The Law of the Sea Convention and U.S. Policy

The Law of the Sea Convention and U.S. Policy

Order Code IB95010
CRS Issue Brief for Congress
Received through the CRS Web
The Law of the Sea Convention
and U.S. Policy
Updated June 16, 2006
Marjorie Ann Browne
Foreign Affairs, Defense, and Trade Division
Congressional Research Service ˜ The Library of Congress

CONTENTS
SUMMARY
MOST RECENT DEVELOPMENTS
BACKGROUND AND ANALYSIS
The Convention and U.S. Interests
Naval Power and Maritime Commerce Interests
Coastal State Interests
Protection of the Marine Environment
Marine Scientific Research
Dispute Settlement
Part XI and the 1994 Agreement: Deep Seabed Mining
ISA Decisionmaking
Review Conference
Technology Transfer
Obstacle to Development
Adherence to the Agreement and the Convention
Issues for the Senate
Is the Convention Really “Fixed”?
Compulsory Dispute Settlement
Convention and U.S. Law
Common Heritage
Provisional Application
Commitments
Funding
CONGRESSIONAL HEARINGS, REPORTS, AND DOCUMENTS
CHRONOLOGY
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The Law of the Sea Convention and U.S. Policy
SUMMARY
On October 7, 1994, President Clinton
not give the United States or other Western
transmitted to the Senate the 1982 United
industrialized countries influence commensu-
Nations Convention on the Law of the Sea and
rate with their interests; “Review Conference”
the 1994 Agreement relating to the Implemen-
provisions that would allow Convention
tation of Part XI of the United Nations Con-
amendments to enter into force without
vention. The package was referred to the
express U.S. approval; stipulations relating to
Senate Committee on Foreign Relations. On
mandatory transfer of private technology;
November 16, 1994, the U.N. Law of the Sea
provisions that would deter rather than pro-
Convention entered into force but without
mote future development of deep seabed
accession by the United States. The 1994
mineral resources by incorporating economic
Agreement entered into force on July 28,
principles inconsistent with free market
1996, again without U.S. ratification.
philosophy; and the absence of assured access
to future deep seabed mineral resources. The
The United States had provisional mem-
Clinton Administration maintained that the
bership in the International Seabed Authority
provisions of the 1994 Agreement and Annex
(ISA) and its organs and bodies through No-
correct the objectionable elements in the
vember 16, 1998. The opportunity for provi-
Convention on deep seabed issues.
sional membership, providing time for adher-
ence to the convention and agreement, ended
A number of questions face the Senate as
on November 16. Since the Senate had not
it considers the Convention/Agreement pack-
given its advice and consent to U.S. adher-
age. Does the Agreement sufficiently resolve
ence, the President could not bring those
opposing concerns expressed above about the
documents into force for the United States.
deep seabed mining provisions? Are the
Since November 16, 1998, the United States
compulsory dispute settlement provisions and
has observer status at the ISA.
the U.S. declaration acceptable to the Senate?
What is the impact of U.S. adherence on
The major part of the 1982 Law of the
current U.S. statutes? What changes must be
Sea Convention had been supported by U.S.
made by legislation? What precedent does
Administrations, beginning with President
U.S. acceptance of the Convention/Agreement
Reagan, as fulfilling U.S. interests in having a
definition of the common heritage of mankind
comprehensive legal framework relating to
concept establish? Were the provisional
competing uses of the world’s oceans. How-
application procedures used for the 1994
ever, the United States and many industrial-
Agreement a good or bad precedent for the
ized countries found some of the provisions
U.S. treaty process? What is the nature of
relating to deep seabed mining in Part XI and
U.S. commitments undertaken in decisions of
Annexes III and IV of the Convention contrary
the ISA Council? Should Congress have a
to their interests and would not sign or act to
role and under what circumstances? What
ratify the Convention. Among the unaccept-
authority should Congress exert over the
able elements were a decision-making process
expenses of another international organization
in the ISA Council and Assembly that would
(the ISA)?
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MOST RECENT DEVELOPMENTS
As of June 16, 2006, the 1982 U.N. Convention on the Law of the Sea and its 1994
Agreement remained pending before the Senate Committee on Foreign Relations. On
December 17, 2004, the President had urged “Congress to provide its advice and consent to
this treaty as early as possible in the 109th Congress.” The United States currently
participates, as an observer, in meetings of the International Seabed Authority (ISA).
BACKGROUND AND ANALYSIS
The U.N. Convention on the Law of the Sea, which was open for signature between
December 1982 and December 1984, established a legal regime governing activities on, over,
and under the world’s oceans. The Convention resulted from the third U.N. Conference on
the Law of the Sea, which met for a total of 93 weeks between December 1973 and
December 1982. The United States and other industrialized countries, however, while
supporting most of the treaty, did not sign the Convention or announced they could not ratify
the Convention without important changes to the parts that dealt with deep seabed resources
beyond national jurisdiction. In 1990, U.N. Secretary-General Javier Perez de Cuellar
initiated consultations among interested governments aimed at achieving universal
participation in the Convention. From late 1992 on, pressures mounted to revise or amend
what were viewed as unacceptable parts of the Convention. Factors contributing to this
renewed pressure included the desire for universal participation in a convention that in most
respects was acceptable worldwide, improvements in the international political climate,
changes in economic ideology that meant greater acceptance of free market principles, and
the steady increase in the number of ratifications toward the 60 required to bring the
convention into force.
In April 1993, the Clinton Administration announced it would actively participate in
these consultations on the outstanding issues in the deep seabed portions of the Convention.
On November 16, 1993, receipt by the U.N. Secretary-General of the 60th instrument of
ratification/accession marked the start of the one-year waiting period after which the
Convention would enter into force. The consultations led to adoption, on July 28, 1994, by
the U.N. General Assembly of Resolution 48/263 ([http://www.un.org/documents/ga/
res/48/a48r263.htm]), opening for signature an Agreement relating to the Implementation of
Part XI of the United Nations Convention on the Law of the Sea. The vote was 121 in favor
(including the United States) to 0 against, with 7 abstentions (Colombia, Nicaragua, Panama,
Peru, Russian Federation, Thailand, Venezuela) and 36 nations absent. The Agreement
amended various seabed-related parts of the Convention.
