US conservatives are reviewing their stance on marine law because of the potential of vast resources under the sea, writes Tony Kinsella.
IT'S PROBABLY just as well that senator Jesse Helms of North Carolina was unaware of Canadian coastguard Capt Lise Marchand and her exploits. The 87-year-old former senator died, appropriately enough, in the early hours of the US national holiday, the fourth of July 2008. On October 15th last year the Canadian coastguard icebreaker Amundsen, under the command of Capt Marchand, rendezvoued with her sister ship, the Louis St Laurent.
This was no routine encounter, they established that the North West Passage between the Atlantic and the Pacific was now navigable, and that the Canadians were laying claiming to it. This passage, which cuts over 6,500km (4,038 miles) off the voyage between European and Asian ports, is now navigable for ships built to handle icy waters.
Is it an international passage, like the English Channel, or does it lie exclusively in Canadian territorial waters? The answers to these questions, and thus to Canada's ability to police this new maritime highway, will be found within the procedures of the UN Convention on the Law of the Sea (Unclos).
As chairman of the Senate Foreign Relations Committee 1994-2001, Jesse Helms splenetically opposed US ratification of Unclos. In 2005 the Jesse Helms Center Foundation attacked it as "just a socialist effort". The United States has still to ratify the convention.
Earlier "freedom of the seas" practices allocated every coastal nation exclusive territorial waters up to three nautical miles off its coast, based on the maximum range of cannon in the 17th century when the principles were first fixed.
Seas beyond the three-mile limit belonged to everybody, and warships of any nation were free to act against threats such as piracy under the catch-all legal principle of Jus Gentium. Disputes arose as to whether the three-mile limit slavishly followed the coastline with its bays and estuaries, or a straight line drawn from promontories.
One weakness of this approach was that policing of the seas depended on the possession of naval forces, hence the Jesse Helms preference. The second weakness was that these 17th century practices were, understandably, silent about seabed resources. Unclos was agreed in 1982 after years of work.
The convention, with 60 ratifications, entered into force in 1994. One hundred and fifty-six countries have now ratified the convention, as Ireland did in 1996. It breaks the seas into seven zones. These include territorial waters out to 12 miles, a contiguous zone of another 12 miles, and a 200-mile Exclusive Economic Zone (EEZ), which can be extended by up to another 150 miles.
Unclos provides for a range of arbitration procedures and an International Seabed Authority to rule on claims between signatory states as to who owns what on which seabed. It was this "clear assault on America's sovereign rights" that lay at the root of Senator Helms's hostility.
Jesse Helms was one of the prime architects of Ronald Reagan's conservative sweep in 1980. The sweep's policies, blending big business, conservative Christianity, dislike of government bodies and actions other than military ones, racist undertones, and an explicit belief in the right of the USA to run the world as it sees fit, have destabilised the US economy, seriously damaged the country's military power, and threatened our fledgling international bodies. Senator Helms began his public life as a journalist in North Carolina in 1945. He moved on to work for the state's Bankers Association before becoming a syndicated conservative commentator in the 1960s.
He criticised the civil rights movement as being communist-inspired noting: "Bus drivers are being murdered, shopkeepers are being shot and robbed, newspapermen are being assaulted, stores are being burned, women are being raped. It is, in all, a splendid demonstration of non-violence."
In 1983 Helms would oppose the creation of a national holiday in honour of Martin Luther King.
His sharp political acumen understood that once a legal principle was accepted, it became pointless to argue against it. Civil rights legislation, he warned his readers, meant that "Our only choice is between integrated public schools and free-choice private schools." The only method of preserving overwhelmingly white schools in North Carolina was to make them fee paying.
Senator Helms also shared a particular belief of the US Christian right that the United States has a divine mission to guide the world. The pervasiveness of this view amongst scripture-citing fundamentalists is all the more strange given that neither the Old nor the New Testaments mention the Americas, much less the USA. Mammon has undone this Unclos resistance. Most recent oil finds, like the Brazilian Tupi and Carioca fields (40 billion barrels) lie deep - 5,000m (16,400ft) under a seabed 2,000 metres below the surface.
Developing such fields, including Arctic ones, requires massive investment. Stena Offshore has just ordered an Arctic drilling vessel for a record $942 million (€594 million). Clear legal title to any finds is one minimum prerequisite for such investments.
This partly explains the growing pressure on the US Senate to ratify Unclos, including a call from President Bush.
Senator Helms viewed the Kyoto Protocol as a Trojan horse designed to slip through the defences of US sovereignty under cover of global warming, a challenge whose very existence he denied.
As the Arctic ice cap melts, and Unclos arbitration provides the only answer to competing Canadian, Danish, Norwegian, Russian and US claims to seabed resources in that ocean, two of his "victories" are being undone.
Jesse Helms, according to his beliefs, should be "up there" somewhere gazing down upon us all.
If he is, he has cause for reflection on the downsides of eternal life.