Order Code RS21890
Updated February 10, 2005
CRS Report for Congress
Received through the CRS Web
The U.N. Law of the Sea Convention and the
United States: Developments Since October
2003
Marjorie Ann Browne
Specialist in International Relations
Foreign Affairs, Defense, and Trade Division
Summary
In October 2003, the Senate Foreign Relations Committee held hearings on the
1982 U.N. Convention on the Law of the Sea and the 1994 Agreement Relating to
Implementation of Part XI of that Convention. These were the first hearings since the
Convention package was transmitted to the Senate in October 1994. In February 2004,
the Committee unanimously recommended Senate advice and consent to U.S. adherence
to the Convention. CRS Issue Brief IB95010, The Law of the Sea Convention and U.S.
Policy
, serves as a basic CRS source for discussion of issues related to the United States
and the Convention and Agreement, while this short report focuses on events and issues
that have emerged since October 2003. It summarizes the Committee’s resolution of
advice and consent and presents some of the issues raised in recent months in support
of and in opposition to U.S. adherence. This report will be updated periodically.
Introduction
On February 25, 2004, the Senate Committee on Foreign Relations, by a vote of 19
to 0, recommended that the Senate give its advice and consent to U.S. accession to the
1982 United Nations Convention on the Law of the Sea and ratification of the 1994
Agreement Relating to the Implementation of Part XI of the U.N. Convention (S. Ex. Rpt.
108-10, March 11, 2004). The resolution of advice and consent included declarations to
be made under Articles 287 and 298 of the Convention, declarations and understandings
to be made under Article 310 of the Convention, and conditions. The Committee on
October 14 and 21, 2003, held hearings on the Convention package (Treaty Document
103-39) which was transmitted to the Senate on October 7, 1994.1 The treaty was not
considered by the Senate and was returned to the Committee at the end of the 108th
Congress.
1 A link to the text of Treaty Document 103-39 may be found at
[http://lugar.senate.gov/sfrc/sea.html]
Congressional Research Service ˜ The Library of Congress

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Background
The Convention which resulted from the third U.N. Conference on the Law of the
Sea, established a legal regime governing activities on, over, and under the world’s
oceans. In December 1982, when the Convention was opened for signature, the United
States and some other industrialized countries did not sign the Convention, maintaining
that important changes were needed to the parts that dealt with deep seabed resources
beyond national jurisdiction. As a consequence of consultations on these issues, an
agreement relating to Part XI of the Convention was adopted on July 28, 1994 and opened
for signature. The Convention entered into force on November 16, 1994, and the
Agreement entered into force on July 28, 1996. As of January 31, 2005, 148 entities were
parties to the Convention and 121 entities were parties to the Agreement.
Issues Since October 2003 — and the Senate Response
The issues raised in the 1982-1994 period dealt primarily with the regime and
international organization associated with the deep seabed area beyond national
jurisdiction. Many of the issues raised during and since the October 2003 hearings related
to more traditional law of the sea topics.2 They included use of the military activities
exemption in application of the mandatory dispute settlement machinery; protection of
U.S. security interests in the face of current terrorist threats; delimitation of the
continental shelf beyond 200 nautical miles; and a concern that continued absence by the
United States in the bodies3 set up by the Convention and Agreement will act negatively
against the interests of the United States.
The response of the Senate Foreign Relations Committee was to fashion a resolution
of advice and consent that included in section 2, declarations under Articles 287 and 298
of the Convention regarding settlement of disputes; in section 3, 24 declarations or
understandings under Article 310 of the Convention; and in section 4, five paragraphs that
deal with amendment of the Convention, only two of which would be included in the U.S.
instrument of accession to the Convention.
Article 287 (1) of the Convention allows for a declaration on the dispute settlement
machinery a State Party chooses to use in disputes concerning the interpretation or
application of articles of the Convention. Under the Committee-recommended resolution
of advice and consent, the United States would choose a special arbitral tribunal under
Annex VIII in disputes relating to “fisheries, protection and preservation of the marine
environment, marine scientific research, and navigation, including pollution from vessels
and by dumping.” The United States would choose an arbitral tribunal under Annex VII
for the settlement of disputes not covered in the above list.
2 In addition to the Senate Foreign Relations Committee, hearings were held by the Senate
Environment and Public Works Committee on March 23, 2004, the Senate Armed Services
Committee on April 8, 2004, the Senate Select Committee on Intelligence on June 8, 2004, and
the House International Relations Committee on May 12, 2004. Statements may be found on the
website of each Committee.
3 The International Seabed Authority and its Councils, the Commission on the Limits of the
Continental Shelf, and the International Tribunal for the Law of the Sea.

