United States and the United Nations Convention on the Law of the Sea

Last updated

.mw-parser-output .legend{page-break-inside:avoid;break-inside:avoid-column}.mw-parser-output .legend-color{display:inline-block;min-width:1.25em;height:1.25em;line-height:1.25;margin:1px 0;text-align:center;border:1px solid black;background-color:transparent;color:black}.mw-parser-output .legend-text{} Parties Parties, dually represented by the European Union Signatories Non-parties United Nations Convention on the Law of the Sea parties.svg
  Parties
  Parties, dually represented by the European Union
  Signatories
  Non-parties

The United States was among the nations that participated in the third United Nations Conference on the Law of the Sea, which took place from 1974 through 1982 and resulted in the international treaty known as the United Nations Convention on the Law of the Sea (UNCLOS). The United States also participated in the subsequent negotiations of modifications to the treaty from 1990 to 1994. The UNCLOS came into force in 1994. Although the United States now recognizes the UNCLOS as a codification of customary international law, it has not ratified it.

Contents

UNCLOS, also called the Law of the Sea Convention or the Law of the Sea Treaty, defines the rights and responsibilities of nations in their use of the world's oceans; it establishes guidelines for businesses, the environment, and the management of marine natural resources. To date, 168 countries and the European Union have joined the Convention.

History

UNCLOS III

Sea areas in international rights (Top view) Zonmar-en.svg
Sea areas in international rights (Top view)

The Third United Nations Conference on the Law of the Sea (UNCLOS III) was convened from June to August in Caracas, Venezuela in 1974. The most significant issues which were covered were setting limits, navigation, archipelagic status and transit regimes, exclusive economic zones (EEZs), continental shelf jurisdiction, deep seabed mining, the exploitation regime, protection of the marine environment, scientific research, and settlement of maritime boundary disputes. With more than 160 nations participating, the Conference continued until its final meeting in late 1982, at which time the final act was signed and the Convention was opened for signature. As time went on, it became clear that the United States, among other developed states, was not willing to agree to Part XI of the Convention concerning deep seabed portions and mining of potentially valuable metals. [1]

The United States objected to Part XI of the Convention on several grounds, arguing that the treaty was unfavorable to American economic and security interests. The U.S. claimed that the provisions of the treaty were not free-market friendly and were designed to favor the economic systems of the Communist states. The U.S. also argued that the International Seabed Authority established by the Convention might become a bloated and expensive bureaucracy, due to a combination of large revenues and insufficient control over what the revenues could be used for.

The United States accepted all but Part XI as customary international law. In March 1983 President Ronald Reagan, through Proclamation No. 5030, claimed a 200-mile exclusive economic zone. In December 1988 President Reagan, through Proclamation No. 5928, extended U.S. territorial waters from three nautical miles to twelve nautical miles for national security purposes. However a legal opinion from the Justice Department questioned the President's constitutional authority to extend sovereignty as Congress has the power to make laws concerning the territory belonging to the United States under the U.S. Constitution. In any event, Congress needs to pass laws defining if the extended waters, including oil and mineral rights, are under State or Federal control. [2] [3]

Revision of the UNCLOS

From 1983 to 1990, the United States attempted to establish an alternative regime for exploitation of the minerals of the deep seabed. An agreement was made with other seabed mining nations and licenses were granted to four international consortia. Concurrently, the Preparatory Commission was established to prepare for the eventual coming into force of the Convention-recognized claims by applicants, sponsored by signatories of the Convention. Overlaps between the two groups were resolved, but a decline in the demand for minerals from the seabed made the seabed regime significantly less relevant. In addition, the decline of Socialism and the fall of Communism in the late 1980s had removed much of the support for some of the more contentious Part XI provisions.

