Chapter 11: State Sovereignty & the LOSC

State Sovereignty and the LOSC

Background & Development of the LOSC

The first UN Conference on the Law of the Sea was held in 1958. The Conference resulted in four conventions, all of which have been signed and ratified by the U.S. These conventions addressed: the territorial sea and contiguous zone, the high seas, the continental shelf, and fishing and conservation of living resources of the high seas.

The U.S. government has consistently expressed the vi

ew that with a few exceptions, most of the articles of the LOSC represent a codification of customary international law and existing State practice. During their development and ratification, the 1958 conventions were also interpreted to reflect customary international law.

The second Conference on the Law of the Sea convened only two years later, but concluded without a treaty agreement. During the 1960s, the international community developed a growing consensus toward recognizing the rights of coastal States to exclusive control over fishing zones and the continental shelf. In 1966, President Lyndon B. Johnson referred to the deep sea and the seabed as the legacy of all humans. The following year, the Ambassador to the UN from Malta, Arvid Pardo, presented a proposal to the UN General Assembly declaring that the seabed should be part of the common heritage of mankind. These remarks ignited international discussion about the management of and jurisdiction over deep sea resources.
For more about the provisions of the LOSC regarding the deep seabed and the conservation and management of the living resources of the high seas, see Chapter Two: Maritime Zones and Chapter Seven: The LOSC and the Environment.

In 1970, the Montevideo Declaration on the Law of the Sea was concluded, which recognized the right of coastal States to avail themselves of the natural resources of the sea adjacent to their coasts. 1 The international debate regarding the right to manage, exploit, and explore the resources of the deep sea was also manifest in a third Conference on the Law of the Sea, and formed the foundation for the definitions of the EEZ as well as subsequent negotiations regarding the exploration and exploitation of the deep seabed. The third Conference was held between 1973 and 1982, by which time more than 150 States had participated in the negotiations. For further background on the historical development of the LOSC, see Chapter One: Customary International Law and the Adoption of the Law of the Sea Convention.

The U.S. played a central role in the development and substance of the negotiations at the third Conference, only to ultimately voice strong objections to certain aspects of the agreement and vote against its adoption, principally due to concerns regarding Part XI of the Convention described in more detail below.

The U.S. has not ratified the Convention. Since the LOSC was adopted, 168 parties have ratified it. The absence of the U.S. from the list of participating States affects not only U.S. national military and commercial interests, but also limits the ability of the U.S. to influence decisions reached by the Convention’s dispute resolution mechanisms that can serve as guidance for future interpretation of important issues regarding the law of the sea.

The dispute resolution mechanisms of the LOSC provide important legal guidance regarding the oceans, the delimitation of territorial waters, the governance of shared resources, and the conduct of military and commercial activity at sea. These decisions will influence future cases regarding common space, resources, and freedom of navigation. As described in Chapter Nine: LOSC Dispute Resolution Provisions, the dispute resolution mechanisms also provide States with great flexibility in how to resolve disputes regarding the Convention, while providing for compulsory dispute resolution over many issues where States are unable to settle a dispute.

Objections to U.S. ratification of the LOSC have largely focused on its infringement of the sovereignty of participating States, particularly due to Part XI. Part XI concerns management of the deep seabed, referred to as the Area, and provides for dispute resolution through the Seabed Disputes Chamber.2 Part XI declares the deep seabed as belonging to the common heritage of mankind, invoking principles of common heritage which include non-appropriation, common management, and sharing of benefits derived from the Area. Part XI also establishes the International Seabed Authority (ISA) to oversee a body referred to as the Enterprise in exploration and exploitation of the deep seabed in compliance with the principles of common heritage agreed upon in the LOSC.3

The U.S. Position Regarding the LOSC

Despite being a central participant in the negotiation of the 1958 Conventions and the 1982 Law of the Sea Conventions, the U.S. expressed significant reservations regarding the LOSC as negotiations were drawing to a close. These concerns focused primarily on Part XI, regarding the exploitation of deep sea resources, the principle of common heritage, requirements for technology transfer to developing nations, and acceptance of the jurisdiction of an international decision-making body for disputes concerning the resources, territory, and activities of the U.S.

