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, intelligence and 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
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.
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.
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.
So in other words, we would have to rely on France and Germany if we wanted to prevent anti-American policies on the part of the ISA.
Yeah, that's gonna work REAL well. What nitwit in our State department thought up this solution?