In 1990, consultations were begun between signatories and non-signatories (including the United States) over the possibility of modifying the Convention to allow the industrialized countries to join the Convention. The resulting 1994 Agreement on Implementation was adopted as a binding international Convention. It mandated that key articles, including those on limitation of seabed production and mandatory technology transfer, would not be applied, that the United States, if it became a member, would be guaranteed a seat on the Council of the International Seabed Authority, and finally, that voting would be done in groups, with each group able to block decisions on substantive matters. The 1994 Agreement also established a Finance Committee that would originate the financial decisions of the Authority, to which the largest donors would automatically be members and in which decisions would be made by consensus.

Thus, modifications to that provision were negotiated, and an amending agreement was finalized in July 1994. The U.S. signed the Agreement in 1994 and now recognizes the Convention as general international law, but has not ratified it at this time. UNCLOS entered into force in November 1994 with the requisite sixty ratifications. [1]

Latest developments

Chairman of the Joint Chiefs of Staff Gen. Martin E. Dempsey U.S Army at the Forum on the Law of the Sea Convention held in Washington D.C., May 9, 2012 Defense.gov News Photo 120509-D-NI589-103 - Chairman of the Joint Chiefs of Staff Gen. Martin E. Dempsey U.S Army delivers remarks at the Forum on the Law of the Sea Convention held at the.jpg
Chairman of the Joint Chiefs of Staff Gen. Martin E. Dempsey U.S Army at the Forum on the Law of the Sea Convention held in Washington D.C., May 9, 2012

On April 24, 2004 Jeane Kirkpatrick (Reagan Administration United Nations Ambassador 1981–1985), testified against United States ratification of the treaty before the Senate Armed Services Committee, in which she argued that "Viewed from the perspective of U.S. interests and Reagan Administration principles, it was a bad bargain," and that "its ratification will diminish our capacity for self-government, including, ultimately, our capacity for self-defense." [4]

On April 11, 2006, the 5-Member UNCLOS Annex VII Arbitral Tribunal, presided over by H.E. Judge Stephen M. Schwebel, rendered after two years of international judicial proceedings, the landmark Barbados/Trinidad and Tobago Award, which resolved the maritime boundary delimitation (in the East, Central and West sectors) to satisfaction of both Parties and committed Barbados and Trinidad and Tobago to resolve their fisheries dispute by means of concluding a new Fisheries Agreement.

On May 15, 2007, U.S. President George W. Bush announced that he had urged the Senate to approve UNCLOS. [5]

On September 20, 2007, an Arbitral Tribunal constituted under UNCLOS issued its decision on a longstanding maritime boundary dispute between Guyana and Suriname, which contained a ruling blaming both nations for violating treaty obligations. [6]

On October 31, 2007, the Senate Foreign Relations Committee voted 17–4 to send the treaty to the full U.S. Senate for a vote. [7]

On January 13, 2009, speaking at her Senate confirmation hearing as nominee for U.S. secretary of state, Senator Hillary Clinton said that ratification of the Law of the Sea Treaty would be a priority for her. [8]

On May 23, 2012, Secretary of State Hillary Clinton testified before the U.S. Senate Committee on Foreign Relations and argued for the ratification of the treaty. [9] During the same hearing, Secretary of Defense Leon Panetta and Joint Chiefs of Staff Chairman General Martin Dempsey also urged swift ratification of the Law of the Sea Treaty. [10]

On June 14, 2012, The U.S. Senate Committee on Foreign Relations held the so-called "24 Star" hearing, featuring six four-star generals and admirals representing every branch of the U.S. Armed Forces. Each witness, including the Vice Chairman of the Joint Chiefs of Staff; Chief of Naval Operations; Commandant of the Coast Guard; Commander of U.S. Transportation Command; Commander of U.S. Northern Command; and Commander of the U.S. Pacific Command, testified in favor of ratifying the treaty. [11]

On June 28, 2012, the U.S. Chamber of Commerce, the American Petroleum Institute (API), the National Association of Manufacturers (NAM) and Verizon Communications testified before the U.S. Senate Committee on Foreign Relations that the Law of the Sea Treaty would strengthen the U.S. economy and help create American jobs. [12]

