The Brookings Institution POLICY BRIEF Policy Brief 137 August 2004 Related Brookings Resources 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 and Security Risks Conference at Brookings March 5 2004 Cargo Security Michael O Hanlon Testimony Senate Governmental Affairs Committee March 20 2003 Transcripts for all of the above available at www brookings edu Environmental Governance A Report on the Next Generation of Environmental Policy Donald F Kettl 2002 To receive a weekly e mail about Brookings news events and publications sign up for the Brookings Alert at www brookings edu Law of the Sea Convention Should the U S Join DAVID B SANDALOW he United States has vital interests in the oceans U S national security depends on naval mobility U S prosperity depends on underwater energy resources Ocean fisheries help feed the United States and much of the world On February 25 2004 the Senate Foreign Relations Committee unanimously recommended that the United States accede to the Law of the Sea Convention which sets forth a comprehensive framework of rules for governing the oceans The recommendation followed two hearings in which the committee heard testimony supporting the Convention from the Bush administration the armed services ocean industries and environmental groups among others Following the favorable report from Foreign Relations other congressional committees held hearings at which several lawmakers raised concerns about the treaty The United States should promptly join the Law of the Sea Convention Doing so would help protect U S national security advance U S economic interests and protect the marine environment Prompt action is needed to ensure that the United States is a party by November 2004 when the Convention is open to amendment for the first time T BACKGROUND The Brookings Institution 1775 Massachusetts Ave N W Washington DC 20036 The Convention on the Law of the Sea is sometimes called a constitution for the oceans Among its many provisions the Convention limits coastal nations to a 12 mile territorial sea establishes 200 mile exclusive economic zones requires nations to work together to conserve high seas fisheries and establishes a legal regime for the creation of property rights in minerals found beneath the deep ocean floor All Policy Briefs are available on the Brookings website at www brookings edu POLICY BRIEF Historically rules concerning use of the oceans were established by customary international law a term used to describe practices considered legally required by most nations from time to time The uncertainties inherent in such an approach led in 1958 to the adoption of four conventions on oceans governance The conventions were promptly ratified by the United States and many other countries but soon came to be seen as insufficient In particular during the 1960s the United States became increasingly concerned about the growing number of coastal states asserting control over vast reaches of the oceans New issues including marine pollution gained greater prominence In 1973 negotiations were launched for a comprehensive Convention on the Law of the Sea The Convention was adopted in 1982 Its provisions reflected longstanding U S negotiating objectives including recognition of navigational and overflight freedoms limits on coastal state jurisdiction to a 12 mile territorial sea the establishment of 200 mile exclusive economic zones and rights to the ocean floor to the edge of the continental shelf However the agreement also contained provisions on deep seabed mining at odds with U S interests including requirements for the mandatory transfer of technologies David B Sandalow is a scholar in the Foreign Policy Studies Program at the Brookings Institution He is a former assistant secretary of state for oceans environment and science 2 President Reagan praised the Convention s many positive and very significant accomplishments but declined to sign because of the deep seabed mining provisions In March 1983 President Reagan issued an Ocean Policy Statement announcing the United Policy Brief 137 States s intention to act generally in accordance with the terms of the Convention Further negotiations over the Convention s deep seabed mining provisions were launched in 1990 These talks concluded in 1994 with a new agreement on deep seabed mining that addressed all of the concerns that the Reagan administration had identified a decade earlier Also in 1994 the Convention entered into force after the sixtieth nation joined In October 1994 the Convention was transmitted to the Senate for approval Sen Jesse Helms R N C then chairman of the Senate Foreign Relations Committee declined to hold hearings After Helms retired in January 2003 Sen Richard Lugar R Ind the new chair of Foreign Relations held two hearings on the treaty On February 25 2004 the Senate Foreign Relations Committee unanimously recommended that the United States join the Convention Today more than 140 countries are parties to the Law of the Sea Convention NATIONAL SECURITY CONSIDERATIONS U S military operations depend on naval mobility By codifying navigational and overflight freedoms long asserted by the United States the Convention improves access rights in the oceans for our armed forces reducing operational burdens and helping avert conflict Historically the U S Navy was required to contend with widely varying and excessive August 2004 POLICY BRIEF claims by coastal nations concerning access to the oceans In the 1940s for example Chile asserted the right to control access by all vessels within two hundred miles of its coast Later Indonesia asserted a similar right with regard to all waters between its many islands These claims and many others are effectively resolved by the Convention which recognizes navigational and overflight freedoms within 200 mile exclusive economic zones and through key international straits and archipelagoes The Convention also recognizes rights of passage through territorial seas without notice and regardless of means of propulsion as well as navigational and overflight freedoms on the high seas The results include less need for military assets to maintain maritime access rights and reduced risk of conflict However the failure of the United States to join the Law of the Sea Convention puts these gains
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