A treaty on thin ice: debunking the arguments against U.S. ratification of the U.N. Convention on the Law of the Sea in a time of global climate crisis.

• Published date: 22 March 2010
• Author: Hudzik, Elizabeth M.
• Date: 22 March 2010

I. INTRODUCTION

On December 10, 1982, the final text of the United Nations Convention on the Law of the Sea ("UNCLOS") was presented for signature in Montego Bay, Jamaica and was signed that day by over 115 countries. (1) The United States, however, was not included among these countries, despite its leading role in the negotiation and drafting of UNCLOS under the administration of President Richard Nixon. (2) At the time of the treaty's presentation, the incumbent Reagan administration objected to the provisions of Part XI of the treaty, which primarily concerned deep seabed rights, (3) and President Reagan thus declined to sign the text. (4) More than twenty-five years later, the United States has yet to accede to UNCLOS--despite significant changes in the text and substance of Part XI, (5) the passing of three presidential administrations, widespread bipartisan support of the treaty, (6) and the emergence of a global climate crisis and an escalating battle over Arctic sovereignty. (7)

This Note will trace the political history of the United States' non-ratification of UNCLOS, from the Nixon administration's support to the Reagan administration's refusal to accede, followed by the treaty's consequent languishing in the Senate for nearly twenty-five years. It will also debunk the major arguments raised by opponents of U.S. ratification, namely national sovereignty, security, environmental policy, and commercial interests. It will also examine the ramifications of the United States' status as a non-signatory country, in light of the warming polar ice cap and dispute over sub-surface mineral rights beneath the North Pole. (8)

II. HISTORY OF UNCLOS

A. The Treaty Develops in the United Nations

Prompted by the end of World War II, the United Nations codified new international law, including that of the law of the sea. (9) Four treaties emerged from the United Nations Conference on the Law of the Sea ("UNCLOS I"): the Convention on the High Seas in 1958, (10) the Convention on the Territorial Sea and the Contiguous Zone in 1958, (11) the Convention on the Continental Shelf in 1958, (12) and the Convention on Fishing and Conservation of the Living Resources of the High Seas in 1958. (13) The combination of the four distinct sources of the law of the sea and the resultant stratification in interpretation and enforcement thereof proved unworkable in practice. (14) Provisions remained ambiguous on many issues, including compulsory dispute resolution processes, "in spite of the fact that the use of ocean space and exploitation of ocean resources was expanding rapidly and concomitantly, increas[ing] the likelihood of conflict." (15) Efforts to resolve these ambiguities at the second United Nations Conference on the Law of the Sea failed. (16) In a speech before the National General Assembly in 1967, Ambassador Arvid Pardo of Malta called attention to the untapped wealth of the ocean seabed. (17) He proposed an equitable approach to these resources by which, as John Adams once said, "the oceans and [their] treasures [were] the property of all men" and resources retrieved therefrom should be shared "in a fair and distributive manner." (18)

Following the 1958 U.N. Convention on the Continental Shelf, U.S. Senator Claiborne Pell advanced the idea of codifying a new system for governing the resources of the world's oceans. (19) As a result, the Nixon administration undertook a review of U.S. policy on the use of the oceans. President Nixon echoed Ambassador Pardo's sentiments by proposing a multi-national treaty to define the deep seabed as the "common heritage of mankind." (20) In 1970, in order to address these appeals for a structured law of the sea, the United Nations called for a negotiation conference and for the formation of a Seabed Committee. (21)

The third United Nations Conference on the Law of the Sea ("UNCLOS III") began in 1973. (22) Though the United States had been a strong international advocate of the conference under President Nixon, the U.S. stance changed when President Reagan took power. The new administration raised concerns during the end stages of the diplomatic negotiations about the deep seabed provisions of the treaty, primarily concerning "unacceptable elements" of the procedural apparatus that would govern deep seabed mining activities and resulting commercial and economic profits. (23) As early as 1976, President Reagan appointed Secretary of Defense Donald Rumsfeld to serve as the Special Presidential Envoy on the Law of the Sea Treaty. (24) Rumsfeld's duty was, in essence, to urge U.S. allies not to ratify the treaty, thus forming a large enough group of non-ratifying countries to keep the treaty from going into force without revision of Part XI. (25) Despite this effort, some industrialized nations were still willing to sign. (26) After the 1982 conference in Montego Bay, the United States began to formally lobby for modification of the language of Part XI of the treaty. (27)