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Article 298 (1) of the Convention provides that a State may declare it does not accept
any of the procedures for dispute settlement in any of three types of disputes. Under
section 2 of the recommended resolution of advice and consent, the United States would
submit a declaration exempting itself from all three categories of disputes — those
concerning the interpretation or application of Article 15 on the territorial sea, Article 74
on the exclusive economic zone and Article 83 on the continental shelf relating to
boundary delimitations or those involving historic bays or titles; disputes concerning
military activities and disputes concerning certain law enforcement activities; and disputes
in which the United Nations Security Council is exercising its U.N. Charter functions.
The U.S. declaration would also state the U.S. understanding that under Article 298
(1)(b), “each State Party has the exclusive right to determine whether its activities are or
were ‘military activities’ and that such determinations are not subject to review.”
Article 310 provides that a State may make declarations or statements aimed at
harmonizing its laws and regulations with the Convention, provided that these
declarations or statements do not “purport” to exclude or to modify the legal effect of the
Convention’s provisions in their application to that State. Section 3 of the recommended
resolution sets out declarations or statements of understanding in 24 separate paragraphs.
Some of these reiterate Convention language to emphasize this country’s understanding
and interpretation of that language. These include such topics as:
! right of innocent passage,
! transit passage defined,
! high seas freedoms in the exclusive economic zone,
! marine scientific research,
! sovereign right of a State to impose and enforce conditions for entry of
foreign vessels into its ports, rivers, harbors...,
! coastal State exclusive right to determine the allowable catch of living
resources in its exclusive economic zone, and
! “Sanitary laws and regulations” in Article 33 to include laws and
regulations to protect human health from pathogens being introduced to
the territorial sea.
Section 4 lists five paragraphs of conditions, all related to the amendment process
for the Convention, requiring the President to provide copies of proposed amendments
to the Senate Committee on Foreign Relations and to consult with the Committee in
certain circumstances. Two conditions would also be included in the U.S. instrument of
accession, to the effect that all amendments shall be submitted by the President to the
Senate for its advice and consent and that the United States shall take all necessary steps
to ensure that certain amendments are adopted in conformity with the treaty clause of the
U.S. Constitution.
Other Issues of Concern to the Congress
Since the February 25, 2004, Committee vote, numerous expressions of opposition
to as well as support for U.S. adherence to the Convention and Agreement have been
published. During his March 23, 2004, statement to the Senate Environment and Public
Works Committee, Assistant Secretary of State for Oceans and International

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Environmental and Scientific Affairs John F. Turner set forth Administration responses
to at least a dozen opposing arguments.4
Proponents have raised at least two sets of arguments as supporting “prompt” Senate
approval of the convention/agreement package. They maintain that quick U.S. adherence
to and participation in the Convention would
— protect U.S. interests during considerations of the Commission on the Limits
of the Continental Shelf, and enable the United States to submit its own limits,
with extensive supporting data; and
— provide an effective U.S. role, as November 2004 approaches for the
submission and consideration of proposed amendments to the Convention.
Commission on the Limits of the Continental Shelf
The mandate of the Commission is to examine and make recommendations on
coastal State extensions of their continental shelf beyond 200 nautical miles. The
Convention gives the coastal State sovereign jurisdiction over the resources, including oil
and gas, of its continental shelf. Under Article 76 of the Convention, a coastal State with
a broad continental margin may establish a shelf limit beyond 200 miles, subject to its
submission of the particulars of the limit and supporting scientific and technical data to
the Commission for review and recommendations. The Commission reviews the intended
limits and supporting documentation, referring to the criteria set forth in Article 76 and
to other guidelines it has set up and makes recommendations to the submitting State.
While, according to information in Treaty Document 103-39, the “coastal State is not
bound to accept these recommendations,” Article 76, para. 8, stipulates that the “limits
established by a coastal State on the basis of these recommendations shall be final and
binding.”5 In this way, the Convention process contributes to the goal of preventing and
reducing the possibility of “dispute and uncertainty.”
The Russian Federation made the first submission received by the Commission in
December 2001, with proposed outer limits in the Central Arctic Ocean, the Barents and
Bering Seas, and in the Sea of Okhotsk. Brazil made its submission on May 17, 2004 and
Australia on November 15, 2004.
The Amendment Process
The Convention’s provisions delayed the possibility of amendment until ten years
after its entry into force, that is until November 2004. Articles 312 through 316 deal with
amendment, with a special process set forth in Article 314 and Article 316, para. 5, for
any Convention provisions relating exclusively to activities in the Area, defined as the
seabed and ocean floor and subsoil thereof beyond the limits of national jurisdiction.
4 See [http://www.state.gov/g/oes/rls/rm/2004/30723pf.htm] See also statements before the
Senate Armed Services Committee on April 8, 2004, by William H. Taft IV, Admiral William
L. Schachte, and John Norton Moore, all of which contain responses to opposition comments.
5 See Treaty Document 103-39, pages 56-57.

