Law of the Sea Convention: Should the U.S. Join?
Some columnists and think tank analysts have argued that U.S. accession to the Convention is unnecessary because excessive maritime claims can be addressed by invoking customary international law and with “operational assertions’’ by the U.S. military. But such an approach is less certain, more risky, and more costly than taking advantage of the Convention. Customary law is by nature subject to varying interpretations and change over time. Operational assertions—sending military ship and aircraft into contested areas—involve risk to naval personnel as well as political costs. Such assertions should be conducted aggressively where needed, but avoided where possible.
In addition, some columnists and think tank analysts have argued that U.S. accession to the Convention would interfere with the Proliferation Security Initiative (PSI), under which the United States and more than a dozen allies have agreed to interdict some ships that may present a nonproliferation risk. In fact, the Convention expands the list of justifications for ship interdictions set forth in its predecessor, the 1958 Convention on the High Seas, to which the United States has been a party for more than forty years. Among the many legal bases that may be applicable to interdictions under the PSI are the jurisdiction of coastal states in their territorial seas, the right to board stateless vessels, an agreement concerning high-seas boarding with a flag state (the country of origin of an oceangoing vessel) and the inherent right of self-defense. Indeed several allies have recently expressed concern about the U.S. failure to ratify the Convention, asserting that this failure could weaken the PSI.
The Law of the Sea Convention provides a comprehensive framework for international cooperation to protect the marine environment. It imposes minimum requirements—all of which are already being met by the United States—to protect and preserve the marine environment. Under the Convention, states are required to take measures to address pollution from vessels and landbased sources, to prevent the introduction of alien or invasive species, and to conserve and manage coastal fisheries.
The Convention also requires states to work together to protect the oceans. States are required to cooperate in the management of high seas fish stocks, as well as stocks that migrate between the high seas and exclusive economic zones, setting the stage for regional agreements essential to managing ocean fisheries. States are also required to work together to protect marine mammals, which are given special protections under the Convention.
The standards for environmental protection set forth in the Convention work strongly to the advantage of the United States, which has already met and in most cases significantly exceeded these standards but necessarily depends on actions by other nations to protect the marine environment.
Some opponents of ratification have objected to the Convention’s provisions concerning revenue sharing of proceeds from the outer continental shelf. Under the Convention, no payments are owed for the first five years of production (which are typically the most productive). Beginning in year six, payments equal to 1 percent of the value of production at the site, increasing 1 percent each year to a maximum of 7 percent, are owed to the International Seabed Authority.
Significantly, the U.S. oil and gas industry, which would likely make these payments, does not oppose the Convention’s revenue sharing provisions. After noting “the significant resource potential of the broad U.S. continental shelf,’’ Paul Kelly of Rowan Industries, representing the American Petroleum Institute and other major industry groups, told the Senate Foreign Relations Committee in October 2003 that “on balance the package contained in the Convention, including the modest revenue sharing provision, clearly serves U.S. interests.’’
First, there is a risk that important provisions could be weakened by amendment, beginning in November 2004, when the treaty is open for amendment for the first time. Currently, for example, the Convention prohibits coastal states from denying transit rights to a vessel based upon its means of propulsion. Some states, however, may propose to amend this provision to allow exclusion of nuclear-powered vessels. Under the Convention, no amendment may be adopted unless the parties agree by consensus (or, if every effort to reach consensus failed, more than two-thirds of the parties present agree both on certain procedural matters and on the proposed amendment). As a party, the United States would have a much greater ability to defeat amendments that are not in the U.S. interest, by blocking consensus or voting against such amendments.
Second, by staying outside the Convention, the United States increases the risk of backsliding by nations that have put aside excessive maritime claims from years past. Pressures from coastal states to expand their maritime jurisdiction will not disappear in the years ahead—indeed such pressures will likely grow. Incremental unraveling of many gains under the Convention is more likely if the world’s leading maritime power remains a non-party.
In 1994, more than 100 nations adopted a set of rules governing deep seabed mining. The 1994 agreement applies free market principles to deep seabed mining, establishing a mechanism for vesting title in minerals in the entity that recovers them from the ocean floor. The agreement establishes an International Seabed Authority (ISA) with responsibility for supervising this process. The ISA is an independent international organization— not a part of the United Nations.
It is governed by a Council (with principal executive authority) and an Assembly (which gives final approval to regulations and budgets). As a party to the Convention, the United States would be a permanent member of the Council and have the ability, under relevant voting rules, to block most substantive decisions of the Authority, including any decisions with financial or budgetary implications and any decisions to adopt rules, regulations, or procedures relating to the deep seabed mining regime.
The 1994 agreement also recognized the longstanding view that the deep ocean floor is part of the global commons and beyond the reach of national jurisdiction. The agreement addresses in full all concerns identified by President Reagan a decade earlier. Technology transfer requirements—a principal objection in 1982—were deleted from the agreement.
The 1994 agreement is a legally binding modification of Part XI the Law of the Sea Convention.