The United States is not a Party to the 1982 UN Convention on the Law of the Sea (UNCLOS) although this multilateral treaty benefits virtually all US national interests. The reasons for the United States not joining the Convention are rooted in the US domestic political context where the US Senate has not acted for several decades to give its advice and consent as required by the US Constitution for the United States to ratify the Convention. UNCLOS in almost all respects reconciles the interests of both coastal States and user States in the global oceans. Indeed, this seminal reconciliation was the most important outcome of the Third UN Conference on the Law of the Sea (Conference).

UNCLOS Benefits to US Interests

The US has a good argument for asserting that it would benefit as much as any nation from accession to the Convention. The Convention confers on the United States the world’s largest 200 nautical mile (nm) Exclusive Economic Zone (EEZ) granting sovereign rights to the living and non-living resources therein. In addition, the US is blessed with the Atlantic and Pacific oceans on each side and the Arctic Ocean in the north. Each of these oceans has continental shelves that contain vast oil and gas deposits, especially in the Gulf of Mexico. Even more significantly for the United States is a satisfactory balancing of the interests of coastal States and user States on the vital issues of innocent passage in a settled 12 nm territorial sea limit and a transit passage regime through and overs straits used for international navigation. Freedom of navigation and overflight also prevail in the EEZ. US industries such as those dealing with petroleum, hard minerals, fisheries, and shipping support US adherence to the Convention as do our major environmental organizations given UNCLOS protection and preservation for the marine environment. Objectively, the International Seabed Authority (ISA) has remained faithful to its mandate while the International Tribunal for the Law of the Sea (ITLOS) has gotten more active in settling disputes with each passing year. The Commission on the Limits of the Continental Shelf (CLCS) is overwhelmed but since the US is not even eligible to make submissions to it, delay is not a great concern.

The United States formerly was a leader in ocean law and policy, especially at the Third Conference and in the necessary revisions to the deep sea bed regime. Sadly the United States has lost its global leadership role in the law of the sea.

Background of UNCLOS in the US Political Arena

A page of history is worth a volume of logic with respect to the handling of UNCLOS in the US political system. Recall that President Ronald Reagan took office in 1981 and UNCLOS was concluded in 1982. With the change in US Administration came a sharp turn toward conservative political leadership. At this stage of the negotiations, the text of the Convention was agreed in most respects but the deep seabed mining regime was highly unsatisfactory to the United States and most other industrialized States. The Reagan Administration decided that the United States would not become a Party since the Convention does not allow reservations and Part XI was decidedly unacceptable. The objectionable provisions were subsequently modified by an Agreement relating to the implementation of Part XI of the Convention. This procedurally innovative Agreement was adopted in 1994 just prior to the entry into force of the original Convention. On October 7, 1994 President Clinton transmitted the Convention as fixed to the US Senate seeking its advice and consent as required by the US Constitution. Since 1994 every subsequent Administration (whether Republican or Democratic) has favored US ratification of UNCLOS. The hold-up has been and is in the US Senate and its rigid procedures.

Peculiarities of US Senate Procedures

Not only does the US Constitution require Senate advice and consent for the United States to become a Party to a treaty but also the concurring vote must be by at least 2/3rds of the Senator present on the floor. This is likely to be 67 Senators in the case of UNCLOS. Under Senate rules, if a treaty is still pending on the Senate calendar at the end of a Congressional session, the treaty is referred back to the Foreign Relations Committee. UNCLOS hearings were held in the Committee in 2004 and 2007 but the treaty was not considered by the full Senate in either case. The reason is that the Convention was not given floor time by the then Majority Leader, a Republican in 2004 and a Democrat in 2007.

Various Chairmen of the Senate Foreign Relations Committee over the past several decades have held contrasting views on the merits of UNCLOS. In the early years, Senator Helms was strongly opposed to the Convention giving it a reputation as “controversial”. Later Chairmen such as Senator Lugar (a Republican) and Senator Kerry (a Democrat) actively supported UNCLOS passage given that the deep sea bed regime had been redone. Despite the removal of the undesired aspects of UNCLOS from the US point of view, the then Senate Majority Leader has in each case determined that UNCLOS was not sufficiently pressing or important enough to warrant the amount of Senate floor time expected for debate. The reason for the determinations was that UNCLOS floor time would reduce floor time for other matters the Majority Leader wanted to take up.

From its inception in the Reagan era, UNCLOS got off to a bad start. Senate floor time for debate was estimated to take at least a week and maybe longer. The time estimate was and is based on opposition expected from upwards of several dozen conservative Republican Senators. So far, no Majority Leader and lately, no Foreign Relations Committee Chair has deemed the value of the increment between joining and not-joining as sufficient to justify pushing for floor time. And no President has offered compelling political trade bait. Those closely following developments in the ocean see value in locking in law the many favorable rights and benefit in the Convention for the United States. Proponents worry about the risks of erosion in ocean law especially when a particular Administration does not actively assert State Practices that protect US national interests.

Worry about the Future of UNCLOS

There are also grounds for worry about the future course of the Convention. We see deep sea bed-like debate stirring in the UN General Assembly with respect to generic resources beyond national jurisdiction. Again unrealistic high expectations of grand new riches are promised for developing nations. We heard similar sentiments in the 1970’s and there are still no profits after 50 years to share from the development of “common heritage” hard minerals. Troubling signs surround the Arctic Sunrise and South China Sea cases in ITLOS that suggest that Russia and China are not entirely happy with ITLOS and the Convention. Due to domestic politics, the United States is not even a party to the Convention and the prospects for the US joining are not favorable in the near future. It is worrisome when important States evidence second thoughts about the value of UNCLOS. The global interest in the Rule of Law for over 70% of the earth’s surface may be undermined by emerging challenges to UNCLOS. What UNCLOS provides is not perfect but it is far better than chaos at sea.

Myron H. Nordquist is Associate Director and Editor at the Center for Oceans Law and Policy, University of Virginia School of Law