The Law of the Sea Convention establishes a comprehensive set of rules governing the uses of the world's oceans, including the airspace above and the seabed and subsoil below. It carefully balances the interests of states in controlling activities off their own coasts and the interests of all states in protecting the freedom to use the oceans without undue interference. Among the central issues addressed by the Convention are navigation and over flight of the oceans, exploitation and conservation of ocean resources, protection of the marine environment, and marine scientific research.
The UNCLOS replaces the older and weaker freedom of the seas concept, dating from the 17th century: national rights were limited to a specified belt of water extending from a nation's coastlines, usually three nautical miles, according to the 'cannon shot' rule developed by the Dutch jurist Cornelius van Bynkershoek. All waters beyond national boundaries were considered international waters free to all nations, but belonging to none of them (the mare liberum principle promulgated by Grotius).
In the early 20th century, some nations expressed their desire to extend national claims: to include mineral resources, to protect fish stocks, and to provide the means to enforce pollution controls. (The League of Nations called a 1930 conference at The Hague, but no agreements resulted.) Using the customary international law principle of a nation's right to protect its natural resources, President Truman in 1945 extended United States control to all the natural resources of its continental shelf. Other nations were quick to follow suit. Between 1946 and 1950, Argentina, Chile, Peru, and Ecuador extended their rights to a distance of 200 nautical miles to cover their Humboldt Current fishing grounds. Other nations extended their territorial seas to 12 nautical miles.
In 1967, only 25 nations still used the old three-mile limit, while 66 nations had set a 12-mile territorial limit and eight had set a 200-mile limit. As of May 28, 2008, only two countries still use the three-mile limit: Jordan and Palau.[1] That limit is also used in certain Australian islands, an area of Belize, some Japanese straits, certain areas of Papua New Guinea, and a few British Overseas Territories, such as Anguilla
The United Nations Convention on the Law of the Sea (UNCLOS), also called the Law of the Sea Convention or the Law of the Sea treaty, is the international agreement that resulted from the third United Nations Conference on the Law of the Sea (UNCLOS III), which took place from 1973 through 1982. The Law of the Sea Convention defines the rights and responsibilities of nations in their use of the world's oceans, establishing guidelines for businesses, the environment, and the management of marine natural resources. The Convention, concluded in 1982, replaced four 1958 treaties. UNCLOS came into force in 1994, a year after Guyana became the 60th state to sign the treaty.[2] To date, 161 countries and the European Community have joined in the Convention. However, it is uncertain as to what extent the Convention codifies customary international law.
While the Secretary General of the United Nations receives instruments of ratification and accession and the UN provides support for meetings of states party to the Convention, the UN has no direct operational role in the implementation of the Convention. There is, however, a role played by organizations such as the International Maritime Organization, the International Whaling Commission, and the International Seabed Authority (the latter being established by the UN Convention).
UNCLOS III
The Third United Nations Conference on the Law of the Sea (UNCLOS III) was convened in late 1973 in New York. The most significant issues covered were setting limits, navigation, archipelagic status and transit regimes, exclusive economic zones (EEZs), continental shelf jurisdiction, deep seabed mining, the exploitation regime, protection of the marine environment, scientific research, and settlement of maritime boundary disputes. With more than 160 nations participating, the Conference continued until its final meeting in late 1982, at which time the final act was signed and the Convention was opened for signature. As time went on, it became clear that the United States, among other developed states, was not willing to agree to Part XI of the Convention concerning deep seabed portions and mining of potentially valuable metals.[3]
The United States objected to Part XI of the Convention on several grounds, arguing that the treaty was unfavorable to American economic and security interests. The U.S. claimed that the provisions of the treaty were not free-market friendly and were designed to favor the economic systems of the Communist states. The U.S. also argued that the International Seabed Authority established by the Convention might become a bloated and expensive bureaucracy, due to a combination of large revenues and insufficient control over what the revenues could be used for.
Revision of the UNCLOS
From 1983 to 1990, the United States accepted all but Part XI as customary international law, while attempting to establish an alternative regime for exploitation of the minerals of the deep seabed. An agreement was made with other seabed mining nations and licenses were granted to four international consortia. Concurrently, the Preparatory Commission was established to prepare for the eventual coming into force of the Convention-recognized claims by applicants, sponsored by signatories of the Convention. Overlaps between the two groups were resolved, but a decline in the demand for minerals from the seabed made the seabed regime significantly less relevant. In addition, the decline of Socialism and the fall of Communism in the late 1980s had removed much of the support for some of the more contentious Part XI provisions.