On July 29, 1994, the United States signed that Agreement and on October 7, 1994,
President Clinton transmitted to the Senate the 1982 U.N. Convention on the Law of the Sea
and 1994 Agreement relating to the Implementation of Part XI of the U.N. Convention
(Treaty Document 103-39, [http://lugar.senate.gov/sfrc/presidentialmessage.pdf]). The
package was referred to the Senate Committee on Foreign Relations. On November 16,
1994, the U.N. Law of the Sea Convention entered into force and on July 28, 1996, the
Agreement entered into force, both without U.S. participation.
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On November 27, 2001, Ambassador Sichan Siv, U.S. Representative on the U.N.
Economic and Social Council, made the following statement in the U.N. General Assembly:
The United States has long accepted the UN Convention on the Law of the Sea as
embodying international law concerning traditional uses of the oceans. The United States
played an important role in negotiating the Convention, as well as the 1994 Agreement
that remedied the flaws in Part XI of the Convention on deep seabed mining. Because
the rules of the Convention meet U.S. national security, economic, and environmental
interests, I am pleased to inform you that the Administration of President George W.
Bush supports accession of the United States to the Convention.
On April 8, 2002, in remarks at a U.N. meeting, U.S. ambassador Mary Beth West
reiterated Administration support for U.S. accession to the Convention, noting “we intend
to work with the U.S. Senate to move forward on becoming a party.” (USUN Press Release
49). During hearings before the Senate Foreign Relations Committee, in October 2003,
Administration witnesses supported U.S. adherence to the treaty, maintaining that “becoming
a party to the convention represents a highest priority of the United States international
oceans policy.” (see Taft in S.Exec.Rept. 108-10, [http://lugar.senate.gov/sfrc/seareport.pdf],
p. 91.)
On September 20, 2004, the U.S. Commission on Ocean Policy, in its report to the
President and to Congress, issued 212 recommendations, placing U.S. accession to the U.N.
Convention on the Law of the Sea as one of its 13 “Critical Actions...[to] provide the
foundation for a comprehensive national ocean policy.” (See CRS Issue Brief IB10132,
Ocean Commissions: Ocean Policy Review and Outlook, by John Justus, et al.) The
Commission noted that “There are many compelling reasons for the United States to
expeditiously accede to the Convention.” (See pp. 385-86 of Final Report, at
[http://oceancommission.gov/documents/prepub_report/welcome.html].) The December 17,
Presidential response to the Commission report stated that “as a matter of national security,
economic self-interest, and international leadership, the Bush Administration is strongly
committed to U.S. accession to the UN Convention on the Law of the Sea.”
As of June 15, 2006, 149 entities (147 independent States, the Cook Islands, and the
European Community) were parties to the 1982 Convention. At the same time, 123 entities
(including the Cook Islands) were parties to the 1994 Agreement. (The Cook Islands are a
self-governing dependency of New Zealand, not an independent state.) Current information
on status of the Convention and Agreement may be obtained on the Internet at
[http://www.un.org/Depts/los/index.htm].
On June 13, 2006, the Joint Ocean Commission Initiative (JOCI), in response to a
March 2006 request from ten Senators, released a report, From Sea to Shining Sea: Priorities
for Ocean Policy Reform. Among the “top ten steps” the report recommended Congress
should take was Senate advice and consent to U.S. accession to the U.N. Convention on the
Law of the Sea. The report urged “rapid Senate approval” and observed that “as the lone
industrialized nation not part of the convention, we jeopardize our role as a world leader by
failing to join.” The JOCI report noted that implementation costs related to U.S. access
would approximate $3 million to support the International Tribunal for the Law of the Sea
and the International Seabed Authority. (See [http://jointoceancommission.org] for report.)
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A primary issue in 2006 continues to be the lack of U.S. action. This country did not
adhere to the convention/agreement package by November 16, 1998, and thus no longer
participates as a member of the International Seabed Authority. The United States lost its
seats in the four bodies of the ISA. Although the Foreign Relations Committee reported
favorably the treaty package on February 25, 2004, it was not taken up by the Senate and was
returned to the Committee at the end of the 108th Congress. Among the questions to be
considered are the following: will the amendments offered in the Agreement sufficiently
alter the direction of the Convention’s deep seabed mining provisions to make it acceptable
to those who oppose U.S. ratification? What will be the Senate’s response to the
Administration’s statements of support for U.S. accession because it meets “U.S. national
security, economic, and environmental interests”? For details on the Committee’s 2004
recommended resolution of advice and consent and other issues raised, see CRS Report
RS21890, The U.N. Law of the Sea Convention and the United States: Developments Since
October 2003, by Marjorie Ann Browne.
The Convention and U.S. Interests
The Law of the Sea Convention and the 1994 Agreement are extensive, complex
documents touching on a wide range of policy issues and U.S. interests. From the
perspective of the United States, some of the most significant areas addressed by the
Convention deal with naval power and maritime commerce, coastal State interests, marine
environment protection, marine scientific research, and international dispute settlement. The
Agreement focuses on deep seabed mining issues, revising and nullifying key provisions of
the Convention.
Naval Power and Maritime Commerce Interests. United States interests as a
naval power provided the initial impetus for U.S. policymakers to promote law of the sea
negotiations. The increasing number of claims made by other States over offshore high seas
areas — such as territorial sea, fishing zones, economic zones — were expected to limit
freedom of navigation to an unacceptable extent and increase the likelihood of international
disputes over access to the world’s oceans. The Convention sets a 12- nautical mile
territorial sea limit and a 200-nautical mile exclusive economic zone (EEZ), thereby
establishing limits to areas over which States may claim jurisdiction. Equally important for
freedom of navigation, the Convention protects high seas freedoms throughout the zone and
innocent passage through the territorial sea, so long as such activities are not “prejudicial to
the peace, good order or security of the coastal State.” The Convention lists 12 categories
of activity viewed as non-innocent or prejudicial. Armed warships that do not engage in
“prejudicial” activities are guaranteed the same right of innocent passage through the
territorial sea as other ships. Submarine and other underwater craft are required, however,
to navigate on the surface and show their flags.
