Law of the Sea (2-2-05)
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 worlds 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."
Greenwire reported on February 1st that the Bush administration
is continuing to voice support for ratification of the U.N. Convention
on the Law of the Sea, butting heads with conservatives in the Senate
who stymied the treaty's progress during the 108th Congress.
During her confirmation hearings to become secretary of State, Condoleeza
Rice reiterated the administration's support for the treaty. "We
very much want to see it go into force," she said. After her
testimony Foreign Relations Committee Chairman Richard Lugar (R-IN)
commented that he couldn't "think of a stronger administration
statement in support of the Law of the Sea Convention."
According to Greenwire, conservatives in the Senate, led by Environment
and Public Works Committee Chairman James Inhofe (R-OK), are wary
of the treaty because they say it would cede U.S. authority over safe
passage rights for the U.S. Navy and allow the levying of taxes on
U.S. offshore oil, gas and mineral development. Inhofe, along with
Sens. John Kyl (R-AZ) and Jeff Sessions (R-AL), sent a letter to the
Government Accountability Office on January 18th listing more than
three dozen areas of concern, mainly pertaining to national security.
The wide-ranging measure provides for a comprehensive framework of
ocean management and has been described by many as a "constitution
for the oceans." It delineates offshore jurisdictions, including
a 200-mile exclusive economic zone that countries can manage at their
discretion, and outlines a comprehensive marine protection program
with requirements for marine environmental assessments and enforcement
of species protection measures. It would allow countries to apply
to extract natural resources outside the 200-mile limit.
For her part, Rice said the administration does not believe the treaty
would impinge on the military's operations in the war on terror or
any other conflict. On the contrary, she said, "becoming a party
to the Convention would strengthen our ability to deflect potential
proposals that would be inconsistent with U.S. national security interests,
including those affecting freedom of navigation."
One of the most contentious provisions is the treaty's creation of
the International Seabed Authority, which would oversee the extraction
of resources beyond each nation's 200-mile exclusive economic zone.
Opponents such as Inhofe have expressed concern that ISA could impose
taxes on countries for their offshore resource extraction activities.
Rice disagreed. "Commentators who have made this assertion have
argued that the International Seabed Authority somehow has regulatory
power over all activities in the oceans," she said, arguing that
ISA would only regulate exploration of areas the United States currently
does not lay claim to and would not oversee freedom of navigation
and oversight. She said the treaty would allow the United States to
expand sovereign rights beyond the traditional 200-mile limit.
Inhofe's letter raised the question of whether the Law of the Sea
Tribunal could issue opinions related to marine mammals and sonar,
for example, and thereby regulate U.S. naval activities. The letter
groups the tribunal with the International Court of Justice in the
Hague, asking the GAO whether opinions issued by either body would
have legal ramifications in the United States.
The Foreign Relations Committee unanimously adopted the treaty last
year, but Senate Majority Leader Bill Frist (R-Tenn.) did not schedule
it for a floor vote. Because of Senate procedures, the committee must
approve the treaty once again before it can be considered by the full
chamber. Committee spokesman Andy Fisher told Greenwire that passing
the treaty is "the request of the Bush administration."
On September 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. Trumans statement was a claim of new ocean territory
and the resources on the bottom. Unfortunately, Trumans 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
Following a November 2001 workshop in Washington, President Bushs
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 Conventions 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,
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.
On February 25, 2004, the Senate Foreign Relations Committee voted
unanimously to adopt the U.N. Convention on the Law of the Sea. If
ratified by the full Senate, requiring a 2/3 vote, the US would join
140 other countries in a committment to a comprehensive framework
for ocean management. The United States has hesitated on ratification
due to concerns over soverignty, natural resource development restrictions,
and the concern that developing nations would be given the same influence
as developed countries. The Senate failed to vote on the treaty before
the adjournment of the 108th Congress.
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 Lehr Wallace, AGI Government Affairs Program
staff and Gayle Levy, AGI/AAPG 2004 Spring Semester Intern, and David
R. Millar 2004 AGI/AAPG Fall Semester Intern
Please send any comments or requests for information to AGI Government Affairs Program.
Last updated on February 2, 2005.