In 1990, prompted by these American lobbying efforts, and at the suggestion of U.N. Secretary General Javier Perez de Cuellar, the U.N. reviewed Part XI of UNCLOS to determine whether revision of the terms on the deep seabed area could be amended to encourage universal participation in the treaty. (28) In 1994, after four years of coordinated revision efforts, the U.N. presented an Implementation Agreement ("Agreement"). (29) This Agreement revised Part XI in light of the breakup of the Soviet Union and "political and economic changes, including in particular a growing reliance on market principles...." (30) Forty-one countries, including the United States (under the Clinton administration), signed the Agreement on July 28, 1994. (31) Under the negotiated terms of the Agreement, the United States was allowed for a limited time to participate in organizing and implementing institutions within the International Seabed Authority. (32) This deadline provision for U.S. participation set the clock ticking for ratification, and in 1994, President Clinton signed both the treaty and the Agreement and sent them to the Senate Foreign Relations Committee for advice and consent. (33)

B. UNCLOS in the U.S. Senate

Senator Claiborne Pell was the Chairman of the Senate Foreign Relations Committee in 1994, and his history of support of UNCLOS was well known. (34) He reaffirmed his commitment to the Convention by making it "one of [his] highest priorities.., in the 104th Congress" when the treaty was sent to the Foreign Relations Committee for hearings. (35) Within a month of this statement, however, national midterm elections shifted control of the Senate from Democrats to Republicans, and Pell was replaced as Chairman of the Foreign Relations Committee by Jesse Helms. (36) Senator Helms used his power as Chairman to keep UNCLOS off the hearings calendar, delaying any progress toward Senate consent to ratification. (37)

During Senator Helms' tenure as Chairman from 1994 to 2003, no hearings or votes were taken on UNCLOS, (38) and the period of limited U.S. participation lapsed, leading to some uncertainty as to the applicable law of the sea in U.S. disputes and policymaking. (39) In 2003, the new Chair, Senator Richard Lugar, voiced support of the treaty and scheduled the first hearings on UNCLOS in nearly ten years. (40) In the aftermath of September 11, 2001, Lugar called attention to the need for a comprehensive multilateral approach to addressing ocean-based national security threats. (41) He noted, "More than 140 nations are party to the Law of the Sea Convention, including all other permanent members of the UN Security Council and all but two other NATO members." (42) During the hearings, the Committee heard testimony from scholars, representatives of non-governmental organizations, security and military experts, and Cabinet members. (43) On February 25, 2004, the Committee reported UNCLOS and the Agreement to the full Senate for consideration. (44)

Opponents of UNCLOS were able to stall Senate progress by calling for additional hearings by Senate committees before a full Senate vote. (45) Despite recommendation for accession by the U.S. Commission on Ocean Policy, (46) opponents successfully blocked a full vote during the 104th Congress, effectively nullifying that term's hearings by the Foreign Relations Committee.

Following the failure of UNCLOS in the 104th Congress, progress on U.S. ratification slowed until a dispute over seabed rights in the Arctic emerged. Though the United States had an interest in laying claim to these rights given Alaska's proximity to the region, as a non-member UNCLOS country, the United States had no seat at the negotiating table. On May 15, 2007, President George W. Bush issued a statement, which in strong terms urged the Senate to act quickly to ratify UNCLOS. (47) He outlined the benefits to U.S. accession: the national security interest, including maritime mobility of U.S. troops internationally; the interest in securing sovereign rights over areas of the world's oceans and the natural resources contained therein; the interest in the environmental health of the world's oceans; and the interest in having a "seat at the table" when vital U.S. rights were debated and interpreted. (48)

Following this statement, then-Foreign Relations Committee Chairman Senator Joseph Biden named UNCLOS as the Committee's lead agenda item. (49) On October 31, the Committee voted favorably on UNCLOS (17-4) and referred it to the full Senate floor for a vote. (50)

III. ARGUMENT FOR RATIFICATION

Despite widespread bipartisan support for ratification of UNCLOS and appeals by several presidents, opponents have been able to forestall U.S. ratification for nearly twenty-five years. Opponents of UNCLOS generally raise four broad areas of concern to U.S. accession to what they call the Law of the Sea Treaty, or "LOST."

A. UNCLOS as a Threat to U.S. Sovereignty

Opponents of UNCLOS see the treaty as a threat to the sovereignty...