The Convention further adopts an innovative concept — transit passage — for
movement through straits used for international navigation that lie within the territorial seas
of the adjoining States. Over 135 straits that may have been closed by the expansion of the
territorial sea limit to 12 miles would be open to transit under this provision, benefiting both
naval and commercial navigation. The United States conditioned its support of the 12-mile
territorial sea limit on the inclusion of transit passage. Under this provision, all ships and
aircraft may navigate or overfly for the purpose of continuous and expeditious transit of the
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strait. Since the Convention does not contain language specifically requiring submarines to
surface, submarines may transit such straits submerged. States bordering straits may
designate sea lanes and prescribe traffic separation schemes to promote safe passage of ships.
All ships also have a right of innocent passage through archipelagic waters.
Opponents to U.S. adherence to the overall Convention argue that the United States
already benefits from the Convention’s navigational provisions, on the basis of customary
international law. The United States has already declared a 12-mile territorial sea limit and
a 200-mile EEZ and is exercising its rights through a Freedom of Navigation Program, using
diplomatic protests, operational challenges, and bilateral agreements to promote adherence
to the naval and maritime obligations established in the Convention. It is therefore
unnecessary, say some critics, to adhere to the Convention to protect these interests.
Proponents of the Convention maintain that adherence is a more effective and less costly way
of preserving the obligations and rights set forth in the Convention under naval power and
maritime commerce interests.
Coastal State Interests. As a coastal State, the United States has required
assurances of access to both living and non-living resources in the offshore areas. The 1945
Truman Proclamation, claiming U.S. jurisdiction over U.S. continental shelf resources, has
been viewed as the initial salvo in the explosion of claims made by coastal States around the
world extending territorial seas and fisheries and economic zones in the years since. During
the early years of the Conference, U.S. congressional attention revolved around efforts to
establish a 200-mile U.S. fisheries zone, as adopted in the 1976 Fishery Conservation and
Management Act, while at the same time seeking, internationally, to respond to the concerns
of U.S. long-distance fishers.
The Convention provides that each coastal State may claim a 200-mile EEZ, in which
it has “sovereign rights” over exploring, exploiting, conserving, and managing the natural
resources — whether living or non-living — of the waters superjacent to the sea- bed and its
subsoil. In the EEZ, the coastal State also has jurisdiction to regulate the establishment and
use of structures for economic purposes, marine scientific research, and protection of the
marine environment, within the EEZ. Military activities, recognized as high seas uses, are
permitted in the EEZ beyond the 12-mile territorial sea, but other States should have “due
regard” for coastal State resource and other rights in the zone.
Protection of the Marine Environment. The world’s oceans cover nearly 71% of
the earth’s surface, contain 97% of the world’s water, and produce one-third to one-half of
the global oxygen. The Convention has been called “the strongest comprehensive
environmental treaty now in existence.” (Stevenson and Oxman, The Future of the United
Nations Convention on the Law of the Sea, p. 496.) Under the Convention, States are to take
measures to deal with all sources of pollution of the marine environment: a) from land-based
sources, from or through the atmosphere, or by dumping; b) from vessels; c) from
installations and devices used in exploration or exploitation of the natural resources of the
seabed and subsoil; and d) from other installations or devices operating in the marine
environment (Article 194).
For land-based sources, which account for 80% of marine pollution, the Convention
requires States to adopt laws and regulations to prevent, reduce, and control such pollution,
taking into account internationally agreed rules, standards, and recommended practices and
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procedures. Rather than rely solely on flag States for enforcement of vessel source pollution
rules, the Convention charges coastal States and port States, as well as flag States, to act
against vessels suspected of violation of anti-pollution regulations within territorial or EEZ
waters. Coastal State regulations, especially within the EEZ, must be in accordance with
generally accepted international standards, specifically under the International Maritime
Organization (IMO). Compliance with environmental standards under the Convention is
subject to compulsory arbitration or adjudication. According to two former U.S. negotiators,
“the coupling of compulsory arbitration and adjudication with environmental obligations ...
is an ... advance over past practices.” (Stevenson and Oxman, The Future of the United
Nations Convention on the Law of the Sea, p. 495.)
Marine Scientific Research. The Convention grants the coastal State jurisdiction
over marine scientific research conducted within its EEZ and on its continental shelf and
requires coastal State consent for the conduct of such research. As a result, some claimed
that the prospects for U.S. marine scientists to gain increased access to other nations’
offshore areas — the location of some of the most useful marine scientific research — would
be limited. The Convention, however, includes certain obligations on the coastal State that,
under normal circumstances, will grant consent for research by other States or competent
international organizations. Such consent may not be delayed or denied unreasonably. The
Convention includes an “implied consent” rule to promote prompt coastal State responses
to requests for consent. Under this rule, work on a marine scientific research project may
proceed six months after detailed information on the project has been provided by the foreign
State or international organization unless, within four months of receipt of the information,
the coastal State has informed the research project that, 1) it has withheld consent; 2) the
information provided does not conform with the facts; 3) additional information is required;
or 4) outstanding obligations exist from previous research projects.