In 1990, consultations were begun between signatories and non-signatories (including the United States) over the possibility of modifying the Convention to allow the industrialized countries to join the Convention. The resulting 1994 Agreement on Implementation was adopted as a binding international Convention. It mandated that key articles, including those on limitation of seabed production and mandatory technology transfer, would not be applied, that the United States, if it became a member, would be guaranteed a seat on the Council of the International Seabed Authority, and finally, that voting would be done in groups, with each group able to block decisions on substantive matters. The 1994 Agreement also established a Finance Committee that would originate the financial decisions of the Authority, to which the largest donors would automatically be members and in which decisions would be made by consensus.
Modifications to that provision were negotiated, and an amending agreement was finalized in July of 1994. The U.S. signed the Agreement in 1994 and now recognizes the Convention as general international law, but has not ratified it at this time. UNCLOS entered into force in November of 1994 with the requisite sixty ratifications.[4]
Latest Developments
· On April 24, 2004 Jeane Kirkpatrick (Reagan Administration United Nations Ambassador 1981-1985), testified against United States ratification of the treaty before the Senate Armed Services Committee, in which she argued that "Viewed from the perspective of U.S. interests and Reagan Administration principles, it was a bad bargain," and that "its ratification will diminish our capacity for self-government, including, ultimately, our capacity for self-defense.[5]
· On April 11, 2006, the 5-Member UNCLOS Annex VII Arbitral Tribunal, presided over by H.E. Judge Stephen M. Schwebel, rendered after two years of international judicial proceedings, the landmark Barbados/Trinidad and Tobago Award, which resolved the maritime boundary delimitation (in the East, Central and West sectors) to satisfaction of both Parties and committed Barbados and Trinidad and Tobago to resolve their fisheries dispute by means of concluding a new Fisheries Agreement.
· On May 15, 2007, United States President George W. Bush announced that he had urged the Senate to approve the UNCLOS.[6]
· On October 31, 2007, the Senate Foreign Relations Committee voted 17-4 to send the treaty to the full U.S. Senate for a vote.[7]
· On September 20, 2007, an Arbitral Tribunal constituted under UNCLOS issued its decision on a longstanding maritime boundary dispute between Guyana and Suriname, which contained a ruling blaming both nations for violating treaty obligations.[8]
· On January 13, 2009, speaking at her Senate confirmation hearing as nominee for United States Secretary of State, Senator Hillary Clinton said that ratification of the Law of the Sea Treaty would be a priority for her.[9]
Debateble
In the United States there has been vigorous debate over the ratification of the treaty, with criticism coming mainly from political conservatives who consider involvement in some international organizations and treaties as detrimental to U.S. national interests. A group of Republican senators, led by Jim Inhofe of Oklahoma, has blocked American ratification of the Convention, claiming that it would impinge on U.S. sovereignty. The Bush administration, a majority of the United States Senate, and the Pentagon favored ratification.[10]
Pro-Ratification Arguments
§ The environment: Oceans cover over 70% of the Earth. In the U.S., there are laws to keep marine resources available for future generations. UNCLOS sets a legally binding international standard which aims to protect the marine wildlife and environment.
§ National security: The U.S. military, which relies heavily on its ability to freely navigate on and fly over the sea, has been a strong advocate of UNCLOS. In the absence of treaty law, the US relies on customary law that can change as states' practices change. Also, under this customary law, the Pentagon claims that countries often make unreasonable and irresponsible claims on marine territory that frustrate U.S. military action. The U.S. has tried to work around these claims, but without a legal framework to support them, the Pentagon believes it risks compromising its intelligence and military operations at sea.
§ International diplomacy and peaceful dispute resolution: The Convention offers a peaceful way to resolve territorial and natural resource disputes through the International Tribunal for the Law of the Sea (ITLOS), based on agreements to which signatory parties have already committed. In contrast, without ratification, the US has no peaceful recourse if another non-signatory party decides to close its straits to navigation except through the Permanent Court of Arbitration which was established in 1902 to allow States to settle disputes in a manner other than war.
§ It helps American businesses: Each country has exclusive rights to manage the resources in areas near its coast. Under the terms of UNCLOS, which maps out the boundaries of these areas, the American zone is larger than that of any other country in the world. The size of this zone is 3.36 million square miles — bigger than the lower 48 states combined. In addition, under UNCLOS, coastal states can exercise sovereign rights over natural resources within the extended continental shelf area beyond this territory. It would also give US companies an opportunity to apply for licenses with the ISA, which manages claims to resources in the deep seabed, an area over which no country has sovereign rights.
Anti-Ratification Arguments
§ National sovereignty: The treaty creates the International Seabed Authority (ISA) with its own dispute resolution tribunal. However, should the U.S. stop its current compliance with the U.S.-negotiated laws of the Convention, the U.S. could not be taken to the Law of the Sea Tribunal since the U.S. has indicated that it would choose binding arbitration rather than availing itself of the International Tribunal on the Law of the Sea.
