Law of the Sea Treaty Enters into Force

Date November 16, 1994

As technological and political developments in the twentieth century led ocean-bordering nations to claim as their territory increasing areas of the waters extending from their shores, the Law of the Sea Treaty was developed to balance the need for international access to the world’s oceans with individual states’ needs to control the areas contiguous to their shorelines.

Locale New York, New York

Key Figures

• Arvid Pardo (1914-1999), ambassador from Malta to the United Nations
• Javier Pérez de Cuéllar (b. 1920), secretary-general of the United Nations, 1982-1991
• Ronald Reagan (1911-2004), president of the United States, 1981-1989

Summary of Event

As the twentieth century opened, virtually all nations recognized that an ocean-bordered country’s territory extended three nautical miles out from the shoreline into the ocean. Outside this narrow band of water, freedom of the seas (including free use of natural resources) was a doctrine extending back for centuries. This began to change in 1945, however, when the United States claimed all the natural resources on its continental shelf and in the waters above the shelf. Shortly after, some countries began claiming that their national boundaries extended twelve miles from shore rather than three.

Although the economic and territorial push into the oceans proceeded slowly, as technology increased the economic value of the resources in the water and seabed contiguous to landmasses, greater and greater claims were put forward. Some countries were content just to expand their zones of economic control. Others made territorial claims of up to two hundred miles from their shorelines. In addition to the possible shipping problems caused by these developments, island nations began claiming all the water between their islands, which included many strategic routes. Minor conflicts arose between traditionally friendly countries, and international tensions increased when more than one country claimed particular mineral-rich areas. In 1958, when the United Nations held its first conference on the sea, 65 percent of the world’s ocean resources were considered to be in international waters. By the time the third U.N. conference on the sea started in 1973, the proportion had decreased to 35 percent.

In the midst of these developments, Arvid Pardo, ambassador to the United Nations from the government of Malta, gave a speech in which he asked that all countries come together to establish a new international agreement to solve the growing problem. Pardo’s speech led not only to movement in this area but also to environmental conferences and multinational treaties such as the one that outlawed the placement of nuclear weapons on the seabed. On November, 16, 1973, the General Assembly of the United Nations voted to establish the Third United Nations Conference on the Law of the Sea. U.N. secretary-general Kurt Waldheim convened the first session of the conference in New York City on December 3, 1973. Waldheim left office just prior to the eleventh and final session, which ended on December 10, 1982. At the final session, the vote to accept the results of the nine-year conference was 130 to 4, with the United States voting in the negative.

President Ronald Reagan announced that he would not sign the resulting Law of the Sea Treaty or submit it to the U.S. Senate for ratification. His concerns about the treaty had to do with both national security and economics. Reagan objected to the treaty’s provisions regarding submarine travel, which required submarines to surface when traveling through certain straits. He also believed that the treaty restricted free enterprise because it provided for keeping deep ocean minerals as a trust for everyone regulated by an international body; Reagan believed that any nation that could develop the technology to mine such minerals should be able to do so unhindered. Reagan did announce, however, that the United States would abide by the principal provisions of the treaty.

The treaty was to go into effect one year after the sixtieth country had ratified it. The ratification process moved slowly, however. Javier Pérez de Cuéllar, who became secretary-general of the United Nations shortly before the treaty was signed in 1982, called together a study group to develop standard interpretations of some controversial provisions of the treaty as a means to speed up the ratification process. With a statement from that group in 1992, the ratification process picked up speed, and in 1993 the sixtieth country ratified it. The Law of the Sea Treaty thus entered into force on November 16, 1994. Additional countries ratified the treaty after a 1998 agreement on deep-sea mining was added. The United States, however, continued to have disagreements with certain provisions; by the early years of the twenty-first century, it was the only one of the world’s major economic powers that had not ratified the treaty.

The Law of the Sea Treaty is an extensive document that attempts to resolve many issues. The principal provisions deal with territorial limits, economic zones, use of the continental shelf, navigation, deep-sea mining, protection of the environment, and mechanisms for settling disputes. The framers of the treaty often had to work out compromises between the developed and the developing countries.

