[Senate Executive Report 110-9]
[From the U.S. Government Publishing Office]
110th Congress Exec. Rept.
SENATE
1st Session 110-9
======================================================================
CONVENTION ON THE LAW OF THE SEA
_______
December 19, 2007.--Ordered to be printed
_______
Mr. Biden, from the Committee on Foreign Relations,
submitted the following
REPORT
together with
MINORITY VIEWS
[To accompany Treaty Doc. 103-39]
The Committee on Foreign Relations, to which was referred
the United Nations Convention on the Law of the Sea, with
Annexes, done at Montego Bay, December 10, 1982 (the
``Convention''), and the Agreement Relating to the
Implementation of Part XI on the United Nations Convention on
the Law of the Sea, with Annex, adopted at New York on July 28,
1994 and signed by the United States on July 29, 1994 (the
``1994 Agreement'') (Treaty Doc. 103-39), having considered the
same, reports favorably thereon with declarations,
understandings, and conditions as indicated in the resolution
of advice and consent, and recommends that the Senate give its
advice and consent to accession to the Convention and
ratification of the 1994 Agreement, as set forth in this report
and the accompanying resolution of advice and consent.
CONTENTS
Page
I. Purpose..........................................................2
II. Background.......................................................2
III. Major Provisions.................................................3
IV. Entry Into Force and Denunciation................................8
V. Implementing Legislation.........................................8
VI. Committee Action.................................................8
VII. Committee Recommendation and Comments............................9
VIII.Text of Resolution of Advice and Consent to Ratification........19
IX. Minority Views..................................................24
X. Annex--Letters From Other Senate Committees.....................29
I. PURPOSE
The Convention, together with the related 1994 Agreement,
establishes a comprehensive set of rules governing the uses of
the world's oceans, including the airspace above and the seabed
and subsoil below. It divides the seas into maritime zones and
establishes rights, obligations and jurisdiction over each zone
that carefully balance the interests of States in controlling
activities and resources off their own coasts and the interests
of all States in protecting the freedom to use the oceans
without undue interference. Among the central issues addressed
by the Convention and 1994 Agreement are rights and obligations
related to navigation and overflight of the oceans,
exploitation and conservation of ocean-based resources,
protection of the marine environment, and marine scientific
research.
II. BACKGROUND
President Richard M. Nixon, in a statement on oceans policy
issued on May 23, 1970, first proposed the concept of a treaty
that would set forth a legal framework for the oceans.
Negotiations on the Law of the Sea Convention were launched a
little over three years later and occupied a nine-year span
between December 1973 and December 1982, when the final text
was adopted. The impetus for the Convention grew out of two
primary international concerns. First, several coastal and
naval States, including the United States, were concerned that
the rapidly proliferating number of expansive claims regarding
ocean space would restrict fundamental freedom of navigation
rights. Second, a number of developing countries wanted to
guarantee access to resources in the area beyond national
jurisdiction, while national and multinational corporations
wanted an international Convention that would provide legal
certainty to companies interested in deep seabed mining.
The United States and other industrialized countries
supported the treaty that resulted in 1982 with the exception
of the provisions that related to mining of resources from the
seabed, ocean floor and subsoil thereof, beyond the limits of
national jurisdiction. In 1983, President Ronald Reagan issued
a statement on Oceans Policy explaining that because of
enumerated problems with the deep seabed mining provisions the
United States would not sign the Convention, but that otherwise
the treaty ``contains provisions with respect to traditional
uses of the oceans which generally confirm existing maritime
law and practice and fairly balance the interests of all
states.'' Consequently, President Reagan announced that the
United States would act in accordance with the balance of
interests struck in the Convention relating to the
``traditional uses of the oceans--such as navigation and
overflight.''
Other allies, such as the United Kingdom, shared the
concerns expressed by the United States regarding the deep
seabed mining provisions in Part XI of the Convention. As a
result, the Administration of President George H.W. Bush laid
the groundwork for the launch of negotiations on a new
agreement that would modify the deep seabed mining regime in
the Convention to address the various concerns raised. The
result was the 1994 Agreement, which dealt with each of the
problems identified by the United States. Consequently, the
United States signed the 1994 Agreement on July 29, 1994.
President Bill Clinton submitted both agreements to the Senate
in October of that year.
In the 108th Congress, the committee held two hearings on
the Convention in October 2003, in response to the
Administration's designation of the Convention as one of five
``urgent'' treaties on its treaty priority list. In February
2004, the committee unanimously approved the Convention and the
1994 Agreement (Exec. Rpt. 108-10). No action was taken by the
Senate, and under the operation of the Senate rules, the
Convention and the 1994 Agreement were returned to the
committee at the end of the 108th Congress.
On May 19, 2007, President George W. Bush urged the Senate
to approve the Convention during this session of Congress,
stating as follows:
Joining [the Convention] will serve the national
security interests of the United States, including the
maritime mobility of our armed forces worldwide. It
will secure U.S. sovereign rights over extensive marine
areas, including the valuable natural resources they
contain. Accession [to the Convention] will promote
U.S. interests in the environmental health of the
oceans. And it will give the United States a seat at
the table when the rights that are vital to our
interests are debated and interpreted.
As of October 31, 2007, there are 155 Parties to the
Convention, and 131 Parties to the Agreement Relating to the
Implementation of Part XI. Every member country of NATO, except
Turkey and the United States, is a Party to the Convention and
the 1994 Agreement. Most NATO states did not join until the
conclusion of the 1994 Agreement.
