What Are the U.S. Objections to the Law of the Sea Treaty?

by Julian Ku

International lawyers from outside the U.S. often wonder why exactly the U.S. has yet to join the UN Convention on the Law of the Sea. This is a good question, since most U.S. international lawyers support joining the treaty, they are not usually able to give a fair description of the basis for opposing the convention.  I am a squish on the Convention, seeing it as both good and bad, but leaning toward slightly more good than bad.  But opponents of the Law of the Sea Treaty in the U.S. are not unreasonable, even if they are not always completely persuasive. That said, they can still be pretty easily rebutted.  Here is an account of Utah Senator Mike Lee’s speech recently outlining his (and most conservatives’) objections to ratifying the treaty.  According to the article, Sen. Lee has three main objections.

1) UNCLOS creates a “tax” on U.S. development of deep seabeds, by requiring contributions to the International Seabed Authority.

2) UNCLOS has, as key parties, many regimes hostile to the U.S., and state sponsors of terrorism. They would be in a position to judge or oversee U.S. actions.

3) UNCLOS creates an international dispute settlement system composed of judges who will probably be hostile to U.S. interests.

These are not unreasonable, but they are not completely convincing.  After all, the U.N. itself effectively imposes a tax on the U.S. (we call them dues).  Both the U.N. and the WTO contain regimes hostile to U.S. interests.  So while it is not ideal, it is hard to see why UNCLOS is being singled out as much worse or dangerous than other far more intrusive treaties.  And Lee is leaving out an assessment of some of the benefits of the treaty. Unless Lee thinks the U.S. was mistaken in joining the U.N. and WTO, I don’t find his analysis here very credible. But you can judge for yourself.

http://opiniojuris.org/2011/09/19/what-are-the-u-s-objections-to-the-law-of-the-sea-treaty/

5 Responses

  1. I think USA has diplomatic role for different issues relating to number of Controversial issues.USA is making rules and regulations that is in the favor of USA.So USA is not participating in the law of sea treaty.

  2. ==UNCLOS creates an international dispute settlement system composed of judges who will probably be hostile to U.S. interests.==

    U.S. has not yet learned to make the distinction between legitimate and illegitimate interests. When an U.S. judge sends a child molester to jail the judge is always hostile to the interests of the rapist. But it does not follow that U.S. should fire the judges and demolish the courthouses.

  3. If the US is already doing some things wrong (for example, joining the UN Human Rights Council), there is no reason why the US should not do other things wrong for similar reasons (joining the Convention on the Law of the Sea). The logic is impeccable.

  4. Keep in mind that we are not discussing a theoretical issue. The Law of the Sea Convention has been in force for more than 16 years, as has the International Seabed Authority (in which the US was a provisional member during the first 4 years in which the basic rules of operation were negotiated). It is long past time to move past a focus on “what might be” and examine how the convention addresses US interests in practice  and how being a non-party is restricting US influence in ocean law and policy and restricting activities of US ocean industry.

    Parties to the convention have submitted critical issues of maritime boundaries for resolution by binding dispute resolution with the Bangladesh-Myanmar dispute now before the International Tribunal for the Law of the Sea. Dozens of nations are submitting proposals for their extended continental shelf to the Commission on the Limits of the Continental Shelf for review and recommendation. The choice is not between the LOS Convention and some ideological fantasy, it is between the LOS Convention and a world where a weakened law of the sea would foster a return to the disorder of ocean claims of the 1950s and 1960s, not with claims to authority at greater distances but ones in which countries like China and India reinterpret and revise customary law claims to give themselves greater authority over activities in their EEZs than are permitted by the Convention.

    Perhaps a good example of the pragmatic view is that when the US decided not to sign the LOS Convention in 1982 there were four consortia considering development of deep seabed hard minerals, with all four being controlled by US firms. Now there are 12 operations (with members from 15 countries) licensed by the ISA conducting exploration of deep seabed mine sites while the sole US licensee under domestic seabed mining legislation has not undertaken active exploration in over a decade and is overdue for renewal of its licenses. This at a time when rising metal consumption in China, India, and Brazil are ensuring good prices of metals from nodules for decades into the future and where rare earth production as a by-product of seabed mining could address a national security issue.

  5. Mihai, that’s possibly the worst analogy I’ve ever come across.

    I actually don’t think it is capable of making your point even if you transpose the parties or indeed under any circumstances.

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