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For amendments to provisions not relating to activities in the Area, the Convention
sets forth two procedural options leading to adoption after a proposed amendment is sent
by a State Party to the U.N. Secretary-General:
— proposal of amendment (s), with a request that a conference be held to consider
and adopt the proposed amendment. The convening of such a conference
would require favorable responses from at least half of the States Parties within
12 months of the request. (Article 312)
— proposal of amendment (s), with a request for adoption by a “simplified
procedure” without convening a conference. If, within 12 months of this
request, “a State Party objects to the proposed amendment or to ... its adoption
by the simplified procedure, the amendment shall be considered rejected.” If,
however, within the same time period, there has been no objection, the
proposed amendment “shall be considered adopted.” (Article 313)
In either case, entry into force of an amendment after adoption requires ratification or
accession by two-thirds or by 60 States Parties, whichever is the greater number.
Amendments to provisions relating to activities in the Area require a different
procedure. Proposed amendments are to be sent to the Secretary-General of the
International Seabed Authority (ISA). The proposed amendment must be approved by the
ISA Assembly after prior approval (by consensus) by the ISA Council. Once approved,
the proposed amendment “shall be considered adopted.” Entry into force of any adopted
amendment requires ratification or accession by three fourths of States Parties, after which
it “shall enter into force for all [emphasis added] States Parties.”
The United States would need to be a Party to the Convention in order to block what
it might consider objectionable amendments in two of the three approaches discussed.
Under the conference option, it might, as an observer, muster sufficient influence on some
States Parties to affect a proposed amendment.
U.S. National Security Interests
Some opponents to U.S. adherence to the treaty package have suggested that such
adherence is contrary to U.S. national security interests, especially in a post-September
11 world. They maintain that under the treaty the United States would not be able to carry
out counter-terrorism programs such as the Proliferation Security Initiative (PSI) under
which shipments of weapons of mass destruction (WMD), etc., would be interdicted.
Referring to Articles 92 and 110 of the Convention, they state that the treaty does not
explicitly guarantee a right to board or interdict when evidence of terrorist intentions
through WMD is involved.6
6 The Proliferation Security Initiative was started by President Bush May 31, 2003, and framed
in a Statement of Interdiction Principles, September 4, 2003. PSI participating states “undertake
effective measures...for interdicting the transfer or transport of WMD, their delivery systems, and
related materials to and from states and non-state actors of proliferation concern, consistent with
national legal authorities and relevant international law and frameworks, including the UN
Security Council.” See CRS Report RS21881 on the PSI by Sharon Squassoni.

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Legal Adviser William H. Taft IV during April 8, 2004, hearings before the Senate
Armed Services Committee addressed “the relationship between the Convention and the
President’s Proliferation Security Initiative. The Convention will not affect our efforts
under the PSI to interdict vessels suspected of engaging in the proliferation of weapons
of mass destruction.” He added,
The Convention recognizes numerous legal bases for taking enforcement action
against vessels and aircraft suspected of engaging in proliferation of weapons of mass
destruction, for example, exclusive port and coastal State jurisdiction in internal
waters and national air space; coastal State jurisdiction in the territorial sea and
contiguous zone; exclusive flag State jurisdiction over vessels on the high seas (which
the flag State may, either by general agreement in advance or approval in response to
a specific request, waive in favor of other States); and universal jurisdiction over
stateless vessels. Further, nothing in the Convention impairs the inherent right of
individual or collective self-defense (a point which is reaffirmed in the proposed
Resolution of Advice and Consent).
In 2004, the United States concluded PSI boarding agreements with both Liberia and
Panama, two of the largest ship registry nations in the world.
Among other statements made by Convention opponents are the following: “The
treaty effectively prohibits two functions vital to American security: collecting
intelligence in, and submerged transit of, territorial waters.” AND “The treaty’s Articles
19 and 20 attempt explicitly to regulate intelligence and submarine activities in what are
defined as ‘territorial’ seas. These are activities vital to U.S. security that we should
ensure remain unrestricted at all costs.” 7
Taft stated that Articles 19 and 20 do not prohibit intelligence activities or
“submerged transit” in the territorial sea of other States. He continued,
The Convention’s provisions on innocent passage are very similar to article 14 in the
1958 Convention on the Territorial Sea and the Contiguous Zone, to which the United
States is a party. (The 1982 Convention is in fact more favorable than the 1958
Convention....) A ship does not...enjoy the right of innocent passage if, in the case
of a submarine, it navigates submerged or if, in the case of any ship, it engages in an
act in the territorial sea aimed at collecting information to the prejudice of the defense
or security of the coastal State, but such activities are not prohibited by the
Convention. In this respect, the Convention makes no change in the situation that has
existed for many years and under which we operate today.
In summary, the question of when and if the Senate will consider the Law of the Sea
Convention in 2005 depends on whether and when the Committee considers and possibly
recommends it for positive action by the Senate. If the treaty is not considered, it will
remain pending in the Committee.
7 See Gaffney, Frank J., Jr. “John Kerry’s Treaty.” National Review Online, February 26, 2004,
at [http://www.nationalreview.com] for the first quote and “Deep-six this treaty.” The
Washington Times
, February 24, 2004 for the second quote.