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Fixing America’s LOST Policy

Israeli ground forces reached the outskirts of Beirut and fought the largest air battle since the Korean War, shooting down at least 82 Syrian fighter jets. The Falkland Conflict entered its final, and most intense, round of fighting. Nearly a million people marched in Central Park demanding global denuclearization and an end to the Cold War.

There should be no question that June 1982 was a tumultuous month around the world. Lost in the turmoil, however, was a seemingly minor decision by President Ronald Reagan which continues to hinder American foreign policy today.

Image courtesy of NOAA, © 2006.

Image courtesy of NOAA, © 2006.

In an entry in his diary dated June 29 that notes “Decided in [National Security Council] meeting not to sign ‘Law of the Sea’ treaty,” the president rejected a hard-fought treaty to finally codify the rules that governed the high seas and settle territorial disputes involving the ocean. Often abbreviated LOST, for the Law of the Sea Treaty, or UNCLOS, for the United Nations Conference on the Law of the Sea, the agreement reached the end of its nine-year negotiations in 1982. Currently ratified by 167 countries and the European Union, it covers topics ranging from the right of passage through territorial seas to fishing and undersea mineral rights.

A key provision of the treaty is the defining of territorial rights of the oceans. States are given total control over internal waters and the ocean up to 12 miles off their coast. Between 12 and 24 miles away, a state can enforce rules dealing with pollution, customs, immigration, and taxation. Past that, a state receives an “Exclusive Economic Zone” (EEZ) up to 200 miles from their shores, where they have full control over natural resources. Offshore islands also receive the full 200-mile EEZ, though “rocks which cannot sustain human habitation or economic life of their own” do not.

Worldwide, this has led to a rush by costal nations to identify and assert control of nearby landmasses. While this has undoubtedly heightened tensions in the South China Sea, as well as Africa, Europe, and South America, by codifying rules and creating a dispute resolution process, UNCLOS allows more equitable outcomes and reduces the risk of conflict. Already, territorial disagreements between India and Bangladesh and Ukraine and Romania have been settled peacefully under UNCLOS.

While much of the contents of UNCLOS were non-controversial, key provisions dealing with judicial enforcement, environmental protection, and mining rights have resulted in staunch opposition to ratification in the U.S. Senate. Notably, a provision of Part XI calls the High Seas the “Common Heritage of Mankind” and directs economic activities in those areas to be undertaken for the benefit of mankind as a whole. Rich nations are called upon to share technology with less developed states, and any revenue generated is to be shared.

Since the treaty came into force in 1994, the United States has recognized it as a formal codification of customary international law, but has not ratified it. That is a mistake. The current situation leaves the U.S. beholden to foreign rule-making bodies but with only a limited say in how those rules are written or enforced.

The United States’ decision to join Iran, North Korea, and Libya in refusing to ratify UNCLOS greatly hinders its ability to maintain diplomatic credibility around the world. The National Oceanic and Atmospheric Administration notes:

The U.S. position as a nonparty to the Law of the Sea Convention is increasingly undercutting U.S. influence over other nations [sic] implementation and adherence to the provisions that support our interests… The U.S. is at risk of losing its influence and leadership position in critical international fora for dealing with the oceans, such as the International Maritime Organization. U.S. proposals for maritime safety and environmental protection guidelines are increasingly met with open skepticism because of the U.S. position as a nonparty to the Law of the Sea Convention.

In the South China Sea, the United States finds itself clearly demanding a double standard, insisting other states, notably China, restrict their territorial claims to those provided for under UNCLOS, while refusing to be bound by the same limits. The language of the treaty, while far from perfect, still offers a framework for resolving territorial disputes, but other states can and do use the United States’ non-ratification to justify their own expansionist efforts.

Further, many of the critics’ arguments against the treaty have already been resolved. A special Agreement on Implementation was offered to the United States modifying Article XI to mitigate the requirements for technology transfer. As John Bellinger, former legal advisor to Secretary of State Condoleezza Rice notes, UNCLOS would in fact strengthen U.S. sovereignty by solidifying ownership over vast troves of natural resources and giving its territorial claims legal force.

In an op-ed in the Washington Post, former Secretary of State Lawrence Eagleburger and John Moore, Director of the Center for Ocean Law and Policy, write, “Today the convention is in force for 154 nations, including all the permanent members of the U.N. Security Council but the United States. Failure to adhere diminishes the voice of the United States in protecting our interests worldwide; it excludes America from the new functional organizations created by the convention, such as the Commission on the Limits of the Continental Shelf; and it sends a signal of American isolationism.”

The next president of the United States has an opportunity to secure her or his foreign policy legacy on day one. By prioritizing ratification of the Law of the Sea treaty, she or he can make clear the intention that the United States no longer be left “out in the cold” on global agreements. Ratifying the treaty will not suddenly solve territorial disputes like those in the South China Sea, but it will solidify the process meant to fairly and peacefully resolve conflicts before they turn into crises.


Nicholas Monck

Nicholas is a student at the University of Colorado School of Law where he focuses on American Constitutional Law. Previously he served as the Press Secretary of the U.S. Global Leadership Coalition, and has worked for the Senate Agricultural Committee and on Senator Gary Peters’ campaign. He earned a B.A. in Political Science with a focus on American Public Policy from the University of Michigan, where he served on the editorial board of the Michigan Journal of International Affairs and was a two-time Big Ten Conference Champion Lincoln Douglas debater. Nick also received a M.S. of Communication with a focus on political communication at Northwestern University, where he graduated at the top of his class. You can connect with him on Twitter @nicholasmonck.
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