Opponents of the controversial Convention on the Law of the Sea treaty say Wednesday’s hijacking of a cargo vessel off the coast of Somalia has laid bare a major flaw in the treaty’s language that cripples its effectiveness against pirates.
According to the United Nations, over 110 pirate attacks have occurred off the horn of Africa since 2007.
The Law of the Sea treaty, which has been approved by over 150 countries but not by the United States, specifies the jurisdictions that nations have over their territorial waters, including mineral rights. It also states that all countries have the right to seize and capture pirates.
Experts say however that what the convention clearly did not envision were failed nations such as Somalia, which are unable to police their own territorial waters.
The underlying assumption of the treaty was that countries would be ready, willing, and able to police their own waters. In the case of Somalia, whose surrounding waters have seen a 200 percent increase in piracy in the past two years, that clearly is not the case.
Somalia’s neighbor Kenya has stepped in try to fill the void. It has signed memoranda of understanding with the United States and European countries, agreeing to help prosecute any pirates captured in nearby waters.
Those agreements have drawn fire from international human rights, groups, however, who say Kenya’s judicial system cannot be trusted to deliver justice.
Kenya’s Foreign Minister, Moses Wetangula, told VOA News.com that international indifference over the fate of Somalia shoulders some of the blame.
“Partly, this menace is born out of our collective failure to resolve the problems of Somalia,” he told the VOA. “It is the lawlessness of Somalia that has given the breeding ground for what is now an unprecedented threat to trade activities, to cruise ships, to many things.”
Not only does the treaty fail to adequately address piracy, critics say, but it could be used by the United Nations to generate revenue, creating a de facto global tax. Opponents also warn it would essentially cede elements of U.S. sovereignty to international governing bodies.
In testimony before Congress, Dr. Frank Gaffney of the Center for Security Policy testified that, “For the first time in history, we are being asked to submit to a supranational agency that has all the trappings of a world government – an executive, a legislative assembly, a court, the ability to raise revenues and, in due course, perhaps the means to enforce its decisions."
Several U.S. Navy and Coast Guard officers have told Congress however that they favor U.S. ratification, but Gaffney remains unconvinced.
On Thursday, Gaffney told Newsmax, “The Somali piracy debacle makes one basic point very clear: There is no substitute for the power of the U.S. Navy.
“When it comes to protecting the transit of the Indian Ocean unmolested by pirates, the opportunity to collect intelligence in the South China Sea or other vital American interests at sea and ashore, international law, treaties, tribunals and bureaucrats – even multilateral flotillas – are not reliable alternatives to the sovereign and world-wide power-projection capabilities of our naval forces. It is folly and dangerous especially for the Navy’s own lawyers to argue otherwise.”
In 2007, four former Coast Guard Commandants wrote then-Sen. Joseph Biden: “It is high time the Unite States got off the sidelines and joined the Law of the Sea Convention. Joining would not only increase the ability of the Coast Guard to carry out its multiple maritime missions, but would enhance the ability of the United States to guarantee its national security and economic rights.”
Fox News has reported a move is afoot to bring the treaty up for a vote in the Senate. Among its supporters are Secretary of State Hillary Clinton and former Democratic presidential candidate Sen. John Kerry, chairman of the Senate Foreign Relations Committee.
In a January confirmation hearing, Kerry remarked, "We are now laying the groundwork for and expect to try to take up the Law of the Sea Treaty. So that will be one of the priorities of the committee, and the key here is just timing -- how we proceed."
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