III. MAJOR PROVISIONS
A detailed article-by-article analysis of the Convention
and the 1994 Agreement may be found in the September 23, 1994
Letter of Submittal from the Secretary of State to the
President, which is reprinted in full in Treaty Document No.
103-39. The Bush Administration has confirmed its view that,
generally, the Letter of Submittal appropriately analyzes and
interprets the Convention and the 1994 Agreement, and has
furthermore agreed that the declarations and understandings in
the resolution of advice and consent agreed to by the committee
further refine the analysis and interpretations contained in
the Letter of Submittal. The Executive Branch's views on
particular provisions of the Convention and the 1994 Agreement
are also found in testimony and responses to questions for the
record at various hearings held on the Convention and the 1994
Agreement.
In general, the Convention reflects a careful balance
between the interests of the international community in
maintaining freedom of navigation and those of coastal States
in their offshore areas. The United States has important
interests in both arenas. As the world's preeminent maritime
power, the United States has a vital interest in freedom of
navigation both to ensure that our military has the mobility it
needs to protect U.S. security interests worldwide and to
facilitate the transport of goods in international trade. In
2006, 29.7 percent of all U.S. exports were shipped on the
oceans, amounting to over $308 billion in exports. As a major
coastal State, the United States has substantial interests in
developing, conserving, and managing the vast resources of the
oceans off its coasts, in protecting the marine environment,
and in preventing activity off its coasts that threatens the
safety and security of Americans. Preserving the careful
balance the Convention strikes between these various competing
interests is of great importance to the United States. A
summary of the key provisions of the Convention and
Implementing Agreement is set forth below.
Maritime Zones
The Convention establishes a jurisdictional regime for the
world's oceans based on a series of zones defined by reference
to the distance from each State's coast. Under Part II of the
Convention, a State may claim as its territorial sea an area up
to 12 nautical miles (nm) from its coast. A State's territorial
sea is subject to the State's sovereignty. Beyond 12 nm and up
to 24 nm from its coast, a State may claim a contiguous zone in
which the coastal State may exercise the limited control
necessary to prevent or punish infringement of its customs,
fiscal, immigration, or sanitary laws and regulations in its
territory or territorial sea. Beyond its territorial sea, Part
V of the Convention provides that a State may claim an area up
to 200 nm from its coast as an exclusive economic zone (EEZ) in
which it enjoys sovereign rights for the purpose of exploring,
exploiting, conserving and managing living and non-living
natural resources, as well as jurisdiction as provided for in
the Convention with respect to, inter alia, marine scientific
research and the protection and preservation of the marine
environment. The Convention gives the United States the largest
EEZ of any country in the world. The high seas beyond 200 nm
from a State's coastline are open to all uses and are not
subject to the jurisdiction of any State. The Convention
establishes rules for drawing baselines to be used in measuring
the distances from a State's coast that define these various
zones.
The Convention additionally addresses the delimitation of
overlapping territorial seas, exclusive economic zones, and
continental shelves. These provisions are fully consistent with
U.S. law and would not require a change to the current maritime
boundaries of the United States. Moreover, as reflected in
questions for the record that are included in the forthcoming
hearing print, the Convention's provisions would apply only to
maritime boundary delimitation between countries and do not
address boundary delimitation between U.S. States.
The Continental Shelf
Part VI of the Convention provides that a coastal State
exercises sovereign rights for the purpose of exploring and
exploiting the natural resources of its continental shelf,
which is comprised of the seabed and subsoil of the submarine
areas that extend beyond the territorial sea throughout the
natural prolongation of its land territory to the outer edge of
the continental margin, or to a distance of 200 nm from the
baselines where the outer edge of the continental margin does
not extend up to that distance. The natural resources of the
shelf consist of the mineral and other non-living resources of
the seabed and subsoil, together with the living organisms
belonging to sedentary species.
The Convention establishes rules defining the continental
shelf, as well as an expert body--the Commission on the Limits
of the Continental Shelf--to consider and make recommendations
to coastal States on matters related to the establishment of
the outer limit of their continental shelf beyond 200 nm. If
the coastal State agrees, the shelf limits set by that State on
the basis of the recommendations are final and binding, thus
providing important stability and certainty to these claims.
The Convention gives the United States one of the largest
continental shelves in the world. In the Arctic, for example,
the U.S. continental shelf could run at least as far as 600 nm
out from the coast.
Under Part XI of the Convention (discussed below), mineral
resources of the deep seabed (i.e., the seafloor beyond
national jurisdiction) are administered by an international
authority established by the Convention, and no State may claim
or exercise sovereignty over the resources thereof, though
States or individuals may exercise certain rights with regard
to minerals in accordance with Part XI, as modified by the 1994
Agreement.
Freedom of Navigation and Overflight
The Convention provides protections for critical freedoms
of navigation and overflight of the world's oceans. These
include the prohibition of territorial sea claims beyond 12 nm
and the express protection for and accommodation of passage
rights through the territorial sea and archipelagic waters,
including transit passage through straits and archipelagic sea
lanes passage. They also include the express protection for and
accommodation of the high seas freedoms of navigation,
overflight, laying of submarine cables and pipelines, and
related uses beyond the territorial sea, including areas where
there are coastal State sovereign rights and jurisdiction, such
as the EEZ and the continental shelf. United States Armed
Forces rely on these navigation and overflight rights daily,
and their protection is of paramount importance to U.S.
national security.
