U.S. Position on the U.N. Convention on the Law of the Sea

Published by the Stockton Center for International Law

ISSN 2375-2831

U.S. Position on the U.N. Convention

on the Law of the Sea

Office of the Staff Judge Advocate

97 INT’L L. STUD. 81 (2021)

Volume 97 2021

International Law Studies 2021

The U.S. Position on the U.N. Convention

on the Law of the Sea (UNCLOS)

Office of the Staff Judge Advocate, U.S. Indo-Pacific Command

∗

Prepared by Captain Raul (Pete) Pedrozo, JAGC, U.S. Navy (Ret.); edited by Com-

mander Matthew Wooten, JAGC, U.S. Navy and Lieutenant Commander Miles Young, U.S.

Coast Guard; and approved by Colonel Thomas McCann, U.S. Marine Corps.

The thoughts and opinions expressed are not

necessarily those of the U.S. government,

the U.S. Department of the Navy, or the U.S. Naval War College.

The U.S. Position on UNCLOS Vol. 97

he U.S. position on the 1982 U.N. Convention on the Law of the Sea

(UNCLOS) is set forth below.

The Convention. UNCLOS, together with its Part XI Implementing Agree-

ment (IA),

establishes a comprehensive set of rules governing the uses of

the world’s oceans, including the airspace above and the seabed and subsoil

below. After decades of dispute and negotiation, the Convention reflects

consensus on the extent of jurisdiction that States may exercise off their

coasts and allocates rights and duties among all States. It carefully balances

the interests of coastal States in controlling resource activities off their coasts

and the interests of all States in protecting the freedom to use the oceans

without undue interference. UNCLOS and the Part XI IA have both entered

into force and currently have 168 and 150 Parties, respectively.

Despite be-

ing a major participant in the negotiation process, the United States did not

sign the Convention when it was opened for signature in 1982 and is cur-

rently not a Party to UNCLOS or Part XI IA.

President Reagan’s Objections. Upon the adoption of the Convention in

1982, the United States and other industrialized nations declined to sign or

ratify UNCLOS, though they supported most of its provisions, because they

could not accept the Part XI regime established to govern deep seabed min-

ing in areas beyond the continental shelf. Specifically, the United States iden-

tified the following problems with Part XI: (1) provisions that would actually

deter future development of deep seabed mineral resources, when such de-

velopment should serve the interest of all countries; (2) a decision-making

process that would not give the United States or other industrialized nations

a role that fairly reflects and protects their interests; (3) provisions that would

allow amendments to enter into force for the United States and other nations

without their approval; (4) stipulations relating to mandatory transfer of pri-

vate technology and the possibility of national liberation movements sharing

in monetary benefits from deep seabed mining; and (5) the absence of as-

sured access for future qualified deep seabed miners to promote the devel-

opment of these resources.

1983 U.S. Ocean Policy Statement.

Following adoption of the Conven-

tion in 1982, it has been the policy of the United States to act in a manner

consistent with its provisions relating to traditional uses of the oceans and

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to encourage other countries to do likewise. Since the end of World War II,

the United States has supported efforts to develop a widely recognized legal

order that will, inter alia, facilitate peaceful, international uses of the oceans

and provide for equitable and effective management and conservation of

marine resources. Therefore, although the United States did not sign UN-

CLOS, it recognized that the Convention contains provisions with respect

to traditional uses of the oceans that generally confirm existing maritime law

and practice and fairly balance the interests of all States. Accordingly, in

March 1983, President Reagan announced three decisions to promote and

protect U.S. oceans interests in a manner consistent with the fair and bal-

anced results in UNCLOS and customary international law.

First, the President declared that the United States would “accept and

act in accordance with the balance of interests relating to traditional uses of

the oceans—such as navigation and overflight.” In return, the United States

would recognize the rights of other States in their coastal waters, as reflected

in UNCLOS, so long as coastal States recognized the U.S. and other nations’

rights and freedoms under international law. Second, the President indicated

that the United States would “exercise and assert its navigation and overflight

rights and freedoms on a worldwide basis in a manner that is consistent with

the balance of interests” reflected in UNCLOS. However, the President

warned that the United States would not “acquiesce in unilateral acts of other

States designed to restrict the rights and freedoms of the international com-

munity in navigation and overflight and other related high seas uses.” Third,

the President proclaimed U.S. sovereign rights and jurisdiction over a 200-

nautical mile (nm) Exclusive Economic Zone (EEZ) consistent with the pro-

visions of UNCLOS.

Of note, the Proclamation specifically provides that

“all States enjoy the high seas freedoms of navigation, overflight, the laying

of submarine cables and pipelines, and other internationally lawful uses of

the sea,” within the EEZ.

Part XI Implementing Agreement. Recognizing that UNCLOS would not

receive universal acceptance without modifications to Part XI, the UN Sec-

retary-General convened a series of informal consultations between July

1990 and July 1994, which resulted in the adoption of the Part XI IA. Article

2 provides that UNCLOS and the IA shall be interpreted and applied to-

gether as a single instrument.

The legally binding changes set forth in the

IA met all U.S. objections to Part XI, and as a result, the United States and

all other major industrialized nations signed the IA.

