BACKGROUND The Convention on the Law of the Seais sometimes called a “constitution’’ forthe oceans. Among its many provisions,the Convention limits coastal nationsto a 12-mile territorial sea, establishes200-mile exclusive economic zones,requires nations to work together toconserve high seas fisheries, and estab-lishes a legal regime for the creation ofproperty rights in minerals foundbeneath the deep ocean floor.The Brookings Institution1775 Massachusetts Ave., N.W.Washington, DC 20036All Policy Briefs are available on the Brookings website at www.brookings.edu. Related BrookingsResourcesPOLICY BRIEFThe Brookings InstitutionAugust 2004 Policy Brief #137The United States has vital interests in the oceans. U.S. nationalsecurity depends on navalmobility. U.S. prosperitydepends on underwater energyresources. Ocean fisheries helpfeed the United States and much ofthe world.On February 25, 2004, theSenate Foreign RelationsCommittee unanimously recom-mended that the United Statesaccede to the Law of the SeaConvention, which sets forth a comprehensive framework of rules forgoverning the oceans. The recommendation followed two hearings inwhich the committee heard testimony supporting the Convention fromthe Bush administration, the armed services, ocean industries, andenvironmental groups, among others. Following the favorable report fromForeign Relations, other congressional committees held hearings atwhich several lawmakers raised concerns about the treaty.The United States should promptly join the Law of the SeaConvention. Doing so would help protect U.S. national security, advanceU.S. economic interests, and protect the marine environment. Promptaction is needed to ensure that the United States is a party by November2004, when the Convention is open to amendment for the first time. Law of the Sea Convention: Should the U.S. Join?DAVID B. SANDALOWTo receive a weekly e-mailabout Brookings news, events,and publications, sign up forthe Brookings Alert atwww.brookings.edu.• “U.S. Climate Policy:Toward a Sensible Center’’Conference at Brookings(June 24, 2004)• “Should the United States Ratify the Law of the Sea Treaty?’’Brookings Briefing(May 4, 2004) • Global Challenges for U.S.Energy Policy: Economic,Environmental, andSecurity RisksConference at Brookings(March 5, 2004)• “Cargo Security’’Michael O’HanlonTestimony, SenateGovernmental AffairsCommittee (March 20, 2003)Transcripts for all of theabove available atwww.brookings.edu• Environmental Governance:A Report on the NextGeneration ofEnvironmental PolicyDonald F. Kettl(2002)Historically, rules concerning use of theoceans were established by customaryinternational law—a term used to describepractices considered legally required bymost nations from time to time. The uncer-tainties inherent in such an approach led,in 1958, to the adoption of four conven-tions on oceans governance. The conven-tions were promptly ratified by the UnitedStates and many other countries, but sooncame to be seen as insufficient. Inparticular, during the 1960s, the UnitedStates became increasingly concernedabout the growing number of coastal statesasserting control over vast reaches of theoceans. New issues—including marinepollution—gained greater prominence. In1973, negotiations were launched for acomprehensive Convention on the Law ofthe Sea. The Convention was adopted in 1982. Itsprovisions reflected longstanding U.S.negotiating objectives, including recog-nition of navigational and overflightfreedoms, limits on coastal state juris-diction to a 12-mile territorial sea, theestablishment of 200-mile exclusiveeconomic zones, and rights to the oceanfloor to the edge of the continental shelf.However, the agreement also containedprovisions on deep seabed mining at oddswith U.S. interests, including requirementsfor the mandatory transfer of technologies. President Reagan praised theConvention’s “many positive and verysignificant accomplishments,’’ butdeclined to sign because of the deepseabed mining provisions. In March1983, President Reagan issued an OceanPolicy Statement announcing the UnitedStates’s intention to act generally inaccordance with the terms of theConvention. Further negotiations over the Convention’sdeep seabed mining provisions werelaunched in 1990. These talks concludedin 1994 with a new agreement on deepseabed mining that addressed all of theconcerns that the Reagan administrationhad identified a decade earlier. Also in1994, the Convention entered into forceafter the sixtieth nation joined.In October 1994, the Convention wastransmitted to the Senate for approval.Sen. Jesse Helms (R-N.C.), then-chairmanof the Senate Foreign RelationsCommittee, declined to hold hearings.After Helms retired in January 2003, Sen.Richard Lugar (R-Ind.), the new chair ofForeign Relations, held two hearings onthe treaty. On February 25, 2004, theSenate Foreign Relations Committeeunanimously recommended that theUnited States join the Convention.Today, more than 140 countries areparties to the Law of the Sea Convention.NATIONAL SECURITY CONSIDERATIONSU.S. military operations depend on navalmobility. By codifying navigational andoverflight freedoms long asserted by theUnited States, the Convention improvesaccess rights in the oceans for our armedforces, reducing operational burdens andhelping avert conflict. Historically, the U.S. Navy was required tocontend with widely varying and excessivePolicy Brief #137 August 2004POLICY BRIEF2David B. Sandalow is ascholar in the ForeignPolicy Studies Program atthe Brookings Institution.He is a former assistantsecretary of state foroceans, environment,and science.claims by coastal nations concerningaccess to the oceans. In the 1940s, forexample, Chile asserted the right to controlaccess by all vessels within two hundredmiles of its coast. Later, Indonesia asserteda similar right with regard to all watersbetween its many islands. These claims and many others are effec-tively resolved by the Convention, whichrecognizes navigational and overflightfreedoms within 200-mile exclusiveeconomic zones and through key interna-tional straits and archipelagoes. TheConvention also recognizes rights ofpassage through territorial seas, withoutnotice and regardless of means ofpropulsion, as well as navigational andoverflight freedoms on the high seas. The results include less need for militaryassets to maintain maritime access rightsand reduced risk of conflict. However, the failure of the United
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