President Ronald Reagan declared multiple objections to the LOSC. The President was primarily concerned with a potential lack of influence by the U.S. on the decisions and activities of the ISA. He also concluded that the LOSC assigned too much authority to the ISA, allowing the ISA to make regulatory decisions about the exploitation and exploration of the Area which could constrain U.S. activities and impose financial losses on U.S. businesses involved in exploitation and exploration. Of additional concern was the possibility that U.S. companies or government entities could be required to share proprietary technology with competitors. Finally, the President did not want to agree to surrender U.S. sovereignty by submitting to the jurisdiction of an international decision-making body through the compulsory dispute resolution mechanism.

The U.S. objections to the LOSC initially resulted in some degree of uncertainty over the future of the treaty. Following the lead of the U.S., many other States also declined to ratify the Convention. In order to address the concerns preventing the U.S. and other States from joining the LOSC, in 1994, the UN General Assembly (UNGA) negotiated what became known as the Agreement Relating to the Implementation of Part XI of the United Nations Law of the Sea (hereafter referred to as the Agreement). The Agreement is intended to be interpreted along with Part XI of the Convention. In the case of any conflict or contradiction between the texts or their interpretations, the text of the Agreement is to prevail. Any States ratifying the Convention following implementation of the Agreement are also bound by the Agreement. States which ratified the Convention prior to the Agreement may consent to the Agreement separately.

Following the UNGA’s vote, most developed States which had objected to the LOSC ratified it. Shortly after the 1994 Agreement, the U.S. became a signatory to the Agreement4, but this did not lead to subsequent ratification. The LOSC was submitted to the U.S. Senate for ratification in October of 1994 and the Senate has declined to ratify it. The LOSC entered into force in November 1994. The official position of the U.S. has been that the LOSC generally reflects an embodiment of existing customary international law with the exception of the U.S. objections noted above.

Arguments in Favor of U.S. Ratification of the LOSC

Since entering into force in 1994, the LOSC has become an increasingly important part of the international legal order. Adhered to by the majority of States, the LOSC provides the only framework within international law for resolving contentious issues such as freedom of navigation and fishing rights in the South China Sea.

The LOSC Reflects and Codifies Critical U.S. Security Interests

The LOSC documents the navigational rights of customary international law that are essential to the movement of global commerce and the U.S. armed forces. In addition to freedom of navigation on the high seas, the Convention also affirms the right of innocent passage through the territorial seas of foreign States and the right of transit passage through international straits. See Chapter Three: Freedom of Navigation for additional information on this topic. These rights are critical to U.S. military and intelligence operations as well as the operations of U.S. commercial interests. In addition to recognizing the sovereignty of a State over its territorial sea, the Convention also recognizes the sovereignty of that State over the seabed and subsoil below and airspace above the territorial sea, crucial aspects of U.S. commercial and environmental interests. During negotiations of the LOSC, the U.S. delegation fought hard for recognition of these rights, and succeeded along other States in formally codifying them in the Convention. The administrations of Presidents Clinton and  George W. Bush both strongly advocated for the Senate to ratify the LOSC, noting that the 1994 Agreement thoroughly addresses the objections of the U.S. to the 1982 Convention and citing the importance of U.S. leadership in shaping international law. In 2007, Gordon England, U.S. Deputy Secretary of Defense, advocated ratification to the U.S. Senate.

By joining the Convention, we provide the firmest possible legal foundation for the rights and freedoms needed to project power, reassure friends and deter adversaries, respond to crises, sustain combat forces in the field, and secure sea and air lines of communication that underpin international trade and our own economic prosperity.5

The LOSC enhances U.S. interests by recognizing and clearly delineating freedom of navigation rights and U.S. rights to manage and exploit its resources. The Convention also codifies the sovereign right of the U.S. to conduct military operations on the high seas and within EEZs, the right of sovereign immunity, and right of visit for warships and government and military noncommercial vessels.

