Is the United States Ready to Approve the Law of the Sea Treaty?

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Introduction

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.

What are the treaty’s origins?

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.

What does the Law of the Sea Treaty cover?

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:

• Territorial Limitations and Navigation Rights.The treaty establishes a twelve-mile territorial sea limit from shorelines that allows foreign ships to pass inside freely with a right of “innocent passage” unless they carry out hostile behavior—i.e. spying, unwarranted fishing, or polluting—as outlined by the treaty. Later reforms of the treaty provide that nations may temporarily suspend innocent-passage rights within their territorial jurisdiction in the interest of national security. The treaty also provides a mandatory system for resolving conflicts over navigational rights. Disputing parties are offered a number of options for settling a conflict including the International Court of Justice, a tribunal in Hamburg established for the Law of the Sea, and a special tribunal for settling disputes about fisheries and protection of the marine environment.
• Exclusive Economic Zones. The treaty establishes exclusive economic zones (EEZs) that grant coastal nations the right to manage all resources found in the waters and on continental shelves up to two hundred nautical miles from shore. In addition to exclusive rights, the EEZ provision provides that states observe their responsibilities to reduce pollution and promote scientific research. While the zones permit cultivation of continental shelves, the deep seabed remains out of a coastal nation’s jurisdiction under the convention.
• Continental shelves. The treaty establishes the right of a state to harvest mineral material in the subsoil of its continental shelf, designated as "the areaof underwater continental land mass lying immediately adjacent to the shoreline and generally extending out for a distance that can be as little as two and as much as six hundred miles wide." Coastal states that wish to extend the outer limits of their continental shelves beyond two hundred miles are required to undergo the evaluation of the Commission on the Limits of the Continental Shelf (CLCS), a UN body that regulates and makes recommendations in accordance with Article 76(8). The Russian Federation first submitted proposals regarding the extension of the outer limits of the Russian continental shelves in the Arctic and Pacific Oceans in 2001. The proposals are still under evaluation by the commission, although Russia continues to send scientific expeditions to the North Pole to gather evidence in support of its petitions. Responsibility for regulating the ocean’s depths lies with a body called the International Seabed Authority (ISA).
• Protection of marine life. Part of the EEZ provision in the treaty requires that coastal states cultivate fish stocks while remaining mindful of overfishing. Ninety percent of the world’s fisheries lie within EEZs and therefore fall under the care and responsibility of coastal nations. The convention also places the burden of preventing pollution on coastal states, including preventing oil spills, ocean dumping, and runoff that produces pollutants like sewage and radioactive waste.

What is the International Seabed Authority?

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.

What are the main U.S. objections to the treaty?

• It may endanger U.S. sovereignty. The ISA’s membership consists of a disproportionate number of developing countries, raising fears the United States will hold no stake in the organization’s decision-making process. As former U.S. Ambassador to the UN Jeanne Kirkpatrick told the U.S. Senate in April 2004: “The formula for representation guaranteed that the industrialized ‘producer’ countries would be a permanent minority (PDF).” Frank J. Gaffney Jr. of the Center for Security Policy, writing in National Review, argues that granting this unprecedented authority to an international body like the ISA would stand as the “most egregious transfer of American sovereignty, wealth and power to the UN.”
• It may harm U.S. economic interests. Opponents argue that for a company to win mining rights to mineral resources, a fee of over one million dollars is required, in addition to other requirements and restrictions, including the responsibility to provide a “bonus site” for the ISA to carry out its own mining efforts. Gaffney argues that taxes the ISA raises on companies essentially allow the body to implement “what amount to taxes on commercial activities”—an act that he argues would deter U.S. maritime trade and industry.
• It would weaken U.S. national security. In a recent Washington Post piece, former assistant attorney general and Harvard Law professor Jack Goldsmith and George Mason University law professor Jeremy Rabkin raise concerns the treaty might hinder the U.S. Navy’s ability to make seizures of weapons-related material on the high seas. “In every case,” they argue, “a majority of non-American judges would decide whether the U.S. Navy can seize a ship that it believes is carrying terrorist operatives or supplies for terrorists.” Opponents say it would undermine counterterrorism efforts like the Proliferation Security Initiative.

How do proponents of the treaty respond?

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.

What are the chances of the treaty winning U.S. ratification?

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.”

What explains the White House’s support for the treaty?

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.