During the course of the committee's review, Members
questioned whether joining the Convention would have an impact
on the Proliferation Security Initiative (PSI). PSI is a global
initiative aimed at stopping shipments of weapons of mass
destruction, their delivery systems, and related materials
worldwide. Testimony from the Executive Branch, including
testimony from the Navy and the Coast Guard, was unanimous in
the view that joining the Convention would have no adverse
impact on, and would in fact strengthen, PSI. In particular,
Admiral Mullen, now Chairman of the Joint Chiefs of Staff,
testified in 2003 that becoming a Party to the Convention
``would greatly strengthen [the Navy's] ability to support the
objectives'' of PSI by reinforcing and codifying freedom of
navigation rights on which the Navy depends for operational
mobility. Admiral Walsh, the current Vice Chief of Naval
Operations, testified on September 27, 2007, that joining the
Convention would help the United States attract new and crucial
PSI partners. Admiral Walsh stated that ``geographically
strategic nations, such as Indonesia and Malaysia, would be
more likely to join PSI if we, in turn, join the Convention.''
Protection and Preservation of the Marine Environment
The Convention includes numerous provisions related to
protection of the marine environment. For example, Part XII
addresses multiple sources of marine pollution, including
pollution from vessels, seabed activities, ocean dumping, and
land-based sources, and promotes continuing improvement in the
health of the world's oceans. Depending upon the source of
marine pollution and the particular maritime zone in question,
Part XII sets forth various obligations and authorizations
relating to coastal States, flag States, and/or all States
(such as to develop international standards). The provisions
encourage Parties to work together to address issues of common
and pressing concern. Another example is Article 21, which
includes important rights for coastal States with regard to
protection of the environment and natural resources in the
territorial sea.
Questions were raised during the course of the committee's
review concerning whether the Convention, including its dispute
settlement provisions, would apply to U.S. land-based
activities. The committee received oral and written testimony
on this question. Article 207 requires coastal States merely to
``take into account'' internationally agreed rules, standards,
and recommended practices and procedures. Alleged marine
pollution by the United States from land-based sources would
not be subject to dispute settlement under the Convention.
Specifically, Article 297(1)(c) provides that only certain
coastal State obligations related to marine pollution are
subject to dispute settlement. Among other things, there needs
to be a ``specified'' international rule or standard
``applicable'' to the coastal State. There are no specified
rules regarding land-based sources that are applicable to the
United States that would be subject to dispute settlement. (As
noted, even if there were specified rules or standards
applicable to the United States, Article 207 would not require
the coastal State to follow such standards, only to take them
into account.) Furthermore, the ``enforcement'' provisions in
Part XII (such as Article 213) do not address Party-to-Party
dispute settlement. Rather, they either allocate enforcement
responsibilities among flag States, port States, and coastal
States or they address enforcement by Parties vis-a-vis private
actors, such as their flag vessels or foreign flag vessels.
Questions were also raised during the course of the
committee's review as to whether provisions in Part XII that
require Parties to take into account internationally agreed
upon rules and standards regarding atmospheric pollution that
affects the marine environment could be construed as committing
the United States to the Kyoto Protocol to the United Nations
Framework Convention on Climate Change, without the Protocol
having been approved by the Senate. As reflected in the record,
Executive Branch officials confirmed that this is not the case.
The United States has not agreed to the Kyoto Protocol, and the
Convention does not apply the Kyoto Protocol to the United
States, either directly or indirectly.
Living Marine Resources
Most living marine resources of importance to coastal
States are located within 200 nm from coasts. The Convention's
authorization of the establishment of EEZs, and provision for
the sovereign rights and management authority of coastal States
over living resources within such EEZs, bring such living
marine resources under the jurisdiction of coastal States. The
Convention provides that each coastal State has the sovereign
right to make determinations under the Convention related to
the utilization, conservation and management of living
resources within its EEZ. The Convention also includes specific
provisions for the conservation of marine mammals. While the
Convention preserves the freedom to fish on the high seas, it
makes that freedom subject to certain obligations, including
the duty to cooperate in the conservation and management of the
living resources in high seas areas.
Marine Scientific Research
Part XIII of the Convention recognizes the critical role of
marine scientific research in understanding oceanic processes
and in informed decision making about uses of the oceans.
Following a maritime zone approach, it provides coastal States
with greater rights to regulate marine scientific research in
their territorial seas than in the EEZ and on the continental
shelf. All States have the right to conduct such research
freely in high seas areas. Part XIII also provides for
international cooperation to promote marine scientific
research.
Deep Seabed Mining
Part XI of the Convention, as fundamentally modified by the
1994 Agreement, establishes a regime governing the exploration
and exploitation of the seabed, ocean floor and subsoil thereof
beyond the limits of national jurisdiction on the basis of
capitalist, market-oriented principles. As modified, Part XI
meets the objections raised by the United States and other
industrialized countries concerning the original Convention. It
is expected to provide a stable and internationally recognized
framework in which mining can proceed in response to demand in
the future for deep seabed minerals. The Convention establishes
an international organization, the International Seabed
Authority, to administer the regime. In light of questions
raised during the committee's review of the Convention and 1994
Agreement, it is worth noting that the Authority is not a
United Nations institution. The Authority is an independent
institution established by the Convention, which is located in
Kingston, Jamaica and currently employs fewer than 40
individuals.