Dispute Settlement. A number of legal
Dispute Settlement Choices
experts believe that U.S. interests in a stable
The Convention names four potential fora
law of the sea are strengthened by the
for compulsory, binding dispute settlement: the
comprehensive compulsory dispute settlement
International Tribunal for the Law of the Sea
provisions in the Convention. According to
(Annex VI); the International Court of Justice;
Professor Louis Sohn, this was the first time
an arbitral tribunal (Annex VII); and a special
arbitral tribunal (Annex VIII) for specified
that such a conference “agreed to provide for
categories of disputes. A State may choose, by
the access of individuals and corporations to an
written declaration, one or more of these means.
international tribunal in their disputes with a
A State may opt out of one or more of the
state or international organization.” The goal
procedures or fora with respect to three
of the Convention is to promote compliance
categories of disputes: maritime boundary
disputes; disputes concerning military activities
with its provisions and ensure that disputes are
and certain law enforcement activities; and
settled by peaceful means. It provides for the
disputes where the U.N. Security Council is
settlement of disputes that may arise from the
exercising the functions assigned to it by the
interpretation or application of the Convention;
U.N. Charter.
it also includes a supplementary system for the
The Seabed Disputes Chamber of the
settlement of disputes arising under Part XI of
International Tribunal is the forum for disputes
the Convention relating to deep seabed mining.
in the International Area where deep seabed
mining might occur (Annex VII).
The underlying principle in the Convention is
that parties to a dispute can select by agreement
any dispute settlement procedure they desire.
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Compulsory dispute settlement, however, might be viewed as a two-edged sword. On
the one hand, the United States may choose to use the process to resolve a particular dispute
over application or interpretation of the Convention and thus force or encourage compliance
with the Convention. On the other hand, other States might take the United States to the
arbitral process over a dispute with U.S. interpretation or application of the Convention.
Part XI and the 1994 Agreement: Deep Seabed Mining
Sections of the Convention dealing with deep seabed mining include Part XI (The Area)
and Annexes III (Basic Conditions of Prospecting, Exploration and Exploitation) and IV
(Statute of the Enterprise). Part XI sets forth a regime and international organizational
structure to regulate a future use of the international ocean area beyond national jurisdiction.
While various mining consortia have invested in exploration activities and prototype
technology for deep seabed mining, economic viability is not yet sufficient to warrant
commercial recovery from deep seabed mining anytime soon. Thus, the international regime
and institutions provided for in the Convention/Agreement package apply to an international
activity not yet taking place.
The concept underlying the regime is called the “common heritage of mankind,” a
phrase used by the Convention when referring to this area and its resources. Under this
concept, no State may claim or exercise sovereignty or sovereign rights over any part of the
area or its resources and all rights in the resources of the area are vested in mankind as a
whole.
The International Seabed Authority (ISA), composed of all States parties to the
Convention, may administer the seabed mining regime. The Convention establishes three
principal organs of the Authority: the Assembly, Council, and Secretariat. The Assembly
is the plenary body composed of all ISA members; it elects the Council and
Secretary-General, assesses contributions, gives final approval to the rules and regulations
of the Authority, approves the budget, and decides on sharing of mining revenues received
by the Authority. The Council, made up of 36 members, is the executive body of the ISA
and has primary responsibility for administering the regime.
As negotiations on the Convention were concluded and treaty language was finalized
in the spring of 1982, the U.S. Administration decided that Part XI and Annexes III and IV
were contrary to U.S. interests in many important ways:
! the decisionmaking process of the ISA Council and Assembly would not
give the United States or other western industrialized countries influence
commensurate with their interests;
! the “Review Conference” provisions would allow Convention amendments
to enter into force without express U.S. approval;
! provisions required the mandatory transfer of private technology;
! some provisions would deter rather than promote future development of
deep seabed mineral resources by incorporating economic principles
inconsistent with free market philosophy;
! absent were guarantees for assured access to future qualified deep seabed
mineral resources; and
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! some provisions set undesirable precedents for international organizations.
As a result of consultations conducted by the U.N. Secretary-General since 1990, an
agreement responding to the objections made by the United States and other industrialized
countries was negotiated. The 1994 Agreement relating to implementation of Part XI of the
United Nations Convention, and its accompanying Annex, is considered an integral part of
the Convention package that entered into force on November 16, 1994. In the event of
inconsistencies, the Agreement and Annex language take precedence over Convention
language. The Annex contains the substantive changes to Part XI and Annexes III and IV
of the Convention, while the Agreement defines the legal relationship between the
Convention and Agreement, explains the ways in which States may consent to be bound by
the Agreement, and sets the terms of entry into force of the Agreement and its provisional
application.
A major concern of nations agreeing to
Annex Sections
international conventions in the 1990s is that
The Annex contains nine sections, each dealing
newly created international bureaucracies be
with a separate set of Convention elements:
kept small and that costs be kept to a minimum.
Sec. 1
Costs to States parties and
This is especially important for the ISA whose
institutional arrangements
primary reason for existing — deep seabed
Sec. 2
The Enterprise
mining — does not yet take place. The Annex
Sec. 3
Decision-making
begins by stating that the principle of
Sec. 4
Review Conference
cost-effectiveness shall govern all organs and
Sec. 5
Transfer of Technology
subsidiary bodies, including the frequency,
Sec. 6
Production policy
duration, and scheduling of meetings. The
Sec. 7
Economic assistance
second principle stated in the Annex is that the
establishment and functioning of the Authority
Sec. 8
Financial terms of contract
shall be based on an evolutionary approach,
Sec. 9
The Finance Committee
taking into account the functional needs of the
organs and bodies concerned.
Application of these principles in the Annex can be illustrated with three examples. In
keeping with the need to track closely the financial implications, the Annex sets up a
15-member Finance Committee, which must include representatives of the five largest
financial contributing nations to the ISA administrative budget. This Committee will
consider any financial or budgetary issues and, operating by consensus, make
recommendations to the Council and Assembly. Second, the Annex provides that an
Economic Planning Commission (EPC), set up by the Convention with functions that
assumed mining was occurring, will not come into being until the Council decides so
sometime in the future. The EPC functions were delegated in the interim to the Legal and
Technical Commission, set up under the Convention. Finally, the Annex provided that the
ISA would adopt the “rules, regulations and procedures necessary for the conduct of
activities in the Area as they progress.” Such rules “shall take into account the terms of this
Agreement, the prolonged delay in commercial deep seabed mining and the likely pace of
activities in the Area.”
