Why signing the Law of the Sea treaty would mean a tougher U.S. position in the Arctic

There's been substantial controversy over the past two decades over the Law of the Sea treaty negotiated by the United Nations. Known formally as the United Nations Convention on the Law of the Sea, the treaty establishes agreed-upon principles and protocols for navigation, search and rescue, and utilization of international resources, among others. 167 nations and the European Union have signed the treaty; the United States has not. That's unfortunate, for signing the treaty could help the U.S. in its new interest in the Arctic.

Issues of Arctic sovereignty for the United States arose at the end of World War II, a result of expanded U.S. maritime activities.  In September 1945, President Truman issued an executive order claiming for the U.S. jurisdiction over all "natural resources of the subsoil and seabed" of America's continental shelf. The U.S. State Department justified the order on the grounds of national security and a robust stance in foreign relations; the United States had paramount rights in and power over the shelf, including full dominion over the natural resources, including oil.

This was a significant departure from the centuries-old doctrine of freedom of the seas, which respected a 12-mile limit to national sovereignty in coastal waters. In terms of the Arctic, Truman's proclamation set up a potential conflict with Canada, which had in 1925 amended its Northwest Territories Act to require all foreign scientists and explorers in the Arctic to obtain government permits, an expression of Canadian sovereignty. The notion of national sovereignty in Truman's declaration prompted other countries to examine their policies toward shelf resources and many to assert similar claims, some imposing a 200-mile zone along their sea borders.

The confusion and potential for conflict generated by the 1945 agreement seemed an appropriate debate for United Nations action, and discussions began there in 1954. A 1958 U.N. Conference on the Law of the Sea (often referred to as UNCLOS I) resulted in four international treaties, all sometimes gathered under the title the Geneva Convention on the Continental Shelf; they dealt with territorial limits, what would be permitted on the continental shelf, cooperation on the high seas and fisheries. Amendments in 1960 and between 1973 and 1982 strengthened the agreement.

Finally, in 1994, further discussions produced UNCLOS III, which covered many elements of management of the world's oceans, including territorial claims, navigation, archipelagic status and related transit, exclusive economic zones, continental shelf jurisdiction, deep seabed mining and exploitation of undersea resources, protection of the marine environment, scientific research, and the settling of disputes. This is the treaty the U.S. has singularly and conspicuously refused to ratify.

The U.S. complies with most of the prescriptions in the treaty, and regarding the Arctic, has for the last decade participated fully in the Arctic Council, an intergovernmental forum on Arctic issues. The main problem for the U.S. seems to be a subagency created by the treaty, the International Seabed Authority, designed to organize, regulate and control seabed mining outside a 200-mile national territorial limit which the treaty recognizes. The intent of the ISA is to mandate a sharing of profits generated by deep-sea mining with all treaty members.

Critics argue that the mandated sharing constitutes a surrender of U.S. sovereignty, a common complaint regarding many U.N. activities. Further, because the U.S. provides as much as 25 percent of the U.N. budget, and most international mining conglomerates include American investors, ISA would be transferring taxpayer and private dollars to Third World countries; it would.


Advocates for U.S. signing of the treaty argue that the U.S. already provides aid to other countries through several avenues, a humanitarian effort with good, practical results. Further, they assert, participation in the full treaty regime would give the U.S. greater credibility in its international relations, and would strengthen its Arctic claims, including U.S. insistence that the Northwest Passage is not sovereign Canadian water, as that government asserts, but a free-navigation, international waterway. And since the U.S. holds only 8 percent of the Arctic circumference while Russia holds 44 percent, signing would significantly toughen U.S. regional presence.

The opposition seems mostly ideological, while the proponents' arguments are quite practical. Surely the proponents have the better of this debate.

Steve Haycox

Steve Haycox is professor emeritus of history at the University of Alaska Anchorage.