Responding to a principal U.S. objection to the Convention
as it was originally concluded in 1982, the 1994 Agreement
provides for a decisionmaking structure for the Authority that
protects U.S. interests. Under Section 3(15)(a) of the Annex to
the 1994 Agreement, the United States is guaranteed a seat on
the Council in perpetuity. The decisionmaking process within
the Authority is fairly complex, but any decision that would
result in a substantive obligation on the United States, or
that would have financial or budgetary implications, would
require U.S. consent. Moreover, the United States would need to
approve the adoption of any amendment to the deep seabed mining
provisions.
In response to other U.S. objections, the 1994 Agreement
also eliminates mandatory technology transfer provisions and
non-market based controls on the levels of mineral production
from the deep seabed that were part of the Convention as
originally concluded. Moreover, Article 302 of the Convention
explicitly provides that nothing in the Convention requires a
Party to disclose information that ``is contrary to the
essential interests of its security.''
IV. ENTRY INTO FORCE AND DENUNCIATION
In accordance with Article 308 of the Convention and
Article 6 of the 1994 Agreement, the Convention and the 1994
Agreement will enter into force for the United States on the
thirtieth day following the date on which the United States
deposits its instrument of accession to the Convention and its
instrument of ratification to the 1994 Agreement with the
Secretary-General of the United Nations.
A Party may denounce (withdraw from) the Convention on one
year's notice in accordance with Article 317.
V. IMPLEMENTING LEGISLATION
The United States has acted in accordance with the
Convention's balance of interests relating to the traditional
uses of the oceans since it was directed to do so in a 1983
statement issued by President Reagan. The United States does
not need to enact new legislation upon joining the Convention
and the 1994 Agreement to supplement or modify existing U.S.
law. Implementing legislation, however, will be necessary at
some point after U.S. accession in order to enforce decisions
of the Seabed Disputes Chamber, which is addressed below in
connection with understanding 22 of the resolution of advice
and consent.
VI. COMMITTEE ACTION
The Convention and the 1994 Agreement were submitted to the
Senate and referred to the committee on October 7, 1994. Two
hearings were held on October 14, 2003 and October 21, 2003, at
which testimony was received from experts on oceans law and
policy, former U.S. negotiators of the Convention,
representatives of the Departments of State, Defense, and the
U.S. Coast Guard, and representatives of organizations
interested in oceans issues (a transcript of this hearing may
be found in Exec. Rept. 108-10). In February 2004, the
committee ordered the Convention and the 1994 Agreement
favorably reported by a vote of 19-0. No action was taken by
the Senate and, under the operation of the Senate rules, the
Convention and the 1994 Agreement were returned to the
committee at the end of the 108th Congress.
This year, the committee held two public hearings on the
Convention and the 1994 Agreement on September 27 and October
4. (A hearing print of these sessions will be forthcoming.)
Testimony was received from John D. Negroponte, Deputy
Secretary of State; Gordon England, Deputy Secretary of
Defense; Admiral Patrick M. Walsh, Vice Chief of Naval
Operations; Admiral Vern Clark, USN (Ret.), Former Chief of
Naval Operations; Bernard H. Oxman, Professor at the University
of Miami School of Law; Frank J. Gaffney, Jr., President of the
Center for Security Policy; Fred L. Smith, Jr., President of
the Competitive Enterprise Institute; Paul C. Kelly, President
of the Gulf of Mexico Foundation; Joseph J. Cox, President of
the Chamber of Shipping of America; and Douglas R. Burnett,
Partner at Holland & Knight, LLP. On October 31, 2007, the
committee again considered the Convention and the 1994
Agreement, and ordered them favorably reported by a roll call
vote of 17-4, with a quorum present and a majority of those
members physically present and voting in the affirmative. The
following Senators voted in the affirmative: Biden, Dodd,
Kerry, Feingold, Boxer, Nelson, Obama, Menendez, Cardin, Casey,
Webb, Lugar, Hagel, Corker, Sununu, Voinovich, and Murkowski.
The following Senators voted in the negative: Coleman, DeMint,
Isakson, and Vitter.
VII. COMMITTEE RECOMMENDATION AND COMMENTS
The committee recommends that the Senate give its advice
and consent to accession to the Convention and ratification of
the Implementing Agreement. The committee believes that the
Convention advances important U.S. interests in a number of
areas. It advances U.S. national security interests by
preserving the rights of navigation and overflight through and
above the world's oceans on which the military relies to
protect U.S. interests around the world, and it enhances the
protection of these rights by providing binding mechanisms to
enforce them. It advances U.S. economic interests by enshrining
the right of the United States to explore and exploit the vast
natural resources of the oceans out to 200 nm from our
coastline, and of our continental shelf beyond 200 nm, and by
protecting freedom of navigation on the oceans over which 29.7
percent of all U.S. exports and 52.3 percent of all U.S.
imports were transported in 2006. It advances U.S. interests in
the protection of the environment by protecting and preserving
the marine environment from pollution from a variety of
sources, and by establishing a framework for further
international action to combat pollution. Becoming Party to the
Convention also advances the ability of the United States to
play a leadership role in global oceans issues, including by
allowing the United States to participate fully in institutions
created by the Convention such as the International Seabed
Authority, the Commission on the Limits of the Continental
Shelf, and the International Tribunal for the Law of the Sea.