ISA Decisionmaking. Among the issues thought to be objectionable in the
Convention, as originally adopted, was the lack of adequate influence by the United States
and other industrialized countries over the decisions taken by the ISA Assembly and Council
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and the absence of language guaranteeing the United States a seat on the Council. The
Annex provides that all substantive decisions of the Assembly shall be taken only upon
recommendation of the Council and/or Finance Committee; if the Assembly does not accept
the Council’s recommendation, the matter is returned to the Council for further
consideration. The United States is now guaranteed a seat on the Council, in perpetuity.
Further, the Annex changes the decision-making structure of the Council to ensure that
industrialized States can make up a blocking vote.
Review Conference. Section 4 of the Annex eliminated the Review Conference
language in the Convention, providing instead that States parties may decide to review the
Convention at any time, rather than after 15 years, and that any amendments resulting from
that review will be subject to the normal procedures for amendment set forth in the
Convention. The special Review Conference language would have enabled entry into force
for all parties of amendments after ratification by only three-fourths of the parties.
Technology Transfer. Section 5 of the Annex states that the mandatory technology
transfer provisions in Article 5 of Annex III of the Convention “shall not apply.” Section 5
replaces those provisions with a set of general principles on the issue of technology transfer.
Obstacle to Development. Concerns that the Convention would deter rather than
promote future development of deep seabed mineral resources and that assured access to
mining by qualified entities would be denied are addressed in the Annex at Sections 2, 6, and
8, respectively, which
! terminates the provision on production limits of seabed-based mining in
order to protect land-based production;
! replaces elaborate and expensive (including an annual fixed fee of $1
million) financial terms of contract, with a set of principles, and reduces the
$500,000 application fee to $250,000; and
! modifies Annex IV of the Convention so that the Enterprise would become
operational only upon a decision of the Council. The Enterprise would be
subject to the same obligations applicable to other miners, and the Enterprise
would conduct its initial operation through joint ventures. The special
privileges accorded to the Enterprise under the Convention are eliminated.
Adherence to the Agreement and the Convention
The Agreement was open for signature for a 12-month period, ending July 28, 1995.
After that date, any ratification, formal confirmation of, or accession to the Convention is
automatic consent to be bound by the Agreement. Since the Agreement’s purpose is to
promote universal participation in the Convention, the Agreement used several ways to
achieve consent to the Agreement. At the same time, consent language also had to respond
to the legal requirements of the 60-plus States that had already ratified or acceded to the
Convention as well as to those States that had not ratified or acceded to the Convention. The
Agreement had to take effect as the Convention entered into force so as to maintain the
integral link between the two. The link required use of provisional application as a
procedure for operation of the Agreement.
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The Agreement was applied provisionally between November 16, 1994 and July 28,
1996, when it entered into force. For each country, provisional application was “in
accordance with ... national or internal laws and regulations.” Provisional application of the
Agreement terminated when it entered into force on July 28, 1996. States that had not
ratified the Agreement by July 28, could continue membership in the ISA on a provisional
basis (1) through November 16, 1996, if they notified the U.N. of their intention to
participate in the ISA as a member on a provisional basis; and (2) through November 16,
1998, if a request for extension of membership in ISA on a provisional basis beyond 1996
is approved by the ISA Council. Thereafter, if a provisional member fails to pay its assessed
contributions or to comply with its other obligations, its membership on a provisional basis
shall be terminated (see Agreement, Annex, Section 1, para. 12).
The United States announced, when it signed the Agreement on July 29, 1994, that “it
intends to apply the agreement provisionally. Provisional application by the United States
will allow us to advance our seabed mining interests by participating in the International
Seabed Authority from the outset to ensure that the implementation of the regime is
consistent with those interests.” On July 17, 1996, the United States notified the U.N. of “its
intention...to continue to participate as a Member of the International Seabed Authority on
a provisional basis....” This notification was followed by a U.S. request to the ISA Council
for an extension of its provisional membership in the Authority until November 16, 1998.
The diplomatic note continued, “The United States wishes to inform the Council and the
Authority that it will continue to make good faith efforts to become a Party to the Agreement
and the Convention.”
Issues for the Senate
A number of issues may arise during any Senate consideration of the 1982 Convention.
Fundamental is the question of whether the 1994 Agreement “fixes” the deep seabed portions
of the Convention that were at the core of opposition to the original document. Other issues
likely to draw Senate attention include:
! the dispute settlement process set forth in the Convention and the U.S.
declarations on dispute settlement;
! the relationship between U.S. law and various parts of the Convention
regarding use of the world’s oceans;
! U.S. acceptance of the Convention/Agreement interpretation and application
of the common heritage of mankind concept;
! the provisional application procedures as a precedent in the U.S. treaty
process;
! the nature of U.S. commitments undertaken by a decision of the ISA
Council: what does a Council decision commit the U.S. government to do;
! should Congress have a role and if so, under what circumstances? and the
cost and financing of the ISA and U.S. participation therein, now and in the
future.
Is the Convention Really “Fixed”? The Clinton Administration maintained that
the Agreement eliminates or modifies the institutional and economic and commercial
objections of the United States and other industrialized nations to the Convention’s deep
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seabed provisions. The burden of proof that the Convention is “fixed” would appear to
reside with the Administration and with those like-minded experts from the various interest
groups affected by the Convention. The Clinton Administration suggested that only active
U.S. participation in the Convention/Agreement and in the organs and bodies established by
them would ensure that the protections and understandings established by the
Agreement/Annex are applied and strengthened.
Some critics, however, still contend that the Convention is not “fixed,” especially to the
extent it still represents a “giveaway” to developing nations. In countering this view,
proponents would cite a number of changes made in the Agreement:
! financing of Enterprise mining efforts would no longer be subsidized by
mining States;
! specific mandatory requirements for transfer of technology to the Enterprise
or to developing nations have been removed;
! specific requirements protecting land-based minerals producers (mostly
developing countries) are no longer applicable; and
! onerous fees for mining by non-Enterprise entities are no longer required.
