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HEALTH AND ENVIRONMENT | Law of the Sea: Myths and Facts

MYTHS AND FACTS ABOUT UNCLOS

Myths:

UNCLOS takes away U.S. sovereignty.

President Reagan was opposed to UNCLOS.

UNCLOS forces the U.S. to transfer technology to adversaries.

China could stop U.S. war games and shipping in parts of the Pacific under UNCLOS.

UNCLOS creates an unaccountable international organization to govern the oceans and tax Americans.

UNCLOS will force the U.S. to be under the jurisdiction of an international tribunal.

UNCLOS will put unreasonable, arbitrary caps on the amount of resources we extract and pollution we deposit in the oceans.

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Myth: UNCLOS takes away U.S. sovereignty.

Fact: UNCLOS does not take away U.S. sovereignty. Nothing in UNCLOS makes the U.S. cede sovereignty over any land or maritime territory. In fact, under the treaty, the U.S. gains sovereignty over a large amount of maritime territory and exclusive control over marine resources in a huge area. Under UNCLOS, the U.S. would attain jurisdiction over an additional 3.36 million square miles – greater than the combined area of the lower 48 states.

Myth: President Reagan was opposed to UNCLOS.

Fact: All of President Reagan’s objections to UNCLOS have been addressed. In 1983, President Reagan said that the treaty strongly supported U.S. interests except for one section, which dealt with deep seabed mining. With this in mind, President Reagan directed U.S. agencies to comply with the entire treaty except the part dealing with deep seabed mining. In his Statement on Oceans Policy, he said that the Convention “contains provisions with respect to traditional uses of the oceans which generally confirm existing maritime law and practice and fairly balance the interests of all states.”

Reagan further declared, “First, the United States is prepared to accept and act in accordance with the balance of interests relating to traditional uses of the oceans -- such as navigation and overflight. In this respect, the United States will recognize the rights of other states in the waters off their coasts, as reflected in the Convention, so long as the rights and freedoms of the United States and others under international law are recognized by such coastal states.

“Second, the United States will 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 the convention. The United States will not, however, acquiesce in unilateral acts of other states designed to restrict the rights and freedoms of the international community in navigation and overflight and other related high seas uses.

“Third, I am proclaiming today an Exclusive Economic Zone in which the United States will exercise sovereign rights in living and nonliving resources within 200 nautical miles of its coast [as provided for in UNCLOS]. This will provide United States jurisdiction for mineral resources out to 200 nautical miles that are not on the continental shelf. Recently discovered deposits there could be an important future source of strategic minerals.”

In 1994, U.S. negotiators succeeded in amending the disputed provisions to reflect all of President’s Reagan’s concerns. All of the State Department’s living former Legal Advisors (representing both Democratic and Republican Administrations) signed a letter to that effect. The letter states: “[T]he Reagan Administration’s objection to the LOS Convention, as expressed in 1982 and 1983, was limited to the deep seabed mining regime. The 1994 Implementing Agreement…satisfactorily resolved that objection and has binding legal effect in its modification of the LOS Convention.”

Myth: UNCLOS forces the U.S. to transfer technology to adversaries.

Fact: Nothing in UNCLOS would force the U.S. to transfer technology to anyone. All of the provisions on mandatory technology transfers were amended out of the treaty in 1994. That amendment notwithstanding, UNCLOS explicitly provides that nothing in the treaty requires a country to disclose information that could compromise its national security.

Myth: China could stop U.S. war games and shipping in parts of the Pacific under UNCLOS.

Fact: China could not stop U.S. war games or shipping under UNCLOS, nor is China attempting to do so. Alarmists have said that China is using its artificial islands to claim control over a greater part of the Pacific Ocean. China is making no such claim. If such a claim were to be made, the U.S. would actually be more secure as a member of UNCLOS, which specifically rules such claims are illegal.

Myth: UNCLOS creates an unaccountable international organization to govern the oceans and tax Americans.

Fact: UNCLOS creates an International Seabed Authority (ISA), an organization of countries that neither governs the oceans nor taxes Americans. The ISA has one function: to administer the mining of minerals in the deep sea. No country can perform such a function, since no country has ever asserted sovereignty over the deep sea. Still, proprietary claims on the deep sea must be regulated for industry there to be viable. U.S. Industry groups have lined up to support UNCLOS, because without an ISA to give legal title for mining sites, deep seabed mining is too risky to undertake.

The ISA is accountable to a Council of member states. As a member of UNCLOS, the U.S. could veto any decision that affects the powers or budget of the ISA.

The ISA has no power to levy taxes whatsoever. UNCLOS does contemplate using a portion of the royalties from deep seabed mining to finance the ISA, but all decisions about royalties would first have to survive a U.S. veto, provided the U.S. ratifies UNCLOS.

Under UNCLOS, no other international organization, including the UN, has any authority over the oceans.

Myth: UNCLOS will force the U.S. to be under the jurisdiction of an international tribunal.

Fact: UNCLOS does establish an International Tribunal for the Law of the Sea, but it does not force any nation to appear before the Tribunal. Countries can choose any number of channels through which to resolve their disputes. According to Rear Admiral William L. Schachte, Jr., an expert on maritime law and a supporter of UNCLOS, the U.S. would likely choose two forms of arbitration rather than appear before the Tribunal.

Myth: UNCLOS will put unreasonable, arbitrary caps on the amount of resources we extract and pollution we deposit in the oceans.

Fact: The few UNCLOS provisions that put caps on resource extraction were taken out of the Convention in 1994 by U.S. negotiators. The pollution limits in UNCLOS are extremely reasonable, and geared more toward nations that pollute the ocean heavily than responsible countries like the U.S. Legal experts in the Administration and the Congressional Research Service agree that nothing in UNCLOS would force us to change our current environmental laws, policies, or practices with regard to the ocean.

Last Updated March 9, 2005

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