The United Nations Convention on the Law of the Sea (UNCLOS) is an immensely broad-ranging and ambitious legal text. With its sixteen major subdivisions and 320 articles, it is more than three times longer than the UN Charter--and that does not even include the nine separate appendices to UNCLOS, which add further detail and complexity.
Though the text was cast in its final form (apart from appendices) in 1982, the treaty was largely negotiated in the 1970s. That was not an altogether promising gestation period for international ventures. It was in the 1970s that newly independent states in what was then called "the Third World" achieved a reliable majority in the UN General Assembly. At the urging of the new majority, the UN proceeded to sponsor a whole series of ambitious new projects aimed at global redistribution of power and resources.
The most celebrated venture of this kind at the time, the New International Economic Order, called for international sponsorship of raw material cartels, modeled on OPEC. The resistance of Western states left this particular project stillborn in the 1970s, but efforts in the same era to recodify the law of armed conflicts proved more successful. In Additional Protocol I to the Geneva Conventions, Third World states won enhanced protection for guerilla fighters and new constraints on the use of air power. NATO nations originally balked at this package, but as the Cold War waned, a number of European states embraced it in the 1980s. By 1998, the provisions of Additional Protocol I were written into the Statute of the International Criminal Court (ICC). The United States, which never ratified the Additional Protocol, was forced to accept the existence of the ICC, though it did not join it.
The trajectory of the Law of the Sea treaty has been somewhat similar to the new law of war. In the 1980s, major European nations joined with the United States in resisting the Law of the Sea's elaborate scheme for establishing an international regulatory structure to control deep-sea mining--and to guarantee a portion of proceeds from such activities to developing nations. In the early 1990s, an appendix was negotiated that simplified the regulatory structure and seemed to guarantee against abuses. It did so by requiring that all substantive regulations be approved by consensus of a political "council" and then effectively assuring that the United States would have a permanent seat (with veto power) on this council. All European states proceeded to ratify the treaty, which has now been embraced by more than 150 nations around the world. The George W. Bush administration has urged the United States to embrace this treaty, and there is an impressive range of interests and advocates urging that we join most other nations in this enterprise. . . .
Click here to view the full text of this paper as an Adobe Acrobat PDF.
Jeremy A. Rabkin is a professor of law at George Mason University and a member of AEI's Council of Academic Advisers.
