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Law of the Sea (2-27-04)

The U.N. Convention on the Law of the Sea, which was open for signature between December 1982 and December 1984, established a legal regime governing activities on, over, and under the world’s oceans. The Convention resulted from the third U.N. Conference on the Law of the Sea, which met for a total of 93 weeks between December 1973 and December 1982. While supporting most of the treaty, the United States and other industrialized countries, did not sign or would not ratify the Convention without important changes to the parts that dealt with deep seabed resources beyond national jurisdiction. Subsequently, the United States led a successful effort to revise the deep sea mining provisions and signed the convention in 1994.

On October 7, 1994, President Bill Clinton transmitted to the Senate the 1982 U.N. Convention on the Law of the Sea and 1994 Agreement relating to the Implementation of Part XI of the U.N. Convention (Treaty Document 103-39). The package was referred to the Senate Committee on Foreign Relations for their consideration with hopes of quick ratification on the Senate floor. But Sen. Jesse Helms (R-NC), then chair of the Foreign Relations Committee, had concerns about this treaty and declined to hold any hearings, leaving the issue dormant until 2002.

On April 8, 2002, in remarks at a U.N. meeting, U.S. Ambassador Mary Beth West confirmed President George W. Bush's support for U.S. accession to the Convention, noting “we intend to work with the U.S. Senate to move forward on becoming a party.” (USUN Press Release #49). Further, the current Administration has pushed for U.S. acession to the Convention because it meets “U.S. national security, economic, and environmental interests."

On February 25th the Senate Foreign Relations Committee voted unanimously to adopt the U.N. Convention on the Law of the Sea. The treaty provides a comprehensive framework for ocean management, which nearly 140 countries have ratified. The United States has hesitated on ratification due to concerns that the treaty would limit opportunities to exploit offshore natural resources and that developing nations would be given the same influence as developed countries. The treaty will be open to amendment later this year and if the United States is not party to it by then it would be hard to protect the convention rights that the U.S. fought hard to achieve. The treaty will now move to the Senate floor, where it will need a two-thirds approval to pass. (2/27/04)

The Senate Foreign Relations Committee held a hearing on the UN Convention on the Law of the Sea on October 14th. Chaired by Senator Richard Lugar (R-IN), the Committee sought to continue the work that began so long ago to produce a comprehensive international framework governing the use of the world's oceans. In his opening statement, Chairman Lugar said, "The Law of the Sea Convenion has great potential to advance U.S. interests related to the navigation of the seas, the productive use of their resources, and the protection of the marine environment." On October 21, 2003, the committee met again to hear from military experts, industry executives and environmentalists about the mechanics of approving the Convention. They sought to pinpoint areas of concern, contentious issues and common ground. A summary of the testimony is available here.

On Sep. 28, 1945, President Harry S. Truman declared the continental shelf to be U.S. government property, saying: “The Government of the United States regards the natural resources of the subsoil and seabed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control.”

Although Truman used the term continental shelf, he was referring to the entire continental margin — which includes the shelf, slope and rise. Truman’s statement was a claim of new ocean territory and the resources on the bottom. Unfortunately, Truman’s declaration was not enough. An international law was needed to govern the rights and boundaries on the high seas. In 1982, the United Nations stepped in with its Convention on the Law of the Sea.

Put into force in 1994, the Convention established customary international laws such as limiting all coastal countries’ territorial sovereignty of the sea to 12 nautical miles beyond its shores and maintaining high-sea freedoms within a 200-nautical-mile exclusive economic zone or EEZ. One hundred and thirty seven countries have joined the convention, including Russia, the United Kingdom, Ireland, India, Australia, New Zealand, Argentina and Brazil. Notably absent is the United States.

Although the United States worked with the UN to establish the laws of the 1982 Convention, it did not sign because of concerns over rights to deep seabed mining. When an amendment resolved those concerns in 1994, the U.S. signed the amendment, but not the Convention. Since then, the Senate has not ratified the amendment or the Convention. In the meantime, the United States acts as an observer to the proceedings related to the treaty without acting as a formal party.

The Convention also established the Commission on the Limits of the Continental Shelf. The commission holds elections every five years, with the last elections being held in April 2002. The commission recommends to the UN whether the limits a country submits for its continental shelf are scientifically valid, legally defensible and politically acceptable.

Following a November 2001 workshop in Washington, President Bush’s recently created Commission on Ocean Policy encouraged the Senate to ratify the Convention before February 2002. Members of the American Bar Association, the House of Representatives, the State Department and the U.S. Coast Guard testified on the Convention’s importance to domestic resources and international security.

“It is true that there is a long list of treaties which the United States has signed, abides by and supports, but has not ratified,” says Robert Hirshon, president of the American Bar Association. He went on to note that until it joins the UN Convention on the Law of the Sea, the United States is ineligible to elect a scientist to the Commission on the Continental Shelf and identify for the Convention the limits of its continental margin beyond 200 nautical miles. “As oil exploitation has now become technologically feasible in these distant areas, certainty of jurisdiction is essential to stability,” Hirshon says.

Although the Bush administration supports the Convention, the final decision rests with the Senate. Whereas Sen. Richard Lugar (R-IL), chairman of the committee, supports the Law of the Sea, other Republican committee members long led by former Committee Chairman Jesse Helms (R-N.C.) oppose ratification. Senate Republicans “generally speaking have not supported the Law of the Sea treaty because it would create new United Nations bureaucracy,” Lester Munson, press secretary for the minority staff of the Foreign Relations Committee told Geotimes in 2002. Additionally, he says there are more technical objections, but he did not disclose them.

Still, with the support of the Bush administration and U.S. industry, a consensus is growing to move forward with formal U.S. participation in the Law of the Sea. At the November 2001 workshop for the Commission on Ocean Policy, Robert Hirshon summed up those sentiments: “There does not now appear to be any rationale that supports our continuing nonparticipation in an agreement that so effectively stemmed the rising tide of claims of national jurisdiction in the oceans, and that will continue to serve our interests as long as the United States sits astride two great oceans.”

Sources: Environment & Energy Daily, Hearing Testimony, Senate Foreign Relations Committee website, United Nations Press Release.

Background section includes material from January 2002 issue of Geotimes.

Contributed by Emily M. Lehr, AGI Government Affairs Program staff and Gayle Levy, AGI/AAPG 2004 Spring Semester Intern.

Please send any comments or requests for information to AGI Government Affairs Program.

Last updated on February 27, 2004

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