How the Law of the Sea Convention was Fixed to Address President Reagan's Concerns
Under President Reagan, the United States chose not to join the LOS Convention due to its flawed provisions concerning mineral resources of the seabed beyond national jurisdiction, i.e., beyond any country’s continental shelf. As described below, a 1994 Agreement fundamentally changed the original provisions of the Convention so as to fix each of these flaws.
By way of background, the United States has never claimed any portion of the seabed beyond national jurisdiction and has consistently taken the view that deep seabed mining should be subject to international administration. This approach is reflected in U.S. law, specifically the Deep Seabed Hard Mineral Resources Act of 1980 (Pub. L. 96-283), and in unchanged U.S. policy extending back to President Nixon.
Nevertheless, the original deep seabed mining provisions of the 1982 LOS Convention were highly problematic. President Reagan and his successors considered that the provisions would: deter future development of deep seabed mining; establish a decision-making process that would not give the United States a role that reflected or protected its interests; allow amendments to enter into force without the approval of the United States; provide for mandatory transfer of technology; allow national liberation movements to share in the benefits of deep seabed mining; and not assure access of future qualified miners. As a result of these provisions, the United States declined to join the 1982 Convention.
In the early 1990s, the United States and other nations negotiated an Agreement that fundamentally overhauled the deep seabed mining provisions of the 1982 Convention in a way that satisfied each of President Reagan’s objections. The Agreement, adopted in 1994, modifies the Convention so as to:
- ensure that market-oriented approaches are taken to the management of deep seabed minerals (e.g., by eliminating production controls);
- scale back the structure of the organization that administers deep seabed mining;
- provide the United States, if it were a Party, with a guaranteed, permanent seat on the seabed Council – which would ensure that U.S. approval would be necessary for any decision that would result in a substantive obligation on the United States, or that would have financial or budgetary implications;
- ensure that the United States, if it were a Party, would need to approve the adoption of any amendment to the deep seabed mining provisions;
- delete the objectionable provisions on mandatory technology transfer;
- ensure that the United States, if it were a Party, would be able to veto any decision relating to the sharing of benefits; and
- provide assured access for any future qualified U.S. miners.
As George P. Shultz, Secretary of State to President Reagan, said in a letter to Senator Lugar in 2007: “The treaty has been changed in such a way with respect to the deep sea-beds that it is now acceptable, in my judgment. Under these circumstances, and given the many desirable aspects of the treaty on other grounds, I believe it is time to proceed with ratification.”