§ The environment: Some of the Convention's conservation provisions would provide new avenues for non-U.S. environmental organizations to affect domestic U.S. environmental policies by pursuing legal action in both US and international courts.[11] In addition, requirements that nations either harvest their entire allowable catch in certain areas or give the surplus to other nations could result in mandated overfishing.[9]
§ Taxation: The license fees and taxes levied on economic activities in the deep seabed area by the ISA would be, in effect, a form of 'taxation without representation'. Citizens would be indirectly taxed through business and governmental activities in the area.
§ Economics: Businesses can already exploit resources from the international area; ratifying the treaty would force them to buy licenses for that right and pay taxes on the proceeds.
§ Navigation rights not threatened: One of the treaty's main selling points, legally recognized navigation rights on, over, and under straits, is unnecessary because these rights are not currently threatened by law or by any military capable of opposing the U.S.
§ Harm to de-militarizing operations: The treaty would require all undersea ocean vessels, including submarines used for mine detection to protect ships exercising the right of innocent passage, to navigate on the surface in territorial waters to be entitled to the right of innocent passage. The operative language is identical to that contained in the 1958 Convention on the Territorial Sea and Contiguous Zone to which the U.S. is already a party.[12]
§ Limited control over funding: The U.S. would have no direct control over how the money is used.
§ Eminent domain: The treaty applies eminent domain to intellectual property giving the UN the power to seize technology and share it with potentially enemy states.
Lack of need: The U.S. already honors almost all the provisions of the treaty. For practical purposes, there is no pressing need to ratify it that outweighs the negatives of the remaining provisions.
Conclusion
The fact that these concerns have been allowed to sideline the treaty for ten years is a bad sign for U.S. foreign policy in an age of terrorism. If we cannot get beyond political paralysis in a case where the coalition of American supporters is so comprehensive, there is little reason to think that any multi-lateral solution to any international problem is likely to be accepted within the U.S. policy-making structure.
Eventually, however, we believe that the United States will become a party to the Convention because events will transpire that will brightly illuminate the costs of not ratifying it. At some point, a foreign nation will seek rule changes to the treaty that restrict passage by U.S. Navy vessels. At some point, our oil and mining industries will want to prospect beyond the 200-mile Exclusive Economic Zone. They won't do that without the international legal certainty provided by the Law of the Sea that their claims and investments will be respected by other nations. At some point, Russia or some other country will succeed in having excessive ocean claims recognized because we are not there to stop them.
it is irresponsible for us to wait to ratify the Law of the Sea until we feel the negative consequences of our absence from the Convention. The Senate should ratify the Law of the Sea Convention now in the interest of U.S. national security, the U.S. economy, and the American people.
REFFERENCES
Amy Ridenour. "Amy Ridenour's National Center Blog: Bush Administration Law of the Sea Treaty Defense Inaccurate." The National Center for Public Policy Research. June 18, 2007
David A. Ridenour. 2006. Ratification of the Law of the Sea Treaty: A Not-So-Innocent Passage." The National Center for Public Policy Research.
Guyana/Suriname, 2007. Permanent Court of Arbitration
Roger Rufe, 2 003.President of the Ocean Conservancy. Statement before the Senate Committee on Foreign Relations.
Table of claims to maritime jurisdiction. 2009. United Nations Division for Ocean Affairs and the Law of the Sea.
The United Nations Convention on the Law of the Sea (A historical perspective)". 2009.United Nations Division for Ocean Affairs and the Law of the Sea.
President's Statement on Advancing U.S. Interests in the World's Oceans. Office of the Press Secretary. May 15, 2007.
Transcript of Hillary Clinton's Confirmation Hearing. 2009. Council on Foreign Relations.
[1] Table of claims to maritime jurisdiction". United Nations Division for Ocean Affairs and the Law of the Sea. Retrieved May 1, 2009
[2] The United Nations Convention on the Law of the Sea (A historical perspective)". United Nations Division for Ocean Affairs and the Law of the Sea. Retrieved April 30, 2009.
[3] Roger Rufe, President of the Ocean Conservancy. Statement before the Senate Committee on Foreign Relations, October 21, 2003.
[4] ibid
[6] ^ President's Statement on Advancing U.S. Interests in the World's Oceans. Office of the Press Secretary. May 15, 2007.
[9] Transcript of Hillary Clinton's Confirmation Hearing. Council on Foreign Relations. January 13, 2009.
[10] Andrew C. Revkin. "As Polar Ice Turns to Water, Dreams of Treasure Abound." NY Times. 10-10-2005.
[11] David A. Ridenour. "Ratification of the Law of the Sea Treaty: A Not-So-Innocent Passage." The National Center for Public Policy Research. August 2006.
[12] Amy Ridenour. "Amy Ridenour's National Center Blog: Bush Administration Law of the Sea Treaty Defense Inaccurate." The National Center for Public Policy Research. June 18, 2007