Article 298 of the LOSC proclaims that States can declare in writing the intention to remove disputes regarding military activities and law enforcement activities regarding the exercise of sovereign rights or jurisdiction from the compulsory jurisdiction described in Section 2 of Part XV of the LOSC.6 The U.S. has also asserted its understanding that under article 298(1)(b), each State Party has the exclusive right to determine whether its activities are “military activities” and that such determinations are not subject to review.7 The U.S. has outlined a Cooperative Strategy for 21st Century Seapower, setting goals for U.S. Navy, Marine Corps, and Coast Guard operations.8 The core aims of this strategy are defending the homeland, deterring conflict, responding to crises, defeating aggression, protecting the maritime commons, strengthening partnerships, and providing humanitarian assistance and disaster response. The strategy also recognizes the importance of joint cooperation with allies and partners, almost all of whom have ratified the LOSC. U.S. ratification of the LOSC would help align the underlying framework for that cooperation.

The LOSC Protects U.S. Economic and Commercial Interests

U.S. commercial interests would also benefit from the legal clarity provided by the Convention regarding the EEZ. Major U.S. companies in significant industries like oil, shipping, and fishing are advocates for U.S. ratification of the LOSC. It would benefit these commercial interests and those of the U.S. to have an EEZ that is recognized within the legal framework of the Convention. The LOSC recognizes the exclusive sovereign right of a State to all of the resources under and on the seabed as well as in the ocean within 200 nautical miles of its coastlines, which is a tremendous commercial asset.9 With the largest EEZ in the world, the U.S. stands to benefit more than any other State by establishing recognition of its right to manage, exploit, and explore its own resources within the LOSC framework.

The Convention also offers coastal States the potential to extend legal recognition for their continental shelves beyond 200 nautical miles through the Commission on the Limits of the Continental Shelf.10 Without being a party to the Convention, the U.S. will forfeit the opportunity to obtain international recognition of this extension of its sovereign right to access and manage its own resources.

The LOSC Strengthens Protection of the Oceanic Environment

Another aim of the Cooperative Strategy for 21st Century Seapower is protection of environmental resources. The U.S. recognizes the importance of safeguarding the world’s rich environmental resources for sustainable use by future generations. For more information about the environmental protection provided for in the Convention, including the legal framework set up to protect the oceans and their resources, see Chapter Seven: The LOSC and the Environment.

U.S. Concerns Regarding Part XI of the LOSC have Been Fully Addressed

The 1994 Agreement was intended to address objections from the U.S. and other States to Part XI of the Convention. Presidents from both the Republican and Democratic parties, including President Bill Clinton and President George W. Bush, have advocated for the ratification of the Convention in light of the resolutions made in the Agreement. For example, the 1994 Agreement stipulates that the U.S. is guaranteed a permanent seat on the Council and Finance Committee of the ISA. This seat gives the U.S. the ability to veto any decisions which contradict U.S. national interests.

Failure to Ratify the LOSC Significantly Weakens U.S. Influence

The longer the U.S. waits to ratify the LOSC, the more other States can shape the functioning of the ISA and the scope of its jurisdiction in ways that may or may not be aligned with the interests of the U.S. The ISA has been in existence for two decades, and will continue to exist with or without U.S. participation. Through ratification of the LOSC and participation in the ISA, the U.S. would gain the ability to directly influence ISA decisions about deep sea resources of vast territorial scope.

Failure to ratify the LOSC also precludes the U.S. from participating formally on key bodies interpreting and enforcing the Convention, including the Commission on the Limits of the Continental Shelf and the International Tribunal for the Law of the Sea, the only international venues for disputes relating to the sea. The U.S. can currently only be present at meetings of State parties to the LOSC as an observer without the powers of intervention or participation.

The LOSC is now a critical part of the framework of the international legal order. It is both the substance and the procedure of the international law of the sea. The Convention framework will be used to develop the law in response to situations arising in the future regarding navigational routes, resource management, natural disasters, and the maintenance of State sovereignty. The LOSC is effectively shaping State practice. Despite China’s unlawful maritime claims in the South China Sea, China seeks an interpretation of the Convention that will support and justify its activities, rather than disregarding the LOSC as irrelevant. The highly publicized jockeying for power in these contested waters therefore only augments the relevance of the LOSC and its ability to influence State practice. If the U.S. continues to decline to ratify the Convention, especially as it is referenced more and more in maritime disputes and as a benchmark for State behavior, U.S. influence on the way the Convention is applied and interpreted will also continue to decline. As a consequence, both the application of the LOSC and customary international law more generally may evolve in ways adverse to U.S. interests.

