The United States and the 1982 Law of the Sea Treaty
The authors look at the prospects for U.S. ratification of the Law of the Sea treaty and what effect that would have on the treaty's success.
Since at least 1994, a strong base of support for accession to the Law of the Sea Convention in the United States has existed in the federal government, industry and civil society. It is likely that no other treaty has ever been so widely supported and yet failed to be put to a vote in the Senate for such a long duration. The Defense Department, the State Department, the Commerce Department, the U.S. Coast Guard, the oil industry, the shipping industry, and the fishing sector, as well as environmental and conservation non-governmental organizations and religious organizations all support the treaty. Additionally, both the National Commission on Oceans Policy and the Pew Oceans Commission in their recent reports strongly urged immediate action by the Senate and accession to the Convention.
Further reflecting broad bipartisan support, in a highly unusual statement in the history of U.S. treaty ratification practice, all living former Legal Advisers of the U.S. Department of State issued a joint letter on April l7, 2004 to Senators William H. Frist (then Majority Leader), Richard G. Lugar (then Chairman, Committee on Foreign Relations), and John W. Warner and Carl Levin (respectively, then Chairman and Ranking Member, Committee on Armed Services. In that letter, the eight former Legal Advisers wrote:
We are unanimous in our view that it is in the best interests of the United States that the Senate, at its earliest opportunity, grant its advice and consent to United States accession to the 1982 United Nations Convention on the Law of the Sea and to United States ratification of the 1994 Implementing Agreement that modifies Part XI of the LOS Convention.
Senate delay may prove costly since treaties without leadership can decay. Shortly after World War II, a unilateral move by the U.S. in the Truman Proclamations of September 1945, declaring ownership of the continental shelf seabed resources and announcing a policy for extended US jurisdiction of coastal fisheries far out to sea beyond the then dominant three mile limit, diplomatically backfired for the U.S. as the Proclamations resulted in a bevy of national claims by other nations. These nations claimed jurisdiction or even sovereignty over waters as much as 200 miles off their coasts - a development fraught with negative consequences for U.S. naval operations, shipping, and distant water fishery interests. The next three decades of U.S. oceans diplomacy were dedicated to containing this explosion of offshore claims. The solution was formulated with the leadership and consistent support of the U.S. and was formalized in the comprehensive package of new law in the 1982 Law of the Sea Convention. The Convention's central innovation was the creation of a third type of ocean zone from the new 12-mile outer limit of the territorial sea to 200 miles past which the traditional "freedom of the high seas" is retained. That in-between zone of ocean (the Exclusive Economic Zone) mixes coastal ownership and high seas freedoms in a way that allows the U.S. to have sovereign rights in the fish for 200 miles off its coasts but still allows the U.S. Navy to operate up to 12 miles off of other coastlines. The crucial point is that the Exclusive Economic Zone is a complex zone and is, by its nature, unstable, easily tending to gravitate to more and more ownership claims by the nearby coastal state.
The Law of the Sea Convention sets forth the deal, has the institutions to enforce the deal, and may be one of the main things that prevent a collapse of zones from recurring.