The part of the treaty that deals with territorial limits is both very simple and very complex. The simple definition of “territorial waters” that suffices for most discussions is all waters within twelve nautical miles of the shore. Determining where the shore lies, however, can be quite complicated. The treaty defines how every conceivable type of shoreline affects territorial waters. For example, the land that is exposed at low tide is the point from which the twelve miles is measured, and the line for measurement extends straight across the mouth of a river. The treaty also defines how other types of inlets and islands affect territorial waters, as well as what happens when the open water between two countries measures less than twenty-four miles.

In addition, the treaty defines an area extending up to two hundred nautical miles from shore as a country’s “exclusive economic zone.” As the name implies, within this area the controlling state has exclusive rights to all economic resources as well as scientific research. The state is also charged with the protection of the environment within this area.

Further, the Law of the Sea Treaty includes provisions for landlocked and geographically disadvantaged states to share in excess economic resources of other states. Coastal states, however, have not proclaimed any of their economic resources to be surplus. The economic resources of a continental shelf belong to the coastal state up to 350 miles from the shore, if the shelf extends that far.

The treaty specifies that traditional navigation routes are to remain open to civilian ships even when these go through territorial waters. Certain straits are defined in such a way that military vessels, in addition to civilian ships, may pass through them unhindered by the countries that claim the waters in the straits. This falls under the doctrine of the “right of innocent passage.” The countries that control the territorial waters in these areas may enforce what are essentially traffic laws to ensure the safe and orderly passage of all ships.

On what are called the “high seas,” all nations have rights of navigation and the right to fish and otherwise exploit the natural resources. They also share the responsibility of protecting the environment. The treaty specifically states that all nations should work together to conserve and manage the living resources of the world’s oceans. In many areas of deep ocean, fairly pure mineral nodules lie on the bottom under miles of water. Annex III of the treaty outlines in great detail how minerals taken from the high seas should be used to benefit all nations. Even though no nation had found an economically feasible way to mine these resources by the beginning of the twenty-first century, this is one of the provisions of the treaty to which the United States objected.

In terms of international law, the diverse dispute-resolution mechanisms written into the treaty are often seen as innovative. If the parties to a dispute over provisions of the treaty cannot resolve their differences, the treaty specifies four methods by which they can reach a peaceful resolution. Most treaties include just one recognized method to resolve a conflict if a dialogue does not solve the problem.

Significance

In the midst of the Cold War and increasing disputes between the developed and developing countries, the Law of the Sea Treaty created a foundation for peaceful conflict resolution and use of the ocean’s resources. At a time when many nations were announcing extensive new economic and territorial claims, there was a fear that the concept of international waters might soon disappear, and free trade with it. Efforts in 1958 and 1960 to create an agreement to address these issues did not come close to success; thus, although nine years were required to negotiate it, the Law of the Sea Treaty was a tremendous step forward. Although not all countries have ratified the treaty, its provisions dealing with territorial waters, economic zones, and navigation have become the recognized norms for all. The treaty has thus contributed to a decrease in international tensions and has allowed the orderly development of the ocean’s economic resources.

Bibliography

Churchill, R. R., and A. V. Lowe. The Law of the Sea. 3d ed. Yonkers, N.Y.: Juris, 1999. Covers the basic legal concepts across the breadth of the international treaty.

Freestone, David, Richard Barnes, and David Ong, eds. The Law of the Sea: Progress and Prospects. New York: Oxford University Press, 2006. Collection of essays provides an overview of how the implementation of the treaty has worked and where problems have arisen in adapting it to a changing world.

Strati, Anastasia, Maria Gavouneli, and Nikolaos Skourtos, eds. Unresolved Issues and New Challenges to the Law of the Sea: Time Before and Time After. Boston: Martinus Nijhoff, 2006. Collection of essays focuses on potential weaknesses in the treaty and examines how the treaty might be used to cover such areas as migrating fish populations.