
Cornyn (R-TX)
Crapo (R-ID)
DeMint (R-SC)
Ensign (R-NV)
Enzi (R-WY)
Graham (R-SC)
Grassley (R-IA)
Gregg (R-NH)
Hatch (R-UT)
Hutchison (R-TX)
Inhofe (R-OK)
Isakson (R-GA)
Johanns (R-NE)
Kyl (R-AZ)
McCain (R-AZ)
McConnell (R-KY)
Murkowski (R-AK)
Risch (R-ID)
Roberts (R-KS)
Sessions (R-AL)
Shelby (R-AL)
Thune (R-SD)
Vitter (R-LA)
Wicker (R-MS)


New members of congress include: Senator Brown from Massachussetts who is a toss-up. Senator Voinovich, a GOP “yes” vote, was replaced by Senator Rob Portman a Republican who is probably a toss-up. Senator Spector was replaced by Senator Pat Toomey, who is almost certainly a “no” vote.  Senator Feingold, a “yes” vote, was replaced by Ron Johnson, a probable “no” vote.  Senator Lincoln, a yes vote, was replaced by Senator John Boozman, a likely “no” vote. Judd Gregg, a “no” vote was replaced by Kelly Ayotte, a probable “no” vote, so that’s a wash. And Sen. Dodd was replaced by Sen. Blumenthal, also a wash.

So, my back-of-the-envelope calculations suggest that the “yes” votes are down to 59, meaning the pro-treaty side needs to somehow find 8 more votes from the “nays” or toss ups.  In a tense election season in which less than moderate republicans (like Dick Lugar) are being toppled by their Tea Party opposition, I would imagine that treaty ratification will be heavy lift. On the other hand, the fact that the White House and Senate Democrats are making a push for UNCLOS ratification suggests that maybe they think they have a few votes in the bag.

In any case, this is a very important vote for those of us who follow UN issues.  UNCLOS is the lowest of low-hanging fruit.  If a totally uncontroversial treaty like Law of the Sea can’t pass the Senate,  there’s little chance that other treaties in the pipeline (like the Convention on the Rights of the Child or Convention on the Elimination of all Forms Discrimination Against Women) will ever be passed.