In an era when the United States faces growing energy
vulnerability, failing to accede to the Convention will
constrain the opportunities of U.S. energy companies to explore
beyond 200 nm. Mr. Paul Kelly, testifying on behalf of the oil
and gas industry, asserted that under the Convention, the
United States would have the opportunity to receive
international recognition of its economic sovereignty over more
than 291,000 square miles of extended continental shelf. Much
of this is in the Arctic, which holds approximately one quarter
of the world's undiscovered oil and natural gas, according to
the U.S. Geological Survey World Petroleum Assessment in 2000.
As Mr. Kelly testified to the committee: ``by some estimates,
in the years ahead we could see a historic dividing up of many
millions of square kilometers of offshore territory with
management rights that accrue . . . . So, our question is, how
much longer can the United States afford to be a laggard in
joining this process?''
The committee believes it important that U.S. accession to
the Convention be completed promptly. The Convention became
open for amendment in November 2004. As noted above, in
negotiating the Convention, the United States was successful in
achieving a regime that struck a careful balance in ensuring
protection of many important U.S. interests. If the United
States is not a Party to the Convention, our ability to protect
the critically important balance of rights that we fought hard
to achieve in the Convention will be significantly diminished.
In addition, the Convention's Commission on the Limits of the
Continental Shelf is now making recommendations with regard to
other countries' submissions that could affect the United
States' own extended continental shelf. Full U.S. participation
in this process requires us to be a Party to the Convention.
The President has expressed his strong support for U.S.
accession to the Convention and ratification of the 1994
Agreement. In addition, among others, the National Security
Adviser, the Joint Chiefs of Staff, the Secretaries of Homeland
Security, Commerce and the Interior, four former Commandants of
the U.S. Coast Guard, every living Chief of Naval Operations,
former Secretaries of State Shultz, Haig, Baker and Albright,
and every living Legal Adviser to the U.S. Department of State
have written to the committee to express their support for the
Convention and the 1994 Agreement.
The committee has received letters in support of U.S.
accession to the Convention and ratification of the 1994
Agreement from affected industry groups, environmental groups,
and other affected associations including the Chamber of
Commerce of the United States of America, the Chamber of
Shipping of America, the National Foreign Trade Council, the
American Petroleum Institute, the International Association of
Drilling Contractors, the Independent Petroleum Association of
America, American Exploration and Production Council, U.S. Oil
and Gas Association, National Ocean Industries Association, the
National Marine Manufacturers Association, AT & T, Sprint, Tyco
Communications Inc., the North American Submarine Cable
Association, Pacific Crossing Limited, Pacific Telecom Cable,
the National Fisheries Institute, the U.S. Tuna Foundation, the
Ocean Conservancy, the World Wildlife Fund, the Humane Society
of the United States, the American Bar Association, the Council
on Ocean Law, the U.S. Arctic Research Commission, the Center
for Seafarers' Rights, Citizens for Global Solutions, the
League of Conservation Voters, the National Environmental
Trust, the Natural Resources Defense Council, the Pew Oceans
Commission, and the Transportation Institute. The committee has
also received a statement of support for the Convention and the
1994 Agreement from the U.S. Commission on Oceans Policy (an
official body established by Congress).
The committee has received letters of opposition to U.S.
accession to the Convention and ratification of the 1994
Agreement from the following organizations: The American
Conservative Union, State Department Watch, Freedom Alliance,
America's Survival, and the Competitive Enterprise Institute.
Discussion Regarding the Resolution of Advice and Consent
The committee has included a number of declarations,
understandings, and conditions in the resolution of advice and
consent. Article 309 of the Convention provides that no
reservations or exceptions may be made to the Convention unless
expressly permitted by other articles (such as with respect to
disputes settlement). Article 310 provides that a State may,
however, make statements, however phrased or named, with a
view, inter alia, to harmonizing its laws and regulations with
the provisions of the Convention, provided such statements do
not purport to modify the effect of the Convention in their
application to that State.
Section two of the resolution contains two declarations
relating to the dispute settlement procedures under the
Convention. The first declaration concerns the forum for
dispute settlement. Pursuant to Article 287 of the Convention,
a State, when adhering to the Convention or thereafter, is able
to choose, by written declaration, one or more of the means for
the settlement of disputes (i.e., the International Tribunal
for the Law of the Sea, the International Court of Justice,
arbitration under Annex VII, or special arbitration under Annex
VIII for certain disputes, such as fisheries and marine
scientific research). The declaration states that the United
States chooses special arbitration for all the categories of
disputes to which it may be applied and arbitration for other
disputes.
The second declaration concerns the exclusion of certain
categories of disputes from the dispute settlement procedures.
Article 298 of the Convention permits a State to opt out of
binding dispute settlement procedures with respect to one or
more enumerated categories of disputes, namely disputes
regarding maritime boundaries between neighboring States,
disputes concerning military activities and certain law
enforcement activities, and disputes in respect of which the UN
Security Council is exercising the functions assigned to it by
the UN Charter. The declaration states that the United States
elects to exclude all three of these categories of disputes
from binding dispute settlement, which would include all of the
procedures related thereto.
With respect to disputes concerning military activities,
the declaration further states that U.S. consent to accession
is conditioned upon the 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. Questions were raised during the course of the
committee's review as to whether intelligence activities would
be considered covered by the term ``military activities.''
Consistent with prior testimony from officials of the
Department of Defense and the Central Intelligence Agency
before the Select Committee on Intelligence, the Department of
State confirmed, in a letter to Chairman Biden (included in the
forthcoming hearing print), that intelligence activities at sea
are military activities for purposes of the U.S. dispute
settlement exclusion under the Convention and thus the binding
dispute settlement procedures would not apply to U.S.
intelligence activities at sea.