On July 16, 2012, 34 Republican Senators signed a letter to U.S. Senate Foreign Relations Committee Chairman John Kerry pledging to vote against the treaty. [13] Because treaty ratification in the U.S. requires 2/3 of the United States Senate to vote for approval, the 34 signatories are enough to stop treaty ratification. However, Senator Lisa Murkowski later said that the vote to deny passage in 2012 was purely political and that the U.S. Chamber of Commerce would deliver enough Republican votes for passage in the lame-duck session. [14]

As of 2023, the United States has not ratified UNCLOS. [15]

Debate

Jim Inhofe Jim Inhofe official portrait.jpg
Jim Inhofe

In the United States there has been vigorous debate over the ratification of the treaty, with criticism coming mainly from political conservatives. [16] [17] A group of Republican senators led by Jim Inhofe of Oklahoma blocked American ratification of the Convention,[ when? ] claiming that it would impinge on U.S. sovereignty. [18] Other commentators have argued that although the George W. Bush administration, the Pentagon and the Senate Foreign Relations Committee favored ratification, [19] other U.S. congressional committees possessing oversight jurisdiction have yet to undertake an open, transparent and substantive public review of this most complex treaty's significant environmental regulatory and judicial enforcement provisions, their relationship to the provisions of other multilateral environmental treaties, and the need to amend U.S. federal environmental, wildlife, chemicals and offshore drilling laws and/or regulations in order to implement the international legal obligations the U.S. would assume upon ratification of UNCLOS. [20] It is arguable whether such a review would have revealed the relationship between U.S. UNCLOS accession efforts, environmental legislation previously proposed by members of the 111th Congress and oceans policies adopted by the Obama administration. [21]

See also

Related Research Articles

<span class="mw-page-title-main">International Seabed Authority</span> Intergovernmental body to regulate mineral-related activities on the seabed

The International Seabed Authority (ISA) is a Kingston, Jamaica-based intergovernmental body of 167 member states and the European Union established under the 1982 UN Convention on the Law of the Sea (UNCLOS) and its 1994 Agreement on Implementation. The ISA's dual mission is to authorize and control development of mineral related operations in the international seabed considered the "common heritage of all mankind" and also protect the ecosystem of the seabed, ocean floor and subsoil in "The Area" beyond national jurisdiction. The ISA is to safeguard the international deep sea, the waters below 200 meters or 656 feet, where photosynthesis is hampered by inadequate light. Governing approximately half of the total area of the world's oceans, the ISA is to exercise oversight of activities that might threaten biological diversity and harm the marine environment. The Authority operates as an autonomous international organization with its own Assembly, Council and Secretariat.

<span class="mw-page-title-main">United Nations Convention on the Law of the Sea</span> International maritime law

The United Nations Convention on the Law of the Sea (UNCLOS), also called the Law of the Sea Convention or the Law of the Sea Treaty, is an international treaty that establishes a legal framework for all marine and maritime activities. As of July 2024, 169 States and the European Union are parties.

<span class="mw-page-title-main">International waters</span> Water outside of national jurisdiction

The terms international waters or transboundary waters apply where any of the following types of bodies of water transcend international boundaries: oceans, large marine ecosystems, enclosed or semi-enclosed regional seas and estuaries, rivers, lakes, groundwater systems (aquifers), and wetlands.

<span class="mw-page-title-main">Treaty of Tripoli</span> 1797 treaty between the US and Tripolitania

The Treaty of Tripoli was signed in 1796. It was the first treaty between the United States and Tripoli to secure commercial shipping rights and protect American ships in the Mediterranean Sea from local Barbary pirates.

