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WebMemo #470 on International Law

April 2, 2004

The Law of the Sea Treaty

By

This key research from 2004 has been updated in several Heritage Foundation publications, including:

Congress Should Ignore Budget Requests Relating to
the Law of the Sea Treaty

By Steven Groves
(WebMemo #1804)
February 8, 2008

Why Reagan Would Still Reject the Law of the Sea Treaty
By Steven Groves
(WebMemo #1676)
October 24, 2007

The Top Five Reasons Why Conservatives Should
Oppose the U.N. Convention on the Law of the Sea

By Baker Spring, Steven Groves, and Brett D. Schaefer
(WebMemo #1638)
September 25, 2007

Twenty-five years after President Reagan rejected it, the U.N. Convention on the Law of the Sea Treaty (LOST) remains a threat to U.S. interests. Reagan's objections to LOST have been neither addressed nor resolved. LOST is a flawed treaty that should not be ratified, much less funded prior to ratification.

Additionally, Heritage has put together a compendium of articles and videos related to the Law of the Sea Treaty.

The Law of the Sea Treaty ("Treaty") was conceived in 1982 by the United Nations (U.N.) as a method for governing activities on, over, and beneath the ocean's surface. It focuses primarily on navigational and transit issues. The Treaty also contains provisions on the regulation of deep-sea mining and the redistribution of wealth to underdeveloped countries--as well as sections regarding marine trade, pollution, research, and dispute resolution. The Bush Administration has expressed interest in joining the International Seabed Authority and has urged the U.S. Senate to ratify the Treaty. However, many of former President Ronald Reagan's original objections to the Treaty--while modified--still hold true today, and many of the possible national security advantages are already in place.

National Security Issues

Under the Treaty, a 12-mile territorial sea limit and a 200-mile exclusive economic zone (EEZ) are established. This sets a definitive limit on the oceanic area over which a country may claim jurisdiction. However, innocent passage--including non-wartime activities of military ships--is protected. Even without the Treaty, these boundaries, and the precedent of safe passage, are protected under multiple independent treaties, as well as traditional international maritime law. Additionally, given the United States' naval superiority, few countries would attempt to deny safe passage. However, under the Treaty, intelligenceand submarine maneuvers in territorial waters would be restricted and regulated.

Environmental and Economic Issues

Former President Reagan refused to sign the Treaty in 1982 due to its innate conflict with basic free-market principles (e.g., private property, free enterprise, and competition). Twelve years later, the Clinton Administration submitted to the U.S. Senate a revised version of the Treaty. This revised version allegedly corrected many of the original objections to the Treaty, but still failed to receive Senate ratification: Therefore, the United States' provisional participation expired in 1998. The Treaty still requires adherence to policies that regulate deep-sea mining, as well as forcing participants to adopt laws and regulations to control and prevent marine pollution. Additionally, under the Treaty, a corporation cannot bring suit, but must rely upon its country of origin to address the corporation's concerns before the U.N. agency.

Reagan's Objections

  1. Former President Reagan's first objection to the Treaty was the Principle of the "Common Heritage of Mankind," which dictates that oceanic resources should be shared among all mankind and cannot be claimed by any one nation or people. In order to achieve this goal, the Treaty creates the International Seabed Authority ("Authority") to regulate and exploit mineral resources. It requires a company to submit an application fee of $500,000 (now $250,000), as well as a bonus site for the Authority to utilize for its own mining efforts. Additionally, the corporation must pay an annual fee of $1 million, as well as a percentage of its profits (increasing annually up to 7%), and must agree to share mining and navigational technology--thereby ensuring that opportunities aren't restricted to more technologically advanced countries. The decision to grant or to withhold mining permits is decided by the Authority, which consists disproportionately of underdeveloped countries. Technology-sharing is no longer mandatory, however, there are remaining "principles" to guide its use and distribution. Additionally, the Council has been restructured so that the United States has a permanent seat, and developed countries can create a blocking vote.
  2. Secondly, former President Reagan believed that the Treaty would restrict the world's supply of minerals. The Treaty was originally designed to limit the exploitation of heavy minerals in order to protect the mineral sales of land-locked, developing nations. This is no longer a severe limitation, because production limits to preserve land-based mining have been removed.
  3. The third--and still valid--objection is that mandatory dispute resolution restricts autonomy. Either a U.N. court or tribunal must mandate maritime Issues involving fisheries, marine environmental protection, and preservation, research, and navigation. A country may opt out if the dispute involves maritime boundaries, military, or limited law enforcement activities. Submitting to external jurisdiction creates an uncomfortable precedent. Furthermore, it weakens the U.S. argument of autonomy when it refuses to submit to the International Criminal Court. Additionally, a country must petition to be excluded from mandatory jurisdiction requirements.

Carrie E. Donovan is Production and Operations Coordinator in the Kathryn and Shelby Cullom Davis Institute for International Studies at The Heritage Foundation.

Show references in this report

Selected Studies

Marjorie Ann Browne, "The Law of the Sea Convention and U.S. Policy," Congressional Research Service Issue Brief for Congress No. IB95010, updated January 15, 2004.

John Luddy, "The Law of the Sea Treaty: Unwise and Unnecessary," Heritage Foundation Executive Memorandum No. 386, August 10, 1994.

Roger A Brooks, "The Law of the Sea Treaty: Can the U.S. Afford to Sign?" Heritage Foundation Backgrounder No. 188, June 7, 1982.

Guy M. Hicks, "The Law of the Sea Treaty: A Review of the Issues," Heritage Foundation Backgrounder No. 138, April 28, 1981.

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