Drafted under United Nations auspices in 1982 and then slightly revised in 1994, the Law of the Sea Treaty (LOST or UNCLOS) is a comprehensive agreement establishing maritime zones, regulating navigation, and governing resources including seabed mining, environmental protection, and dispute resolution. It has been called the “constitution for the oceans.”
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, it never joined the 169 other nations and the European Union in ratifying it. President Reagan’s opposition was a primary reason it was never ratified.
Admiral Robert Papp Jr. once said that 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, one should always read the fine print. And LOST has 475 pages of fine print.
Currently, there is a renewed effort to persuade the U.S. 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, including its efforts to reduce U.S. Navy navigational rights, declare an illegal air defense zone in the East China Sea, make illegal claims to control the Taiwan Strait, harass the Philippines over disputed islands and shoals, and obtain licenses for five deep-seabed sites for minerals necessary for microchip production.
These are valid concerns, but how would ratifying LOST help us address them?
The Heritage Foundation has thoroughly researched the treaty and opposes its ratification, noting:
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 U.S. 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.
Likewise, research from the Cato Institute concludes 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. “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,” Cato says. 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, signing the “Unleashing America’s Offshore Critical Minerals and Resources” Executive Order in 2025. This directed U.S. agencies to expedite permits for deep-sea mining in international waters, effectively bypassing the International Seabed Authority.
Not only is LOST against America’s best interests and an encroachment upon U.S. sovereignty, but it may also be unconstitutional. Hofstra Constitutional Law Professor Julian G. Ku 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 ordain and establish.”
“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,” Ku notes. He cites two Supreme Court cases that raise similar questions, Medellin v. Texas (2008) and Sanchez-Llamas v. Oregon (2006), to which I would add Reid v. Covert (1957), which held that treaties may not supersede the U.S. Constitution.
Navigating the high seas is 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, Ala. He may be contacted for speaking engagements at [email protected].
The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to [email protected].
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