Opponents, however, would point to other provisions that remain. For example, the
Convention contains language directing that, as a matter of policy, activities in the
international Area should take into “particular” consideration the interests and needs of
developing States (Article 140, para. 1). Article 140 of the Convention urges promoting the
participation of developing States in activities in the Area. Article 150, on policies relating
to activities in the Area, seeks to ensure the expansion of opportunities for participation in
deep seabed mining, participation in revenues by the Authority and the transfer of technology
to the Enterprise and developing States, and protection of developing countries from adverse
effects on their economies (Article 150 (c), (d), (g), and (h). Section 5, para. 1(b) of the
Agreement urges contractors and their respective sponsoring States to cooperate with the ISA
in facilitating access to technology by the Enterprise or its joint venture, or by the developing
State. In addition, the Agreement provides for establishment of an economic assistance fund
for those developing countries suffering serious adverse effects to their land-based
production of minerals due to seabed mining operations (Section 7). Opponents argue that
the combined effect of these provisions is to preserve a special status for developing States,
at the expense of the United States and other industrialized nations and their companies.
Compulsory Dispute Settlement. The Senate has sometimes been reluctant to
accept broad compulsory dispute settlement language in treaties pending before it. For
example, after nearly 15 years of off-and-on debate, the Senate, in 1935, rejected U.S.
adherence to the 1920 Statute of the Permanent Court of International Justice (PCIJ), the
judicial arm of the League of Nations. In 1946, when the Senate gave its advice and consent
to U.S. ratification of the Statute of the International Court of Justice (ICJ) and acceptance
of the compulsory jurisdiction of the Court (under Article 36, paragraph 2 of the Statute), it
added the words “as determined by the United States” (the Connally reservation) to indicate
the United States would determine whether a question was within its domestic jurisdiction
and thus beyond the jurisdiction of the World Court. (This Article 36 declaration was
withdrawn, effective April 1986, by the executive branch.) In May 1960, the Senate
considered the four 1958 Law of the Sea Conventions and an Optional Protocol providing
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for the compulsory jurisdiction of the ICJ in disputes over the interpretation or application
of the conventions. The Senate rejected the Optional Protocol.
This concern that the United States maintain control over what actions might be taken
against it, internationally, was reenforced during the last months of 1994, during
congressional consideration of the Uruguay Round GATT agreements, the World Trade
Organization, and its dispute settlement procedures. As a potential complaining party, the
United States wanted a strengthened and expedited process; however, as a potential subject
of a complaint, the United States wanted to protect its sovereign control over its own enacted
laws and interests.
The 1982 Law of the Sea Convention was, in 1982, considered unusual in international
law for providing a comprehensive compulsory dispute settlement system. At the same time,
the system’s flexibility of fora available for States parties to use makes it more acceptable
to the United States. The Administration recommended submitting a written declaration
choosing special arbitration under Annex VIII as the means for settling disputes concerning
the interpretation or application of the Convention relating to fisheries, protection and
preservation of the marine environment, marine scientific research, and navigation, including
pollution from vessels and by dumping. Under Annex VIII, each party to the dispute
appoints two members of a special five-member arbitral tribunal and the parties to the
dispute agree to the fifth member of the tribunal who serves as President. For disputes not
covered by Annex VIII, the Administration recommended acceptance of an arbitral tribunal
under Annex VII, that provides that each party to the dispute appoint one member of a
five-person arbitral tribunal and that the remaining three be appointed by agreement between
the disputants. In both these options, the United States would have some flexibility in
determining those involved as tribunal members.
The Administration also recommended the United States opt out of the three binding
dispute settlement procedures where exclusion is permissible: disputes concerning maritime
boundaries between neighboring States, disputes concerning military activities and certain
law enforcement activities, and disputes under consideration by the U.N. Security Council,
under the U.N. Charter. The Administration seems to have recognized the tendency of the
Senate to protect what it considered as encroachments over U.S. sovereignty by
recommending a course of action that would give the United States the greatest degree of
flexibility in accepting compulsory dispute settlement.
Convention and U.S. Law. In the interim period between 1994 and 2003, questions
concerning the relationship between the various parts of the Convention and the body of
current U.S. law appear to have been worked out. Two pieces of legislation — the Fishery
Conservation and Management Act and the Deep Seabed Hard Mineral Resources Act —
had been enacted as interim measures prior to entry into force of a Law of the Sea
Convention. Secretary of State Warren Christopher, in his 1994 letter to the President, noted
that “the Department, along with other concerned agencies, stands ready to work with
Congress toward enactment of legislation necessary to carry out the obligations assumed
under the Convention and Agreement and to permit the United States to exercise rights
granted by the Convention” (Treaty Document 103-39, [http://lugar.senate.gov/sfrc/
presidentialmessage.pdf], p. xi). Correspondence from Secretary Christopher to the
Committee in 1996 indicated that a review of existing laws had led to a “determination that
implementing legislation is not necessary before United States accession.” In October 2003,
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the State Department’s Legal Adviser, William Taft, stated that that circumstance had not
changed (S.Exec.Rept. 108-10, [http://lugar.senate.gov/sfrc/seareport.pdf], p. 176 and p. 22).
Common Heritage. If it becomes a party to the Convention, the United States
accepts that “The Area and its resources are the common heritage of mankind.” At issue is
how the Convention, as modified by the Agreement, defines and interprets that concept, as
applied against the deep seabed beyond national jurisdiction. The State Department position
is that “the Agreement, by restructuring the seabed mining regime along free market lines,
endorses the consistent view of the United States that the common heritage principle fully
comports with private economic activity in accordance with market principles” (Treaty
Document 103-39, [http://lugar.senate.gov/sfrc/presidentialmessage.pdf], p. 61). Opponents
to the Convention, in particular deep seabed mining interests, might argue that in the absence
of a complete restructuring of Part XI to eliminate the Enterprise and even, perhaps, the
Authority, mining under the common heritage concept as defined in the
Convention/Agreement package is still impossible.
