After a decade of negotiations, the original Law of the Sea Treaty was first presented for signature in 1982. The United States had a significant impact on the development of this initial Treaty which contained 320 articles and nine annexes. President Ronald Reagan’s initial reaction was to say it “fairly balances the interests of all states.”
The Treaty opponents always portray Reagan as being vehemently against the entire LOS agreement, when in reality all of his objections were focused on Part XI and Annexes III and IV. Reagan’s “Special Presidential Envoy on the Law of the Sea Treaty” in 1982 – 1983 was Donald Rumsfeld.
Rumsfeld worked closely with Ambassador James Malone, who was the chief negotiator at the final sessions. Both Rumsfeld and Malone used strong language in saying major revisions were needed in Part XI and the two annexes. Without major changes, Rumsfeld and Malone said there would be no U.S. adherence to the Treaty.
Part XI defined the deep seabed area and described a plan to govern mining beyond national jurisdiction (200 nautical miles). The plan was not based on free market principles, and it called for production controls on certain minerals.
It also called for annual payments to the ISA which would have hindered the viability of any future mining operation. The original Treaty called for royalty payments between 5 and 12% of gross production, or 2 to 4% of gross plus a 35 to 70% tax on net profits. These royalties were considered far too onerous. The U.S. oil and gas industry urged Reagan to reject these royalties and to significantly revise Part XI.
Part XI also contained a vague reference to deep seabed technology transfer which was inserted by representatives of less developed nations. Third World nations said the seabed should be shared by all countries regardless of technological capability. They wanted technology to be transferred to their nations so they could also engage in deep seabed mining.
Annex III established the conditions of “prospecting and exploration,” and Annex IV created the International Seabed Authority (ISA), which was to administer resources in the areas outside a nation’s 200 nautical mile exclusive economic zones.
There was no guarantee of U.S. representation on the ISA, nor was there an American veto provision. The ISA would have been dominated by developing countries. They could have amended the Treaty and their decisions would have been binding on the United States. There was even a proposal to have royalty fees directed to national liberation movements.
In response, a Presidential Statement on “U.S. Policy and the Law of the Sea” was released on January 29, 1982. It quoted the President as saying “While most provisions of the draft convention are acceptable and consistent with U.S. interest, some major elements of the deep seabed mining regime are not acceptable.” Rumsfeld and Malone had a key role in developing this policy statement. The major point was that if the following six changes were made, the United States would sign and proceed to ratification of the pact:
1) The LOS Treaty must not deter development of any deep seabed mineral resources to meet national and world demand;
2) Assure national access to these resources by current and future qualified entities to enhance U.S. security of supply, to avoid monopolization of the resources by the operating arm of the international authority, and to promote the economic development of the resources;
3) Provide a decision-making role in the deep seabed regime that fairly reflects and effectively protects the political and economic interests and financial contributions of participating states;
4) Not allow for amendments to come into force without approval of the participating states, including, for the U.S., the advice and consent of the Senate;
5) It should not set undesirable precedents for international organizations; and
6) Be likely to receive the advice and consent of the Senate, e.g. the convention should not contain provisions for the mandatory transfer of private technology and participation by and funding for national liberation movements
The above six recommendations were not incorporated into the original Treaty, and the United States voted against the pact on July 9, 1982. President Reagan would remain in office for another six years, but he never signed the LOS Treaty because his recommendations were not incorporated.
Almost half of the U.S. coastline is in the State of Alaska. The State will benefit significantly by the LOS Treaty, but both of its Senators were opposed to the 1982 version. Senator Ted Stevens (R-AK), the former Chairman of the Appropriations Committee, was an LOS opponent in the early 1980’s. (Last year, Stevens testified in favor of the revised LOS Treaty).
Many prominent national security experts, such as Senator Stevens, believe Reagan made the right decision by refusing to sign the original version. Great Britain, France, the European Union, Japan, Canada, and the USSR also refused to sign for similar reasons.
Again, it must be emphasized that all of this just criticism was focused on Part XI. In 1983, the Reagan Administration issued another “Statement on United States Ocean Policy.” The Statement emphasized that the United States would not sign the Treaty, but the Reagan Administration accepted and would act in accordance with all of its provisions except for those related to deep seabed mining in Part XI.
President Reagan expressly stated that “the United States will recognize the rights of other states in the waters off their coasts, as reflected in the Convention, so long as the rights and freedoms of the United States and others under international law are recognized by such coastal states.”