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 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."

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." (2-2-2005)

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. 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.”

108th Congress
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, Greenwire.

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.