<span class="mw-page-title-main">Seabed Arms Control Treaty</span> 1971 international agreement limiting nuclear weapons on the sea floor

The Seabed Arms Control Treaty is a multilateral agreement between the United States, Soviet Union, United Kingdom, and 91 other countries banning the emplacement of nuclear weapons or "weapons of mass destruction" on the ocean floor beyond a 12-mile (22.2 km) coastal zone. It allows signatories to observe all seabed "activities" of any other signatory beyond the 12-mile zone to ensure compliance.

<span class="mw-page-title-main">Law of the sea</span> International law concerning maritime environments

Law of the sea is a body of international law governing the rights and duties of states in maritime environments. It concerns matters such as navigational rights, sea mineral claims, and coastal waters jurisdiction.

<span class="mw-page-title-main">International Tribunal for the Law of the Sea</span> Intergovernmental organization

The International Tribunal for the Law of the Sea (ITLOS) is an intergovernmental organization created by the mandate of the Third United Nations Conference on the Law of the Sea. It was established by the United Nations Convention on the Law of the Sea, signed at Montego Bay, Jamaica, on December 10, 1982. The Convention entered into force on November 16, 1994, and established an international framework for law over all ocean space, its uses and resources. The ITLOS is one of four dispute resolution mechanisms listed in Article 287 of the UNCLOS. Although the Tribunal was established by a United Nations convention, it is not an "organ" of the United Nations. Even so, it maintains close links with the United Nations and in 1997 the Tribunal concluded an Agreement on Cooperation and Relationship between the United Nations and the International Tribunal for the Law of the Sea, which establishes a mechanism for cooperation between the two institutions.

Freedom of navigation (FON) is a principle of law of the sea that ships flying the flag of any sovereign state shall not suffer interference from other states, apart from the exceptions provided for in international law. In the realm of international law, it has been defined as “freedom of movement for vessels, freedom to enter ports and to make use of plant and docks, to load and unload goods and to transport goods and passengers". This right is now also codified as Article 87(1)a of the 1982 United Nations Convention on the Law of the Sea.

Satya N. Nandan, CF, CBE, was a diplomat and lawyer from Fiji specializing in ocean affairs, was Chairman of the Western and Central Pacific Fisheries Commission, where he served a two-year term commencing 1 January 2009. Previously, he was the first Secretary-General of the International Seabed Authority, a position he held for three consecutive four-year terms from March 1996 until December 2008.

The Convention on the Protection of the Underwater Cultural Heritage is a treaty that was adopted on 2 November 2001 by the General Conference of the United Nations Educational, Scientific and Cultural Organization (UNESCO). The convention is intended to protect "all traces of human existence having a cultural, historical or archaeological character" which have been under water for over 100 years. This extends to the protection of shipwrecks, sunken cities, prehistoric art work, treasures that may be looted, sacrificial and burial sites, and old ports that cover the oceans' floors. The preservation of underwater cultural heritage is significant as it allows for the retelling of numerous historical events. As part of its duty to conduct scientific research and provide continuous education on the importance of underwater cultural heritage, UNESCO strives to maintain these sites for the enjoyment of current and future generations. The convention may provide a customary framework to help raise awareness and seek to combat the illegal looting and pirating occurring in waters worldwide. As an international body, member states of the convention agree to work towards the preservation of sunken cultural property within their jurisdiction and the high seas.

<span class="mw-page-title-main">Territorial claims in the Arctic</span>

The Arctic consists of land, internal waters, territorial seas, exclusive economic zones (EEZs) and international waters above the Arctic Circle. All land, internal waters, territorial seas and EEZs in the Arctic are under the jurisdiction of one of the eight Arctic coastal states: Canada, Denmark, Finland, Iceland, Norway, Russia, Sweden and the United States. International law regulates this area as with other portions of Earth.

Space policy is the political decision-making process for, and application of, public policy of a state regarding spaceflight and uses of outer space, both for civilian and military purposes. International treaties, such as the 1967 Outer Space Treaty, attempt to maximize the peaceful uses of space and restrict the militarization of space.