Provisional Application. Provisional application is a major vehicle for the
incorporation of the Agreement into the Convention package and for the Agreement’s
operation pending its entry into force. While provisional application is not a new procedure,
it is not commonly used. Article 25 of the 1969 Vienna Convention on the Law of Treaties
recognizes the procedure. A 2001 Senate study observes,
In the United States, provisional application of a treaty may be subject to question
especially if it gives temporary effect to a treaty prior to its receiving the advice and
consent of the Senate. An agreement to apply a treaty provisionally is in essence an
executive agreement to undertake temporarily what the treaty may call for permanently.
(Treaties and Other International Agreements: The Role of the United States Senate,
S.Prt. 106-71, [http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=106_cong_
senate_print&docid=f:66922.pdf], 2001, pp. 113-114.)
Thus, provisional application of the agreement and U.S. participation in the International
Seabed Authority, including the funding for such participation, might be viewed as bypassing
or circumventing the role of the Senate in giving its advice and consent to U.S. adherence
to a treaty.
Opponents have cited the provisional application process in this instance as one through
which the United States has “committed ... to the terms of the Law of the Sea Treaty for up
to four years — even if the Senate never ratifies the Treaty. This may violate the State
Department Basic Authorities Act of 1956 (22 U.S.C. § 2672).” (Representative Fields,
Current Status of the Convention on the Law of the Sea, Hearings, August 11, 1994, p. 5.)
The State Department cites Section 5(a) of the same Act, as amended, as authorizing U.S.
participation in “international activities ... for which provision has not been made by ...
treaty”, with the proviso that such authority is not granted for more than one year without
approval of Congress. The Department further states that section 5(a) “has been construed
to allow participation on a provisional basis in succeeding years if the Congress approves a
budget submission containing a line item covering the activity in question for each such
year.”
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Commitments. An issue raised in Congress, and particularly in the Senate, revolves
around the extent to which U.S. participation in a decision of a U.N. body — in this case the
U.N. Security Council and its votes on U.N. peacekeeping — might commit the United
States to expend funds and provide personnel for an action not approved by Congress. Some
in Congress might want to institute consultations and reporting requirements on the decisions
taken in the International Seabed Authority and its organs and bodies, especially its Council.
Funding. Another vehicle for congressional tracking of the International Seabed
Authority and the operation of the Convention/Agreement deep seabed regime is through
funding the U.S. contribution to the ISA. U.S. policy between December 1982 and Fiscal
Year 1994 was to withhold the proportionate (25%) share of the U.N. regular budget that
financed the cost of the Preparatory Commission (PrepComm) and Secretariat support for
the PrepComm. If the overall cost of Convention implementation remains modest, as seems
to be the intent in the Agreement/Annex, Section 1, funding a future U.S. contribution might
not be onerous. Any significant increases might signal increases in bureaucracy and
infrastructure that Congress might wish to investigate or at least question the executive
branch.
The cost of Convention implementation, including the ISA, was budgeted at $776,000
for the period November 16, 1994-December 31, 1995. The ISA budgets for 1996 and 1997
were funded from the U.N. regular budget. The 1998 budget of $4.7 million was the first to
be financed from the assessed contributions of its members, including any provisional ISA
members. Congress did not provide the $1,225,000 requested for FY1998, for calendar 1998
assessments, on the basis that the United States had not adhered to the convention. On
September 14, 1998, the State Department submitted to Congress a reprogramming request
for the transfer of $1,224,975 in FY1998 funds from the State Department Contributions to
International Organizations (CIO) account to the Diplomatic and Consular Programs account.
The chairman of the House State Department Appropriations subcommittee, on September
27, 1998, rejected this request on the grounds that “it is difficult to rationalize payment of
funds for provisional membership in an organization in which the U.S. is not likely to
become a member.” The Administration was unsuccessful in its request of $1.5 million for
1999 calendar year assessments in the FY1999 State Department budget submission and did
not include funds in its future requests. However, the U.S. contribution for calendar year
1998 assessments was paid to the ISA in September 2002.
During testimony in October 2003, State Department officials indicated that the annual
U.S. contributions to the Convention’s institutions would be “about three million dollars,
paid to the Law of the Sea Tribunal and the International Seabed Authority from the ...
Department’s Contributions to International Organizations account.” Legal Adviser William
H. Taft specified that the U.S. contribution to the 2003-2004 biennial budget of the ISA
would be “just over $1 million” and the 2004 assessment for the International Tribunal
would be “a little less than $2 million (24% of the total budget) and 22% of the total for the
2005-2006 budget years.” (S.Exec.Rept. 108-10, [http://lugar.senate.gov/sfrc/seareport.pdf],
pp. 86, 94)
Since the Senate did not give its advice and consent to U.S. adherence to the
Convention/Agreement package, the United States did not ratify or accede to the treaty
before November 16, 1998. On that date, when provisional membership ended, the United
States became an Observer state to the Authority. This meant loss of the seats it held on the
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ISA Council, Legal and Technical Commission, and Finance Committee, as well as the
Assembly. These were seats secured as a result of the 1994 Agreement amendments and
considered among the major issues of U.S. concern regarding the Convention. When the ISA
convened in August 1999, Italy was elected to replace the United States on the Council.
CONGRESSIONAL HEARINGS, REPORTS, AND DOCUMENTS
U.S. Congress. House. Committee on International Relations. The United Nations
Convention on the Law of the Sea. Hearing, 108th Congress, 2nd session. May 12, 2004.
