The Law of the Sea Convention Is Critical to National Interests

By Pell, Claiborne | Naval War College Review, Autumn 1998 | Go to article overview

The Law of the Sea Convention Is Critical to National Interests


Pell, Claiborne, Naval War College Review


THE CAPTAIN OF EVERY U.S. NAVY SHIP operating in the Persian Gulf as part of the forces poised to deal with Iraq has had close at hand the text of an international agreement designed to promote law and order at sea. This agreement is known as the United Nations Convention on the Law of the Sea.

It has become a bible for those mariners who ply the seas and want to be sure of their rights and obligations as they skirt or approach various nations or go through nearby waters, straits, or other check points.

The Law of the Sea Convention is particularly relevant since the United States Navy operates in or near the Persian Gulf. To get there, our ships must pass through the Strait of Hormuz, which separates revolutionary Iran from Oman, a friendly but fiercely independent state. To reach their stations, our ships must navigate through territorial waters.

The Iranians (who were very difficult during the Carter administration and who continue to support terrorists and might well be actively at odds with us again should any major issue develop) regularly deride us for our failure, so far, to become a party to the Convention. (These complaints take a certain amount of brass, since Iran is not a party either.) Oman, which is a party, also complains about our nonmembership.

Becoming party to the Convention would not resolve U.S. differences with Iran, but it would give legal force to the U.S. position on the right of its warships to transit through Iranian and Omani waters without asking or needing permission.

The treaty was concluded in 1982, at the end of a nine-year conference. It is, in essence, a constitution that guides the use of the 70 percent of the world covered by oceans and seas. Unfortunately, the Convention, as concluded, contained provisions related to deep-sea mining that pleased many developing nations-at the price of offending industrialized states-by holding out the prospect that poorer nations could benefit economically from deep-seabed mining under the watchful control of an international authority. Developed nations intensely disliked this outcome, and no industrialized nation was willing to ratify the Convention containing those deep-seabed mining provisions.

Informal discussions to fix the problem began in 1990 under United Nations auspices. With strong efforts by the Bush and Clinton administrations, an agreement was reached in 1994 that restructured the deep-seabed mining provisions along free market principles, guaranteed access by U.S. firms to deep-seabed minerals under reasonable terms and conditions, eliminated production controls and mandatory transfer of technology, scaled back the administrative organization, and gave the United States the power to protect its interests regarding deep-seabed minerals.

With these changes, most industrialized nations now support the Convention and have ratified. A total of 123 nations are now parties, including most of Europe, Mexico, Brazil, Argentina, South Africa, Australia, New Zealand, China, Japan, the Philippines, Indonesia, and India. Notable nonparties include Canada, Turkey, Israel, and the United States. The treaty entered into force in 1994, ratified by sixty nations.

The Clinton administration sent the Convention to the Senate in 1994 for consent to ratification. Earlier this year, Secretary of State Madeleine Albright listed ratification of the Convention as one of her three top treaty priorities. The Department of Defense wants very much to have the treaty in force. The U.S. Navy, the service most affected by this treaty, is also an avid supporter.

U.S. oceans policy was a major interest of mine throughout my thirty-six-year career in the U.S. Senate. In September 1967 I introduced the first in a series of resolutions that related to oceans policy issues. It called for the negotiation of a treaty that would extend the international legal order for the oceans beyond the then-existing international regime.

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