For a number of years the absence of the United States from the list of countries party to the United Nations Convention on the Law of the Sea has been the subject of intense debate inside the U.S. and a certain amount of puzzlement elsewhere.
And at a hearing of the U.S. Senate Subcommittee on Oceans, Atmosphere, Fisheries and Coast Guard on July 27 officials from the U.S. Coast Guard, the U.S. Navy and the State Department again questioned why the U.S. has not ratified the convention, and expressed what they see as the downside of the lack of U.S. participation.
In written testimony to the subcommittee, Ambassador David Balton, deputy assistant secretary of state for oceans and fisheries, said that the convention gives nations exclusive economic zones extending 200 miles offshore, with rights over natural resources including fisheries, energy and minerals, and with the possibility of continental shelf extensions beyond 200 miles if certain conditions are met.
“The United State is likely to have one of the world’s largest continental shelves, potentially extending beyond 600 miles off Alaska,” Balton wrote.
Balton told the subcommittee that although the United States is investigating and collecting data that might support a claim for an extended continental shelf, the U.S. cannot complete the procedure for securing title and international recognition of a claim without being a party to the convention.
“All the other countries of the Arctic are party to the convention and they are using a mechanism in the convention to perfect their claim to areas of the seafloor in the Arctic and elsewhere,” Balton said.
International treatyThe Convention on the Law of the Sea consists of an international treaty establishing rules for all aspects of ocean use, including the rights of passage in or over ocean waters; the territorial sovereignty of coastal nations; the geographical limits of territorial seas and economic exclusion zones; and the environmental protection of the oceans. The convention includes procedures for the peaceful resolution of disputes regarding the use of the world’s oceans. The convention also requires that the International Seabed Authority, consisting of representatives from the states that are party to the convention, administers mining in the deep seabed beyond national jurisdictions.
The United States was deeply involved in the negotiations leading to the formulation of the convention. But when the convention opened for signature in 1982, President Reagan objected to some of the convention provisions relating to deep seabed mining. In the early 1990s strong pressure to resolve the remaining problems with the convention led to the negotiation of a convention amendment. In 1994 President Clinton said that this amendment had fixed the deep seabed mining issues.
In 1994 the Law of the Sea Convention went into effect, followed in 1996 by the amendment addressing the deep-sea mining controversy. Since then 162 nations have ratified the convention; 141 nations and entities have ratified the amendment.
U.S. concernsBut U.S. critics of the treaty have argued that the convention undermines U.S. sovereignty and that customary international law already protects U.S. interests. Some have also expressed concern about the potential for the terms of the convention to compromise U.S. security interests. And although the U.S. Senate Foreign Relations Committee has twice voted in favor of the treaty, the Senate has never approved ratification of either the convention or the amendment.
Balton told the Senate subcommittee on July 27 that the problem with depending on customary international law for determining ocean usage rights is that rights under customary law, being dependent on the practices of individual states, can be eroded over time.
“Only as a party to the convention can we lock in these rights,” Balton said.
And, in written testimony to the subcommittee, Rear Admiral David Titley, oceanographer of the U.S. Navy, said that the convention provides the rule of law that would best help U.S. armed forces protect U.S. Arctic interests.
“Accession to the U.S. Convention on the Law of the Sea is something the Navy believes in very strongly,” Titley told the subcommittee.
Law enforcement need“I’ve never understood the resistance to this,” said Admiral Robert Papp, commandant of the U.S. Coast Guard. “This treaty seems to me to give us great understanding and predictability in how we deal with the freedom of the seas and how we operate on the seas. And as a law enforcement agency that’s responsible for operating within the laws, this is just vital for us to carry out our responsibilities.”
Both Papp and Titley commented that at international meetings involving maritime issues one of the first questions asked is why the United States has not ratified the Convention on the Law of the Sea.
“Other countries are, frankly, looking for the U.S. to be able to show leadership, and it’s hard to show leadership in this treaty when we are not a party to it,” Titley said.