Law of the Sea Treaty: Should It Just Get 'LOST'?

Urging the U.S. Senate to ratify the Law of the Sea Treaty (LOST), also called the United Nations Convention on the Law of the Sea (UNCLOS), Admiral Robert Papp Jr. said not ratifying the treaty is “almost like having a winning lottery ticket that you don’t cash in.”

Maybe. But before cashing in a lottery ticket (or anything else), one should always read the fine print on the back. And the LOST has a lot of fine print: 475 pages, 17 Sections, 320 Articles, 9 Annexes, and over 158,000 words.

Drafted under United Nations auspices in 1982 and then slightly revised in 1994, the LOST is a comprehensive agreement establishing maritime zones, regulating navigation, governing resources including seabed mining, environmental protection, and dispute resolution. It has been called the “constitution for the oceans.”

Among other things, LOST provides that nations have full authority over adjacent oceans up to 12 nautical miles from the coast and certain enforcement powers for 12 nautical miles beyond that, that nations have exclusive rights to harvest minerals in their continental shelf up to 350 nautical miles from the shoreline, and that the “high seas” beyond any national jurisdiction are open to all nations for navigation, flight, and scientific research.

The treaty also establishes the International Seabed Authority to regulate mineral harvesting in the international seabed area, the International Tribunal for the Law of the Sea to adjudicate disputes under the treaty, and the Commission on the Limits of the Continental Shelf to evaluate conflicting claims over continental shelf territory.

Although the United States was a prime mover in negotiating this treaty, and although 169 nations and the European Union have ratified it, the United States is not a party to it because it has never obtained the approval of 2/3 of the Senate (67 Senators) as required by the Constitution Article II Sec. 2 for treaties. President Reagan’s opposition to the treaty was a primary reason it was never ratified.

Currently, there is a renewed effort to persuade the Senate to ratify LOST. Treaty supporters argue that ratification is necessary to preserve access to global sea lanes, secure economic zones, and resist hostile action by foreign partners. They point to China as a special concern, because China is trying to reduce navigational rights of the U.S. Navy, has declared an illegal air defense zone in the East China Sea, has made illegal claims to control military research and intelligence gathering in various economic zones, has made illegal claims to control the Taiwan Strait, has harassed the Philippines over disputed island and shoals, and has obtained licenses for five deep- seabed sites for minerals necessary for microchip production. As Admiral Steve Abbot told the National Security Commission, “China is eating our lunch.”

These are valid concerns, but it is unclear how ratification of LOST will help us meet these challenges. It would give us a voice on the various Commissions and Tribunals established by LOST, but this might not do much good if we are outvoted by nations hostile to the U.S.

The Heritage Foundation has thoroughly researched the treaty and has prepared a document titled “7 Reasons U.S. Should Not Ratify UN Convention on the Law of the Sea” https://www.heritage.org/global-politics/commentary/7-reasons-us-should-not-ratify-un-convention-the-law-the-sea. As Heritage says,

For more than 30 years, through domestic law and bilateral agreements, the U.S. has established a legal framework for deep-seabed mining. U.S. accession would penalize U.S. companies by subjecting them to the whims of an unelected and unaccountable bureaucracy and would force them to pay excessive fees to the International Seabed Authority for redistribution to developing countries.

Heritage contends that we can best protect our maritime rights through a strong navy rather than acceding to international agencies that probably do not have America’s best interests at heart. Their study quotes Sen. Rob Portman (R-Ohio) when he opposed ratification in 2012:

We simply are not persuaded that decisions by the International Seabed Authority and international tribunals empowered by this treaty will be more favorable to U.S. interests than bilateral negotiations, voluntary arbitration, and other traditional means of resolving maritime issues.

…[W]e are confident that our nation will continue to protect its navigational freedom, valid territorial claims, and other maritime rights.

On balance, we believe that the treaty’s litigation exposure and impositions on U.S. sovereignty outweigh its potential benefits.

The Cato Institute produced a study titled “The Law of the Sea Treaty: Inconsistent With American Interests,” https://www.cato.org/testimony/law-sea-treaty-inconsistent-american-interests, and concluded that the provisions establishing an International Seabed Authority are “Orwellian.” They start with the fundamental premise that “all unowned resources on the ocean’s floor belong to the people of the world, meaning the United Nations.” The Authority is to be composed mostly of poorer nations that will impose regulations that benefit them at the expense of those who are seeking to develop these seabed resources. The Cato Institute also says concerning the navigation provision, “Washington’s refusal to sign the LOST left critics predicting chaos and combat on the high seas two decades ago – since then we have witnessed not one incident as a result of America’s failure to join the LOST.” Even the LOST as amended still has provisions like Article 144 that require the International Seabed Authority to “promote and encourage the transfer to developing States technology and scientific knowledge so that all States Parties benefit therefrom.” The cooperation of America’s trade partners, who have an incentive to protect American navigation because they want to buy and sell with America, is a better safeguard than an international agency composed of hostile nations.

President Trump has effectively ignored and bypassed LOST. In April 2025 he signed the “Unleashing America’s Offshore Critical Minerals and Resources” Executive Order which directs U.S. agencies to expedite permits for deep-sea mining in international waters, thus effectively bypassing the International Seabed Authority.

Not only is LOST against America’s best interests and an encroachment upon U.S. sovereignty; it also may be unconstitutional. Hofstra Constitutional Law Professor Julian G. Ku has published a law review article entitled “Why Ratification of the U.N. Convention of the Law of the Sea May Violate Article III of the U.S. Constitution,” https://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1292&context=mjil.

He notes that international tribunals established under the treaty have jurisdiction over diverse matters such as “fishing practices, actions on the high seas, scientific research of the marine environment, and intrusions into territorial seas or exclusive economic zones.” Because these tribunals have final authority to decide these disputes, member states are obligated by the treaty to give the decisions of these tribunals full force and effect. However, Article III of the U.S. Constitution provides that “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time establish.” Professor Ku notes that “Although U.S. courts routinely enforce judgments of foreign courts, the Supreme Court has made it clear that such enforcement is made out of comity rather than binding obligation toward those foreign courts.” He cites two Supreme Court cases that raise similar questions, Medellin v. Texas (2008) concerning the International Court of Justice, and Sanchez-Llamas v. Oregon (2006) concerning the Vienna Convention, to which I would add Reid v. Covert (1957) which held that treaties may not supersede the U.S. Constitution.

Navigating the high seas can indeed be dangerous, and we naturally look for easy solutions. But when “LOST” at sea, we must not turn to the Sirens of Homer’s Odyssey, the bird-like enchantresses whose beautiful voices lured sailors to shipwreck and death on rocky shores. Rather, we must steer a steady course, guided by the Constitution and by George Washington’s admonition that we be careful of “entangling alliances.”

Colonel Eidsmoe serves as Professor of Constitutional Law for the Oak Brook College of Law & Government Policy (obcl.edu), as Senior Counsel for the Foundation for Moral Law (morallaw.org), and as Chairman of the Board of the Plymouth Rock Foundation (plymrock.org). He and his wife live in rural Pike Road, Alabama. He may be contacted for speaking engagements at eidsmoeja@juno.com.

THE VIEWS OF SUBMITTED EDITORIALS MAY NOT BE THE EXPRESS VIEWS OF THE ALABAMA GAZETTE.