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