Does the Law of the Sea Threaten America's Sovereignty?

Off center stage in Washington this fall a debate is taking place over the ratification of the United Nations Convention on the Law of the Sea. While ostensibly a debate over national security and commerce, at its most profound level it is a debate about sovereignty and about assessments of American power in the world today.

From the 17^th to the mid-20^th centuries the "freedom of the seas" doctrine governed international maritime law. It said that all waters beyond three nautical miles from shore (the distance of a canon shot) were considered international, free to all and belonging to no one. But with the advent of deep water exploration technology, with growing concern over fish stocks, and especially with the discovery of offshore oil and seabed mineral deposits, nations began to expand their territorial claims in an effort to control offshore economic resources.

By the mid-1960s, only 25 nations still recognized the three mile limit; 66 more had unilaterally moved it to 12 miles; while eight claimed 200 miles. The U. S. claimed the entire continental shelf.

These moves affected our national security, as well as our commerce. The most critical points in nautical navigation are the half-dozen or so choke points between land masses, such as the Strait of Hormuz at the mouth of the Persian Gulf and the Mallaca Strait connecting the Indian Ocean and the South China Sea. These narrow passageways, through which flow the bulk of the world's oil and trade and also our warships- and over which fly our air force and spy planes- are now being claimed by their abutting countries, thus creating legal uncertainty for our military and commerce.

It is not surprising then that, starting in the 1950s, our Defense Department joined with our commercial interests and other nations to develop a new legal framework for determining the rights and responsibilities of coastal nations. In 1982 the Convention on the Law of the Sea was completed, and in 1994 it entered into force with its ratification by 60 nations. Today it is recognized by 155 countries, with America being the only major holdout.

Historically, our refusal to participate in an important international agreement would significantly undermine its effectiveness. But on this issue, the world has gone on without us. The International Seabed Authority, created by the Convention, has proceeded to resolve international boundary disputes, to recognize continental shelf claims, and to grant commercial concessions for the exploration and extraction of deep sea minerals- all without the participation of the U.S.

As a result, U.S. companies have not been able to gain deep-sea exploration contracts or to ensure the protection of vital undersea telecommunication cables; Russia's claim to the seabed under the North Pole is advancing; and the Navy's right of passage through narrow land masses remains in legal limbo, as does the Air Force's right of overflight.

It would seem, given the Convention's benefits, that U.S. ratification would be a "no brainer," but it is not. For over a decade its approval has been held up by several senators who see ratification as a diminution of national sovereignty and as an abandonment of private property rights. In truth, they are partially correct.

Under the terms of the Convention, power to distribute potential deep-sea mineral wealth is given to the International Seabed Authority (ISA). This new agency has the power to make rules, to grant commercial contracts, and even to levy fees and royalties upon businesses, without the consent of any national legislature, including our Congress. Moreover, its dispute resolution process is in the hands of international tribunals not composed of a majority of American judges.

Should we choose to join, the Convention documents contain safeguards guaranteeing the U.S. a choice of dispute resolution forums and a seat on the ISA's governing council, thus providing us with influence. It does not, however, provide the US with a UN Security Council-like veto over ISA actions.

But what the treaty's opponents fail to admit is that in other spheres of activity, particularly in the realm of trade, we have already, and repeatedly, relinquished portions of our nation's independence of action and our right of veto. Bi-lateral and multi-lateral trade agreements ratified by Congress have frequently required us to give up some rights in order to gain some economic advantages. And in joining the World Trade Organization we subjected ourselves to a similarly independent dispute-resolution process.

Protecting our national sovereignty is a serious issue. Accepting limitations on the rights of our armed services to travel when, where, and how they wish on and over the high seas and accepting the authority of the ISA over the oceans' resources would place additional limits on our traditional sovereign rights. It would also be another tacit acknowledgement of our diminished ability to impose our nation's will on forces in the world that are beyond our control.

As such, ratifying the Law of the Sea Convention will be a hard pill for some to swallow. Not to rise to this challenge, however, will not only continue the uncertainties that face our military and commerce today, but also will continue to isolate us in a world that is rapidly learning to live around, if not without, America.