September 18, 2012

Navigating the High Seas: Why the U.S. Should Ratify the Law of the Sea Treaty

by Rebecca Bratspies

a(broad) perspective

Today’s post is the last in a series on a recent CPR white paper, Reclaiming Global Environmental Leadership: Why the United States Should Ratify Ten Pending Environmental Treaties.  Each month, this series will discuss one of these treaties.  Previous posts are here.

United Nations Convention on the Law of the Sea (UNCLOS) and
Agreement Relating to the Implementation of Part XI of the Convention
Adopted and Opened for Signature on December 10, 1982.
Agreement on Part XI Adopted on July 28, 1994.

Entered into Force on November 16, 1994 (UNCLOS) and July 28, 1996 (Part XI)
Number of Parties: 162 (UNCLOS) and 141 (Part XI)

Signed by the United States on July 29, 1994.
Sent to the Senate on October 7, 1994.
Reported favorably by the Senate Foreign Relations Committee on
February 25, 2004, and October 31, 2007

The United Nations Convention on the Law of the Sea (LOS Convention) establishes a comprehensive framework for using and protecting the world’s oceans, which cover roughly 70 percent of the planet and contain a variety of natural resources vital to nearly every nation. New technologies have made it possible to reach farther and deeper into the ocean to extract and harvest resources, resulting in increased pollution and a clear impetus to establish a legal framework to govern activities in the high seas.  

The Convention is one of the most important treaties in the history of international relations, addressing almost every aspect of the law of the sea from navigation to environmental protection to mining. For example, the environmental provisions require states to take steps against a variety of threats to the marine environment, including pollution from vessels, dumping of waste, and over-fishing.

The Convention is also one of the most widely ratified treaties in the world, with more than 160 Parties.  For the most part, non-Parties are developing countries that have no maritime interests.  The United States is the only developed coastal state, the only large economy, and the only naval power that does not belong to the Convention. 

The United States took the lead in negotiating the LOS Convention, but disagreement with one portion of the Convention prevented the United States from ratifying the Convention.  Nevertheless, President Ronald Reagan announced that the United States would abide by most of the provisions of the Convention, treating them as customary international law. An additional agreement, completed in 1994 and drafted with significant U.S. involvement, allayed the concerns that had prevented the United States and other developed nations from joining the LOS Convention.  As a result, President Bill Clinton signed the LOS Convention and, together with the additional agreement, submitted it to the Senate in 1994.  The Convention has since received support from Presidents George W. Bush and Barack Obama.

Joining the Convention would protect and advance a wide array of U.S. security, economic and environmental interests. It has the broadest range of support of any of the treaties covered in this blog series. The nation’s security leadership, the U.S. Chamber of Commerce, the oil and gas industry, ocean policy experts, and environmental groups have all urged the Senate to approve the Convention. These supporters emphasize the importance of ensuring that the United States has a seat at the table when the Convention Parties make crucial decisions affecting U.S. national interests.   

Ratifying the LOS Convention would require no changes to U.S. law.  Indeed, since 1983, the United States has voluntarily complied with the Convention’s substantive provisions. Yet, voluntary compliance is not enough.  The United State’s failure to join the Convention directly jeopardizes many significant U.S. interests. Specifically:

  • Global freedom of navigation. By failing to join the Convention, the United States compromises its ability to assert navigational rights and freedoms essential to our armed forces.
  • Biodiversity in the oceans. The United States has an enormous stake in the health of the world’s oceans and the living resources they contain.  The LOS Convention establishes state obligations to manage these resources sustainably.
  • Rules for additional territorial claims over marine resources. Other countries, such as Russia, are eagerly pursing claims to the resource-rich outer continental shelf, especially in the Arctic. As a non-Party, the United States cannot assert its own claim and cannot appoint commissioners to the international body that reviews these claims. 

Senator John Kerry, Chair of the Foreign Relations Committee, has spearheaded another push for ratification. In May and June the Committee again held hearings on the LOS Convention, featuring testimony in support from Secretary of State Hilary Clinton, Defense Secretary Leon Panetta, and the heads of the Chamber of Commerce and American Petroleum Institute. The reasons to become a Party to the Convention are stronger now than ever. The Senate should act quickly to provide its advice and consent to ratification.


Rebecca Bratspies, CPR Member Scholar; Professor of Law, CUNY School of Law, New York. Bio.

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