Washington, U.S. Govt. Print. Off., 2004. 134 p. (Serial No. 108-136)
U.S. Congress. Senate. Committee on Armed Services. Military Implications of the United
Nations Convention on the Law of the Sea. Hearing, 108th Congress, 2nd session. April
8, 2004. Washington, U.S. Govt. Print. Off., 2005. 122 p. (S. Hrg. 108-796)
U.S. Congress. Senate Committee on Environment and Public Works. United Nations
Convention on the Law of the Sea. Hearing, 108th Congress, 2nd session. March 23,
2004. Washington, U.S. Govt. Print. Off., 2005. 200 p. (S. Hrg. 108-498)
U.S. Congress. Senate. Committee on Foreign Relations. Current Status of the Convention
on the Law of the Sea. Hearing, 103rd Congress, 2nd session. August 11, 1994.
Washington, U.S. Govt. Print. Off., 1994. 94 p. (Hearing, Senate, 103rd Congress, 2nd
session, S. Hrg. 103-737.)
U.S. Congress. Senate. Committee on Foreign Relations. United Nations Convention on
the Law of the Sea. March 11, 2004. Washington, U.S. Govt. Print., 2004. 187 p.
(S.Exec.Rept. 108-10, [http://lugar.senate.gov/sfrc/seareport.pdf], 108th Congress, 2nd
session.) [Hearings included]
CHRONOLOGY
06/08/04 —
The Senate Select Committee on Intelligence held a hearing on the Law of
the Sea Convention.
05/12/04 —
The House International Relations Committee held hearings on the U.N.
Convention on the Law of the Sea.
03/23/04 —
The Senate Environment and Public Works Committee held hearings on the
Law of the Sea Convention.
04/08/04 — The Senate Armed Services Committee held hearings on the military
implications of the U.N. Law of the Sea Convention.
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10/14 & 21/03 — The Senate Foreign Relations Committee held hearings on the Law of
the Sea Convention package, Treaty Document 103-39,
[http://lugar.senate.gov/sfrc/presidentialmessage.pdf].
09/02/99 —
President Clinton signed a proclamation expanding the U.S. contiguous zone
from 12 to 24 nautical miles, thereby increasing the area within which U.S.
authorities can enforce customs, fiscal, immigration, and sanitary laws and
regulations.
05/05/98 —
Four Senators (John McCain, Olympia Snowe, John Chafee, and Frank H.
Murkowski) in a letter to Chairman Jesse Helms “urged favorable
consideration of the Convention on the Law of the Sea by the Senate
Committee on Foreign Relations as soon as possible.”
10/01/96 —
The International Tribunal for the Law of the Sea became operational, with
the 21 judges being formally sworn in on October 18, 1996.
07/28/96 —
The 1994 Agreement entered into force.
06/00/96 —
The International Seabed Authority became fully operational, having come
into existence on November 16, 1994.
10/07/94 —
President Clinton sent Convention/Agreement package to the Senate (Treaty
Doc. 103-39).
07/29/94 —
The United States signed the 1994 Agreement relating to the Implementation
of Part XI of the U.N. Convention on the Law of the Sea.
11/16/93 — The 60th instrument of ratification was received by the United Nations,
thereby triggering entry into force one year later.
12/27/86 —
President Reagan extended the U.S. territorial sea from three to 12 nautical
miles.
03/10/83 —
President Reagan established a U.S. Exclusive Economic Zone extending 200
nautical miles beyond the coasts and issued an oceans policy statement
relating to the United States and the U.N. Convention.
12/10/82 —
The U.N. Convention on the Law of the Sea was opened for signature until
December 9, 1984, and signed by 119 entities. The United States signed only
the Final Act of the Conference.
04/30/82 —
The Conference voted 130 in favor and 4 (Israel, Turkey, United States, and
Venezuela) against, with 17 abstentions, to adopt the Convention.
12/03/73 —
First session of the Third U.N. Conference on the Law of the Sea convened,
starting a process that ended nine years later, on December 10, 1982.
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FOR ADDITIONAL READING
Bandow, Doug. “Don’t Resurrect the Law of the Sea Treaty.” CATO Institute Policy
Analysis No. 552. October 13, 2005. 20 p.
Available at [http://www.cato.org/pub_display.php?pub_id=5124].
Charney, Jonathan I. “The Marine Environment and the 1982 United Nations Convention
on the Law of the Sea.” The International Lawyer, v. 28, Winter 1994: 879-901.
CRS Report RS21894, Law of the Sea Convention: The International Seabed Authority and
Other Convention Bodies: Current Status and U.S. Participation Therein, by Marjorie
Ann Browne.
The Convention on the Law of the Sea; Oceans Conference, Monterey, California; June
1998. [Fourteen papers by a number of Federal agencies] On the State Department
Internet site at [http://www.state.gov/www/global/oes/oceans/980610_los.html].
Galdorisi, George V. and Kevin R. Vienna. Beyond the Law of the Sea: New Directions for
U.S. Oceans Policy. Westport, Connecticut, Praeger, 1997. 229 p.
Law of the Sea Forum: The 1994 Agreement on Implementation of the Seabed Provisions
of the Convention on the Law of the Sea. “The 1994 Agreement and the Convention,”
by Bernard H. Oxman; “International Law Implications of the 1994 Agreement,” by
Louis B. Sohn; and “U.S. Provisional Application of the 1994 Deep Seabed Agreement,
by Jonathan I. Charney. American Journal of International Law, v. 88, October 1994:
687- 714.
Leitner, Peter M. “A Bad Treaty Returns: The Case of the Law of the Sea Treaty.” World
Affairs, v. 160, Winter 1998: 134-150.
Oxman, Bernard H. “United States Interests in the Law of the Sea Convention.” American
Journal of International Law, v. 88, January 1994: 167-178.
Pirtle, Charles E. “Military Uses of Ocean Space and the Law of the Sea in the New
Millennium.” Ocean Development and International Law, v. 31, January-June 2000:
7-45.
Stephens, Dale G. “The Impact of the 1982 Law of the Sea Convention on the Conduct of
Peacetime Naval/Military Operations.” California Western International Law Journal,
v. 29, 1999: 283-311.
Stevenson, John R. and Bernard H. Oxman. “The Future of the United Nations Convention
on the Law of the Sea.” American Journal of International Law, v. 88, July 1994: 488-
498.
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