Section three of the resolution contains a series of
understandings and declarations addressing specific issues
raised by the Convention. The first five understandings relate
principally to freedoms of navigation and overflight and
related uses of the sea under the Convention. As noted above,
these rights and freedoms are of critical importance to the
U.S. military, and in particular its need for global mobility.
The first understanding states that nothing in the
Convention impairs the inherent right of self-defense or rights
during armed conflict, including Convention provisions that
refer to ``peaceful uses'' or ``peaceful purposes.'' This
understanding, which is a statement of fact, underscores the
importance the United States attaches to its right under
international law to take appropriate actions in self-defense
or in times of armed conflict, including, where necessary, the
use of force.
The second, third, and fourth understandings address
navigational rights and freedoms in various maritime zones
under the Convention. The second understanding focuses on
innocent passage in the territorial sea, the third focuses on
transit passage and archipelagic sea lanes passage under Parts
III and IV of the Convention, and the fourth focuses on high
seas freedoms of navigation and overflight in the exclusive
economic zone. Collectively, these understandings confirm that
various activities historically undertaken by the U.S. Armed
Forces in these zones are consistent with the rights and
freedoms set forth in the Convention.
Several points are worth noting in particular in connection
with the second understanding regarding innocent passage:
Paragraph 2(B) clarifies that Article 19(2) of the
Convention contains an exhaustive list of activities
that render passage non-innocent. The committee
understands that the list of activities in no way
narrows the right of innocent passage the United States
currently enjoys under the 1958 Territorial Sea
Convention and customary international law. On the
contrary, the Convention improves upon the 1958
Convention's innocent passage regime from the
perspective of U.S. navigational mobility by
establishing a more objective standard for the meaning
of ``innocent'' passage based on specifically
enumerated activities, and by setting forth an
exhaustive list of those activities that will render
passage not ``innocent.'' (Article 20 provides that
submarines and other underwater vehicles are required
to navigate on the surface and to show their flag in
order to enjoy the right of innocent passage; however,
failure to do so is not characterized as inherently not
``innocent.'')
The committee further understands that, as in the case of
the analogous provisions in the 1958 Convention on the
Territorial Sea and Contiguous Zone (Articles 18, 19, and 20),
the innocent passage provisions of the Convention set forth
conditions for the enjoyment of the right of innocent passage
in the territorial sea but do not prohibit or otherwise affect
activities or conduct that is inconsistent with that right and
therefore not entitled to that right.
Paragraph 2(A) states the U.S. understanding that, among
other things, the ``purpose'' of a ship is not relevant
to the enjoyment of innocent passage, and paragraph
2(C) states the U.S. understanding that a determination
of non-innocence cannot be made, among other things, on
the basis of a ship's ``purpose.'' The reference to
``purpose'' is intended to make clear, for example,
that a ship navigating for the sole purpose of
exercising its right of innocent passage is entitled to
the right of innocent passage but that would not
preclude a ship's purpose from being taken into account
in assessing whether that ship posed a threat to use
force within the meaning of Article 19(2)(a).
Understanding 2(D) reiterates the longstanding U.S.
position that the Convention does not authorize a
coastal State to condition the exercise of the right of
innocent passage by any ships, including warships, on
the giving of prior notification to or the receipt of
prior permission from the coastal State. The
Convention, and this understanding, do not, however,
affect the ability of Parties to the Convention to
agree among themselves to a prior notification regime.
For example, such regimes have been negotiated under
the auspices of the International Maritime
Organization. In this regard, regulation V/11 (ship
reporting systems) and regulation V/19.2.4 (automatic
identification systems) of the regulations annexed to
the International Convention for the Safety of Life at
Sea, 1974, as amended, should be noted.
The fifth understanding concerns marine scientific
research. Part XIII of the Convention addresses the rights of
coastal States to require consent for marine scientific
research undertaken in marine areas under their jurisdiction.
The understanding indicates that the term ``marine scientific
research'' does not include certain activities, such as
military activities, including military surveys. It is an
illustrative list; therefore, there are other activities, such
as operational oceanography, that are also not considered
marine scientific research.
The sixth understanding expresses the U.S. view that those
declarations and statements of other Parties that purport to
limit navigation, overflight, or other rights and freedoms in
ways not permitted by the Convention (such as those not in
conformity with the Convention's provisions relating to straits
used for international navigation) contravene the Convention
(specifically Article 310, which does not permit such
declarations and statements). While it is not legally necessary
for the United States to comment on declarations and statements
that are inconsistent with the Convention, given that
reservations are not permitted under the Convention, the
committee believes it appropriate and desirable to make clear
the U.S. position on such declarations and statements.
The resolution next contains a series of understandings
addressing principally environment-related aspects of the
Convention, including provisions of the Convention addressing
marine pollution enforcement. Over the past decade or more, the
Executive Branch has vigorously enforced U.S. marine pollution
laws consistent with the Convention's provisions relevant to
foreign flag vessels. In light of substantial experience
gained, the Executive Branch has proposed, and the committee
agrees, that it would be desirable to highlight certain aspects
of the Convention's provisions and harmonize certain
terminology as between the Convention and U.S. law. The
committee also notes that marine pollution can come from a
variety of sources. For example, the committee notes that air
pollution from ships, which is the subject of MARPOL Annex VI,
constitutes marine pollution due to the impact such air
pollution can have on the marine environment.