<span class="mw-page-title-main">Convention on the Continental Shelf</span> 1958 international treaty

The Convention on the Continental Shelf was an international treaty created to codify the rules of international law relating to continental shelves. The treaty, after entering into force 10 June 1964, established the rights of a sovereign state over the continental shelf surrounding it, if there be any. The treaty was one of three agreed upon at the first United Nations Convention on the Law of the Sea. It has since been superseded by a new agreement reached in 1982 at UNCLOS III.

<span class="mw-page-title-main">Arctic cooperation and politics</span> Between the eight Arctic nations

Arctic cooperation and politics are partially coordinated via the Arctic Council, composed of the eight Arctic states: the United States, Canada, Iceland, Norway, Sweden, Finland, Russia, and Denmark with Greenland and the Faroe Islands. The dominant governmental power in Arctic policy resides within the executive offices, legislative bodies, and implementing agencies of the eight Arctic countries, and to a lesser extent other countries, such as United Kingdom, Germany, European Union and China. NGOs and academia play a large part in Arctic policy. Also important are intergovernmental bodies such as the United Nations and NATO.

<span class="mw-page-title-main">Chukchi Plateau</span> A large subsea formation extending north from the Alaskan margin into the Arctic Ocean

The Chukchi Plateau or Chukchi Cap is a large subsea formation extending north from the Alaskan margin into the Arctic Ocean. The ridge is normally covered by ice year-round, and reaches an approximate bathymetric prominence of 3,400 m with its highest point at 246 m below sea level. As a subsea ridge extending from the continental shelf of the United States north of Alaska, the Chukchi Plateau is an important feature in maritime law of the Arctic Ocean and has been the subject of significant geographic research. The ridge has been extensively mapped by the USCGC Healy, and by the Canadian icebreaker CCGS Louis S. St-Laurent in 2011 and RV Marcus Langseth, a National Science Foundation vessel operated by the Lamont–Doherty Earth Observatory of Columbia University.

<span class="mw-page-title-main">Exclusive economic zone of Somalia</span>

The exclusive economic zone of Somalia covers 830,389 km2 in the Indian Ocean. It extends to a distance of 200 nautical miles from the baselines, from which the breadth of the nation's territorial waters is measured. In accordance with Law No. 37 passed in 1972, Somalia's EEZ falls under its territorial sovereignty.

<span class="mw-page-title-main">Marine policy of the Barack Obama administration</span>

The Marine Policy of the Barack Obama administration comprises several significant environmental policy decisions for the oceans made during his two terms in office from 2009 to 2017. By executive action, US President Barack Obama increased fourfold the amount of protected marine space in waters under United States control, setting a major precedent for global ocean conservation. Using the U.S. president's authority under the Antiquities Act of 1906, he expanded to 200 nautical miles the seaward limits of Papahānaumokuākea Marine National Monument in Hawaiʻi and the Pacific Remote Islands Marine National Monument around the U.S. island possessions in the Central Pacific. In the Atlantic, Obama created the Northeast Canyons and Seamounts Marine National Monument, the first marine monument in the U.S. exclusive economic zone (EEZ) in the Atlantic.

<span class="mw-page-title-main">Indonesia–Philippines border</span>

The border between Indonesia and the Philippines consists of a maritime boundary mainly on the Celebes Sea that separates the two Southeast Asian countries as defined through a pact that was signed by both parties in 2014. The border is also the Exclusive Economic Zone (EEZ) boundary between Indonesia and the Philippines, which is delimited through eight geographic coordinate points. It has a length of 1,162.2 kilometres dividing across the Celebes Sea to the Philippine Sea.

<span class="mw-page-title-main">Exclusive economic zone of Canada</span>

The exclusive economic zone of Canada is the area of the sea in which Canada has special rights regarding the exploration and use of marine resources, as prescribed by the 1982 United Nations Convention on the Law of the Sea.