Arguments Against U.S. ratification of the LOSC

Ratification is Unnecessary to Preserve Core U.S. Interests

A primary argument against U.S. ratification of the LOSC is that the U.S. is effectively already bound by most provisions of the Convention that it would consent to because the U.S. considers those provisions to be a codification of customary international law. Through its signature to the 1994 Agreement and its ratification of the 1958 Conventions, the Executive branch of the U.S. government has expressed agreement with all but one section of the LOSC, Part XI. The Convention can be considered unnecessary as the U.S. is already bound by many of its rules, and already abides
by its own definition of the EEZ. For more about the U.S. EEZ, see Chapter Two: Maritime Zones and Chapter Four: Military Activities in an EEZ. The U.S. also gains the benefit of the observance of these same rules by States that are parties to the LOSC without the need for the U.S. to become a party itself.

History Suggests No Compelling Need for the U.S. to Ratify the LOSC

The U.S. is the world’s dominant naval power and has been for decades. This success has been achieved without U.S. participation in a Convention that would constrain its practice and ability to act. The U.S. has protected its own commercial, military, and environmental interests successfully without formal participation in the LOSC framework. Additionally, relevant commercial maritime activity is protected and
regulated through the U.S. participation in multilateral treaties under the International Maritime Organization, rendering the LOSC unnecessary in combination with these treaties and customary international law.

Ratifying the LOSC Would Erode U.S. Sovereignty

While the Convention would provide formal recognition for U.S. claims over its territory and resources, it also subjects parties to the jurisdiction of the ISA. If the U.S. ratifies the LOSC, the ISA would have the power of decision on a variety of issues relating to the Area vital to U.S. national interests. By creating the ISA, the Convention established institutions with executive and judicial powers that should arguably belong only to national sovereignty. The power granted to the ISA to make decisions that impact sovereign States undermines the independent decision-making authority of national governments.

More generally, the Convention also subjects parties to the jurisdiction of a compulsory dispute settlement mechanism. The requirement to participate in this process would open the possibility for other States to pursue legal action against the U.S. in an effort to constrain or undermine U.S. interests. There is, for example, a risk that the U.S. could be exposed to litigation regarding environmental claims as a party to the Convention. The U.S. should not surrender its sovereignty regarding decisions affecting its own interests to institutions that are not accountable to national sovereignty.

Declining to ratify the LOSC gives the U.S. the ability to affect international law relating to the sea through its own practices and those of other States. As the dominant naval power in the world, the actions of the U.S. have significant influence with respect to the practices of other States and the overall development of customary international law even if the U.S. is not a party to the LOSC. This diminishes the perceived need for the U.S. to participate in and be constrained by the LOSC. Failure to ratify the LOSC has not significantly impacted the U.S. naval dominance of the world’s oceans.

The Current Framework for the U.S.

If the U.S. does not ratify the LOSC, it has claim only to customary international law, the UN Charter, and the agreements regarding the law of the sea that it ratified prior to the development of the LOSC. It does not have recourse to resolve disputes with other State parties through the International Tribunal for the Law of the Sea (ITLOS).

As the framework of the LOSC remains the most significant influence on the development of the law of the sea, the continued absence of the U.S. communicates a lack of dedication to upholding the international legal order. As more decisions are made regarding the law of the sea, the refusal of the U.S. to take its guaranteed seat on the Council of the ISA is a cession of power to States that are party to the LOSC. By not joining, the U.S. takes a backseat in determining international legal practice and allows State parties to the Convention to set the precedent. It is also open to accusation of “hypocrisy,” however groundless, when it seeks to compel compliance by others with the provision of the LOSC.

By some interpretations, the common heritage principle is not part of customary international law, but only part of the LOSC. This means that non-parties are not bound by the common heritage principle. However, the common heritage principle is only effective if all States adhere to it, and the continued objection to this principle by the U.S. undermines the best-functioning legal agreement pertaining to common resources. The U.S. could take advantage of its position as the world’s dominant naval power and as a longtime advocate for the importance of the international legal order and set an example that adherence to common legal principles matters for all countries while also retaining veto power regarding ISA decisions.