The U.S. Position on UNCLOS Vol. 97

Transmittal to the Senate for Advice and Consent. The President has the

power, by and with the advice and consent of the Senate, to make Treaties,

provided two thirds of the Senators present concur.

The United States has

basic and enduring national interests in the oceans and has consistently taken

the view that the best way to protect these interests is through a widely ac-

cepted international framework governing uses of the sea. Accordingly, with

the successful modifications to Part XI, President William Clinton

The Part XI Implementing Agreement

(1) Overhauls the Part XI decision-making procedures to accord the

United States, and other nations with major economic interests at stake,

adequate influence over future decisions on possible deep seabed min-

ing;

(2) Guarantees the United States a seat on the critical executive body

and requires a consensus of major contributors for financial decisions;

(3) Restructures the deep seabed mining regime along free market prin-

ciples and meets the U.S. goal of guaranteed access by U.S. firms to deep

seabed minerals on the basis of reasonable terms and conditions; (4)

Eliminates mandatory transfer of technology and production controls;

(5) Scales back the structure of the International Seabed Authority

(ISBA), which administers the mining regime, and links the activation

and operation of institutions to the actual development of concrete

commercial interest in seabed mining;

(6) Together with its allies, the United States could block the Enterprise,

the ISBA’s operating arm, from being activated, and any mining activi-

ties conducted by the Enterprise are subject to the same requirements

that apply to private mining companies;

(7) Does not require States to finance the Enterprise, and subsidies in-

consistent with the General Agreement on Tariffs and Trade are pro-

hibited; grandfathers the seabed mine site claims established on the basis

of the exploration work already conducted by companies holding U.S.

licenses; and

(8) Strengthens the provisions requiring consideration of the potential

environmental impacts of deep seabed mining.

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transmitted UNCLOS and the Part XI IA to the Senate for advice and con-

sent on October 7, 1994.

Some of the benefits of the Convention identified by the President in-

clude: (1) UNCLOS advances U.S. interests as a global maritime power by

preserving the right of the U.S. military to use the world's oceans to meet

national security requirements and of commercial vessels to carry sea-going

cargoes; (2) UNCLOS advances U.S. interests as a coastal State by providing

for a 200-nm EEZ; (3) UNCLOS promotes continuing improvement in the

health of the world's oceans; (4) UNCLOS establishes clear criteria and pro-

cedures to promote access to marine areas, including coastal waters, for ma-

rine scientific research activities; (5) UNCLOS fairly balances the respective

interests of coastal and maritime States; and (6) UNCLOS’s dispute settle-

ment provisions provide mechanisms to enhance compliance by Parties with

its provisions.

The President’s transmittal letter also highlights the reforms to Part XI

achieved by the IA, which fundamentally changes the Convention’s deep

seabed mining regime. Accordingly, the President recommended that the

Senate give early and favorable consideration to the Convention and to the

IA and give its advice and consent to accession to the Convention and to

ratification of the IA. Despite widespread bipartisan support for UNCLOS,

the Senate Foreign Relations Committee (SFRC) did not hold hearings on

the Convention in 1994.

Senate Hearings. President George W. Bush reinvigorated efforts to join

the Conventions in 2004. In March, the SFRC, under new leadership, held

hearings and recommended unanimously that the full Senate give its advice

and consent to accession to the Convention and ratification of the Agree-

ment.

The full Senate did not vote, however, on the Committee’s recom-

mendation. Since the full Senate took no action, Senate rules required the

return of the Convention and the IA to the SFRC at the end of the 108

Congress.

On May 19, 2007, President Bush urged the Senate to approve UNCLOS

during the first session of the 110th Congress, stating that: “joining [the Con-

vention] will serve the national security interests of the United States, includ-

ing the maritime mobility of our armed forces worldwide. It will secure U.S.

sovereign rights over extensive marine areas, including the valuable natural

resources they contain. Accession [to the Convention] will promote U.S. in-

terests in the environmental health of the oceans. And it will give the United

States a seat at the table when the rights that are vital to our interests are

The U.S. Position on UNCLOS Vol. 97

debated and interpreted.”

Once again, the SFRC held additionally hearings

and recommended that the full Senate give its advice and consent.

Not-

withstanding the President’s strong support, the full Senate did not take up

the matter during the 110th Congress.

UNCLOS was debated again during the 112th Congress. On May 23,

2012, Secretary of State Hilary Clinton, Secretary of Defense Leon Pan-

etta, and Joint Chiefs of Staff Chairman General Martin Dempsey testified

before the SFRA and urged swift ratification of UNCLOS. On June 14,

2012, the SFRC hosted a “24 Star” hearing where six four-star generals and

admirals testified in support of UNCLOS accession. Finally, on June 28,

2012, the U.S. Chamber of Commerce, the American Petroleum Insti-

tute, the National Association of Manufacturers, and Verizon Communica-

tions testified before the SFRC arguing that joining the treaty would advance

U.S. economic interests.