The seventh understanding addresses an unmeritorious
assertion that has occasionally been made in relation to
various U.S. laws that restrict the import of goods to promote
observance of a particular environmental or conservation
standard, such as the protection of dolphins or sea turtles. It
confirms that the Convention in no way limits a State's ability
to prohibit or restrict imports in order to, among other
things, promote or require compliance with environmental and
conservation laws, norms, and objectives.
The eighth understanding states that certain Convention
provisions apply only to a particular source of marine
pollution (namely, pollution from vessels, as referred to in
Article 211) and not other sources of marine pollution, such as
dumping. The ninth understanding harmonizes the Convention's
``clear grounds'' standard in Articles 220 and 226 with the
U.S. ``reasonable suspicion'' standard. The tenth understanding
concerns Article 228(2), which provides for a three-year
statute of limitations concerning certain marine pollution
proceedings. The understanding sets forth the limits of the
applicability of the provision.
The eleventh understanding addresses the scope of Article
230, which governs the use of monetary penalties in cases
involving pollution of the marine environment by foreign
vessels. The understanding harmonizes aspects of Article 230
with U.S. law and practice for the enforcement of pollution
laws. The reference to ``corporal punishment'' in the
understanding is not addressed to any U.S. laws authorizing
such punishment with regard to ship master and sailors (the
committee is unaware of any such laws); rather it is aimed at
other States that may provide for such punishment. The Article
thus provides certain protections for U.S. ship masters and
sailors abroad.
The twelfth understanding clarifies that the marine
pollution provisions of the Convention, specifically sections 6
and 7 of Part XII, do not limit a State's authority to impose
penalties for, among other things, non-pollution offenses (such
as false statement violations under 18 U.S.C. 1001) or marine
pollution violations that take place in a State's ports,
rivers, harbors, or offshore terminals.
The thirteenth understanding provides that the Convention
confirms and does not constrain the longstanding right of a
State to impose and enforce conditions for the entry of foreign
vessels into its ports, rivers, harbors, or offshore terminals.
This sovereign right enables States to address important
concerns, such as security and pollution, regardless of whether
action to address such concerns has been or will be taken at
the international level and regardless of whether or not the
condition is directly related to the ports, rivers, harbors, or
offshore terminals. These conditions might also apply as a
matter of port departure and compliance with such conditions
can be considered in approving subsequent port entries. The
understanding contains illustrative examples of an
environmental nature, namely a requirement that ships exchange
ballast water beyond 200 nautical miles from shore and a
requirement that tank vessels carrying oil be constructed with
double hulls. Another example of the U.S. exercise of this
right is the requirement for prior notice of arrival in port of
foreign vessels.
The fourteenth understanding relates to Article 21(2) of
the Convention, which provides that the laws a coastal State
may adopt relating to innocent passage through the territorial
sea shall not apply to the ``design, construction, manning or
equipment'' of foreign ships unless they are giving effect to
``generally accepted international rules or standards.'' This
understanding makes clear that certain types of measures would
not constitute measures applying to ``design, construction,
manning or equipment'' of foreign ships and would therefore not
be limited by this provision. The list is illustrative, not
exhaustive.
The fifteenth understanding addresses the issue of
potential marine pollution from industrial operations (such as
seafood processing) on board a foreign vessel. While the
Convention does not specifically designate on-board industrial
operations as a source of marine pollution (as it does, for
example, for vessel source pollution and pollution from
dumping), this understanding makes clear that the Convention
nevertheless supports a coastal State's regulation of
discharges into the marine environment resulting from such
operations. A variety of provisions in the Convention might be
applicable depending upon the circumstances. It should be noted
that the United States currently regulates discharges from
seafood processing operations on board foreign vessels in its
territorial sea and EEZ.
Similarly, the sixteenth understanding addresses the issue
of invasive species, which is a major environmental issue
facing many States in the United States. This understanding
affirms that the Convention supports the ability of a coastal
State, such as the United States, to exercise its domestic
authority to regulate the introduction into the marine
environment of alien or new species. A variety of Convention
provisions might be applicable, depending upon the
circumstances (see, e.g., Articles 21, 56, 196, or 211). The
ability to rely on various authorities is important to ensure
that the United States and other coastal States have
appropriate flexibility to fully address this problem.
The seventeenth understanding addresses fisheries
management issues. The United States implements the living
marine resource provisions of the Convention through a variety
of domestic laws. For fisheries issues, these provisions are
implemented primarily through the Magnuson-Stevens Fishery
Conservation and Management Act, 16 U.S.C. 1801 et seq.
(Magnuson-Stevens Act). Article 56(1)(a) of the Convention
establishes that, in the exclusive economic zone, a coastal
State has sovereign rights for the purpose of exploring and
exploiting, conserving and managing the natural resources,
whether living or non-living. In the United States, such
measures have included fisheries management pursuant to the
Magnuson-Stevens Act, the establishment of no-anchoring areas
to protect coral reefs, and the creation of marine sanctuaries
under the National Marine Sanctuaries Act. This provision also
provides authority to address such threats as ship strikes of
cetaceans.
The Magnuson-Stevens Act provides a national framework for
conserving and managing marine fisheries within the U.S. EEZ.