References

  1. 1 2 Roger Rufe, President of the Ocean Conservancy. Statement before the Senate Committee on Foreign Relations, October 21, 2003 Archived August 5, 2009, at the Wayback Machine .
  2. ↑ Andrew Rosenthal (December 29, 1988). "Reagan Extends Territorial Waters to 12 Miles". New York Times. Retrieved July 23, 2014.
  3. ↑ Carol Elizabeth Remy (1992). "U.S. Territorial Sea Extension: Jurisdiction and International Environmental Protection". Fordham International Law Journal. 16 (4): 1208–1252. Retrieved July 23, 2014.
  4. ↑ Jeane J. Kirkpatrick. Testimony before the Senate Armed Services Committee. April 8, 2004.
  5. ↑ President's Statement on Advancing U.S. Interests in the World's Oceans. Office of the Press Secretary. May 15, 2007.
  6. ↑ "Guyana/Suriname." Archived February 8, 2013, at the Wayback Machine Permanent Court of Arbitration. September 2007.
  7. ↑ Drawbaugh, Kevin (October 31, 2007). "U.S. Senate panel backs Law of the Sea treaty". Reuters.
  8. ↑ Transcript of Hillary Clinton's Confirmation Hearing. Council on Foreign Relations. January 13, 2009.
  9. ↑ The Law of the Sea Convention (Treaty Doc. 103-39): The U.S. National Security and Strategic Imperatives for Ratification
  10. ↑ "America's Defense Chief, Senior Military Advisor and Top Diplomat Call for 'Law of the Sea' Ratification". RatifyTheTreatyNow.Org. May 23, 2012. Retrieved October 25, 2012.
  11. ↑ ""24 Star" Military Witnesses Voice Strong Support for Law of the Sea Treaty". Senate Committee on Foreign Relations press release. June 14, 2012. Retrieved October 25, 2012.
  12. ↑ "America's Leading Business Voices Testify: 'Law of Sea' Needed for U.S. Economic Growth, Job Creation". RatifyTheTreatyNow.Org. June 24, 2012. Retrieved October 25, 2012.
  13. ↑ "DeMint: Law of the Sea Treaty now dead". WashingtonTimes.Com. July 16, 2012. Retrieved December 25, 2012.
  14. ↑ Colman, Zack. "Republican senator says sea treaty might pass after election." The Hill, 17 August 2012.
  15. ↑ Zhao, Suisheng (2023). The dragon roars back : transformational leaders and dynamics of Chinese foreign policy. Stanford, California: Stanford University Press. p. 239. ISBN   978-1-5036-3088-8. OCLC   1331741429.
  16. ↑ Bonner, Patrick J. (2013). "Neo-Isolationists Scuttle UNCLOS". The SAIS Review of International Affairs. 33 (2). The Johns Hopkins University Press: 135–146. doi:10.1353/sais.2013.0026. JSTOR   26995408. S2CID   154439331 . Retrieved August 30, 2022.
  17. ↑ "Republicans Are Blocking Ratification of Even the Most Reasonable International Treaties". UNCLOSdebate.org. December 26, 2014. Retrieved August 30, 2022.
  18. ↑ "Curious manoeuvrings on the UN Law of the Sea". Global Dashboard. October 20, 2007. Retrieved August 30, 2022.
  19. ↑ Andrew C. Revkin, "As Polar Ice Turns to Water, Dreams of Treasure Abound." NY Times. 10-10-2005,
  20. ↑ Lawrence A. Kogan, "What Goes Around, Comes Around: How UNCLOS Ratification Will Herald Europe’s Precautionary Principle as U.S. Law," Archived July 26, 2011, at the Wayback Machine 7 SANTA CLARA INT’L L. 23-176 (2009).
  21. ↑ Lawrence A. Kogan, "'Ecosystem-Based Management': A Stealth Vehicle To Inject Euro-Style Precaution Into U.S. Regulation/" Washington Legal Foundation Backgrounder Vol. 24 No. 23 (July 2009).

Further reading

General resources

Pro-treaty resources

Anti-treaty resources

This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.