home > about cfr > leadership and staff > maggie goodlander > Is the United States Ready to Approve the Law of the Sea Treaty?
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July 19, 2007
The Bush administration is urging the U.S. Senate to ratify the Convention of the Law of the Sea. The treaty provides universal legal standards for shipping, fishing, and mining and codifies customary navigation and transit principles already followed by most states. Proponents of the convention, including President Bush, say it will enhance U.S. security on the high seas. But a number of conservative lawmakers remain concerned the treaty may harm U.S. industry and hinder counterterrorism efforts.
Historically, nations have had claims to a very narrow belt of three miles from their coastlines, leaving the rest of the high seas generally without legal checks. By 1967, international rivalries, technological advances, and new maritime uses pushed states to clarify sea boundaries and use of resources with stricter legal parameters. The 1982 Law of the Seas Convention was the result of these efforts and won ratification from more than 150 nations. President Reagan refused to endorse the treaty because of its provisions related to seabed mining, most of which were amended in 1994.
As John Temple Swing wrote in a 1976 Foreign Affairs article, the treaty signifies a “constitution for the sea” that governs activities on, over, and beneath the ocean’s surface. Among the main legal areas it codifies:
The Law of the Sea treaty created the International Seabed Authority, or ISA, to administer mining rights and seabed resources in the areas outside exclusive economic zones. The Law of the Sea Treaty operates under the “Common Heritage of Mankind” principle, which provides that maritime resources cannot be claimed or controlled by any one individual or nation. While the treaty offers individual nations fixed areas of national jurisdiction, the rest of the ocean is left under the control of the ISA. The organization is based in Kingston, Jamaica, where an eleven-member chamber deals with any disputes that may arise over seabed activities within the ISA’s jurisdiction.
Ken Adelman, who opposed the treaty during his years in the Reagan administration as the president’s special envoy, has changed his views. Writing in the Wall Street Journal, he dismisses criticisms it would undermine U.S. industry or American sovereignty because “there's no bar to private firms mining the minerals. No mandatory technology transfer. No decision-making without U.S. participation.” He also points out Washington is guaranteed veto power over the treaty’s decision-making body. Military officials share Adelman’s views. The former chairman of the Joint Chiefs of Staff, Gen. Richard Myers, has repeatedly told Congress of the importance of the treaty to national security (PDF).
The treaty would now provide U.S. ships a right of passage through international straits (i.e. Indonesia). Such provisions are “the crown jewels of the treaty,” write Vern Clark, former chief of naval operations, and Thomas R. Pickering, former U.S. ambassador to the UN, in the New York Times, and did not exist before 1982. “Our security and economic interests are tied directly to these rights,” they add.
Daniel Drezner, who teaches international politics at Tufts University’s Fletcher School of Law and Diplomacy, predicts most Republican senators will oppose the treaty but it may still receive enough support to be ratified. Both the chairman and ranking member of the Senate Foreign Relations committee support the treaty. Still, Don Kraus of Citizens for Global Solutions, a U.S.-based advocacy group, says “ratification is not a sure thing,” adding that “if the Senate doesn’t act on ratification before the summer recess [in August], it may miss the golden opportunity to address the increasing fragility of the oceans.”
Some experts are surprised by the Bush administration’s backing of the Law of the Sea Treaty, given the president’s previous lack of support for international covenants like the International Criminal Court. President Bush has said that by ratifying the treaty, it will “give the United States a seat at the table when the rights that are vital to our interests are debated and interpreted.” Deputy Secretary of State John D. Negroponte and Deputy Secretary of Defense Gordon England, writing in the Washington Times, also say supporting the convention would “powerfully and publicly” demonstrate to the international community the United States’ commitment to the rule of law in foreign affairs. Finally, administration officials argue that the treaty will reinforce, not diminish, nonproliferation efforts like the Proliferation Security Initiative.
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