Despite this overwhelming support, Republican

opposition doomed U.S. accession and ratification, as thirty-four Republican

Senators signed a letter to the Chairman of the SFRC indicating that they

would vote against U.S. accession, effectively killing Senate action on the

Convention in the 112th Congress.

Opposition to UNCLOS. Opponents to UNCLOS argue that the costs

associated with joining the Convention outweigh the benefits, and Article

309

forbids States to submit reservations or exceptions exempting itself

from the Convention’s controversial provisions. For example, the conserva-

tive Heritage Foundation argued that: (1) if it joins the Convention, the

United States “will be required . . . to transfer royalties generated from hy-

drocarbon production of the U.S. ‘extended continental shelf’ (ECS) to the

International Seabed Authority for redistribution to developing and land-

locked countries;” (2) the United States does not have to be a Party to UN-

CLOS in order to exploit its ECS; (3) the United States does not have to join

the Convention to mine the deep seabed; (4) “U.S. accession . . . would ex-

pose the . . . [United States] to lawsuits regarding virtually any maritime ac-

tivity . . .” which would be expensive to defend, and “any adverse judgment

rendered by an UNCLOS tribunal would be final, could not be appealed,

and would be enforceable in U.S. territory;” and (5) the United States does

not have to be a Party to UNCLOS to “protect and preserve its navigational

rights and freedoms” because the navigational provisions of UNCLOS cod-

ify customary international law that is binding on all nations.

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Department of Defense Support. UNCLOS supports implementation of

the National Security Strategy, provides legal certainty in the world’s oceans,

and preserves essential navigation and overflight rights. Becoming a Party to

UNCLOS would help preserve the Department of Defense's ability to move

forces on, over, and under the world’s oceans, whenever and wherever

needed. UNCLOS establishes stable maritime zones; codifies innocent pas-

sage, transit passage, and archipelagic sea lanes passage rights; recognizes

unrestricted military activities on the high sea; works against “jurisdictional

creep” by preventing coastal States from expanding their own maritime

zones; and reaffirms sovereign immunity of warships, auxiliaries and govern-

ment aircraft.

The U.S. Position on UNCLOS Vol. 97

1. Agreement Relating to the Implementation of Part XI of the United Nations Con-

vention on the Law of the Sea of 10 December 1982, July 28, 1994, entered into force July 28,

1996, 1836 U.N.T.S. 3, 33 I.L.M. 1309 (1982) [hereinafter Part XI IA].

2. Status of the Convention and of the Related Agreements, https://www.un.org/

Depts/los/.

3. Statement on United States Participation in the Third United Nations Conference

on the Law of the Sea, Jan. 29, 1982, https://www.reaganlibrary.gov/research/

speeches/12982b; Statement on United States Actions Concerning the Conference on the

Law of the Sea, Jul. 9, 1982, https://www.reaganlibrary.gov/research/speeches/70982b.

4. Statement on United States Oceans Policy, Mar. 10, 1983, https://www.reaganli-

brary.gov/archives/speech/statement-united-states-oceans-policy.

5. Proclamation 5030—Exclusive Economic Zone of the United States of America,

Mar. 10, 1983, https://www.reaganlibrary.gov/research/speeches/31083d.

6. Id.

7. Part XI IA, supra note 1, art. 2.

8. U.S. Constitution, art. II, sec. 2.

9. S. Treaty Doc. 103-39, United Nations Convention on the Law of the Sea, with

Annexes, and the Agreement Relating to the Implementation of Part XI of the United Na-

tions Convention on the Law of the Sea, with Annex, 103rd Cong., 2nd Sess., Oct. 7, 1994.

10. S. Exec. Rpt. 108–10, United Nations Convention on the Law of the Sea, Report

to accompany Treaty Doc. 103–39, 108th Cong, 2nd Sess., Mar. 11, 2004.

11. S. Exec. Rpt. 110–9, Convention on the Law of the Sea, Report together with Mi-

nority Views to accompany Treaty Doc. 103–39, 110th Cong., 1st Sess., Dec. 19, 2007.

12. Id.

13. S. Hearing 112–654, The Law of the Sea Convention (Treaty Doc. 103–39), Hearing

Before the Committee on Foreign Relations, United States Senate, 112th Cong., 2nd Sess.,

May 23, June 14, and June 28, 2012.

14. Julian Ku, US Will Not Join the Law of the Sea Treaty (At Least Not This Year), O

PINIO

JURIS, (July 16, 2012), http://opiniojuris.org/2012/07/16/us-will-not-join-the-law-of-the-

sea-treaty-at-least-not-this-year/.

15. United Nations Convention on the Law of the Sea art. 309, Dec. 10, 1982, 1833

U.N.T.S. 397, provides “no reservations or exceptions may be made to this Convention

unless expressly permitted by other articles of this Convention.”

16. Steven Groves, The Law of the Sea: Costs of U.S. Accession to UNCLOS, T

HE HERIT-

AGE

FOUNDATION (June 14, 2012), https://www.heritage.org/testimony/the-law-the-sea-

costs-us-accession-unclos.

17. The Convention on the Law of the Sea, N

AVY JAG, https://www.jag.navy.mil/or-

ganization/code_10_law_of_the_sea.htm.