The Act is completely consistent with the Convention and
enables the United States to exercise its rights and implement
its fisheries conservation and management obligations under
Articles 61 and 62 of the Convention. The Magnuson-Stevens Act
provides the United States with the authority to make
determinations related to utilization, conservation and
management of living resources within its EEZ, including
defining optimum yield and allowable catch, considering effects
on non-target species, and determining what, if any, surplus
may exist. Articles 61 and 62 provide that the coastal State
has the exclusive right to make these determinations. In
particular, under both the Magnuson-Stevens Act and Article
62(2), the United States has no obligation to give another
State access to fisheries in its EEZ unless, after determining
the optimum yield and allowable catch under the Act, the United
States has determined both that there is surplus over and above
the allowable catch and that the coastal State does not or will
not have the capacity to harvest that surplus. In such event,
access may be provided under reasonable terms and conditions
established by the coastal State. The Magnuson-Stevens Act and
other legislation provide the United States with the authority
to cooperate with other States in managing fisheries resources
that are highly migratory or that straddle jurisdictional
lines, in order to comply with obligations under Articles 63,
64, 118, and 119. Consistent with Article 297(3), binding
dispute settlement does not apply to disputes relating to a
coastal State's discretionary powers for determining the
allowable catch, its harvesting capacity, the allocation of
surpluses to other States, and the terms and conditions
established in its conservation and management laws and
regulations.
The eighteenth understanding concerns Article 65, which
addresses marine mammals. In part, Article 65 provides that the
Convention does not restrict the right of a coastal State or
the competence of an international organization to take
stricter measures than those provided in the Convention. With
respect to this provision, the understanding notes that it lent
direct support to the establishment of the international
moratorium on commercial whaling that is in place and that it
lends current support to the creation of sanctuaries and other
conservation measures. Article 65 also provides that, in the
case of cetaceans, States shall work through appropriate
international organizations for their conservation, management
and study. The understanding indicates, with respect to this
provision, that such cooperation applies not only to large
whales but to all cetaceans.
The nineteenth understanding makes clear that the term
``sanitary laws and regulations'' in Article 33 is not limited
to the transmittal of human illnesses, but may include, for
example, laws and regulations to protect human health from
pathogens being introduced into the territorial sea. This
example is non-exhaustive.
The next five understandings and declarations generally
address procedural and constitutional matters.
The twentieth understanding relates to decision making in
the Council, the executive organ of the International Seabed
Authority that has substantial decision making authority.
Article 161(8)(d) provides for certain decisions of the Council
to be taken by consensus. The United States will, by virtue of
the 1994 Agreement, have a permanent seat on the Council. As
such, the United States will be in a position to block
consensus in the Council on decisions subject to consensus
decision making. The Convention, as modified by the Agreement,
is structured to ensure consensus decision making for the most
significant decisions, including decisions resulting in binding
substantive obligations on States Parties. The understanding
reinforces the negotiated agreement that decisions adopted by
procedures other than the consensus procedure in Article
161(8)(d) will involve administrative, institutional or
procedural matters and will not result in binding substantive
obligations on the United States.
The twenty-first understanding addresses certain decisions
of the Assembly, the primary body of the International Seabed
Authority. Specifically, the Assembly, under Article 160(2)(e),
assesses the contributions of members to the administrative
budget of the Authority until the Authority has sufficient
income from other sources to meet its administrative expenses.
Section 3(7) of the Annex to the 1994 Agreement provides that
``[d]ecisions of the Assembly . . . having financial or
budgetary implications shall be based on the recommendations of
the Finance Committee.'' Under Section 9(3) of the Annex to the
1994 Implementing Agreement seats are guaranteed on the Finance
Committee for ``the five largest contributors to the
administrative budget of the Authority'' until the Authority
has sufficient funds other than assessed contributions to meet
its administrative expenses. Because such contributions are
based on the United Nations scale of assessments (and because
the United States is the largest contributor on that scale),
the United States will have a seat on the Finance Committee so
long as the Authority supports itself through assessed
contributions. The understanding ties these related provisions
together to make clear that no assessed contributions could be
decided by the Assembly without the agreement of the United
States in the Finance Committee.
The twenty-second declaration addresses Article 39 of Annex
VI of the Convention, which provides for decisions of the
Seabed Disputes Chamber to be enforceable in the territories of
the States Parties in the same manner as judgments or orders of
the highest court of the State Party in whose territory the
enforcement is sought. Because of potential constitutional
concerns regarding direct enforceability of this provision in
U.S. courts and because Article 39 does not require any
particular manner in which Chamber decisions must be made
enforceable, the declaration provides that, for the United
States, such decisions shall be enforceable only in accordance
with procedures established by implementing legislation and
that such decisions shall be subject to such legal and factual
review as is constitutionally required and without precedential
effect in any court of the United States. Given the current
undeveloped state of deep seabed mining, such legislation would
not be necessary before U.S. accession to the Convention.
The twenty-third understanding focuses on the adoption of
amendments to section 4 of Annex VI of the Convention, which
relates to the Seabed Disputes Chamber, which is established
under the Convention to resolve certain disputes arising in
connection with deep sea bed mining. The basic rules for
amending Annex VI are set forth in section 5 of that Annex. It
is clear from Article 41 of that Annex, with respect to
amendments to Annex VI other than to section 4, that the United
States could block adoption of such an amendment (either
through the ability to block afforded by Article 313(2) or
through the consensus procedure at a conference of the States
Parties). Regarding amendments to section 4 of Annex VI,
related to the Seabed Disputes Chamber, Article 41(2) of Annex
VI provides that such amendments may be adopted only in
accordance with Article 314, which in turn requires that such
amendments be approved by the Assembly following approval by
the Council. Article 314 does not specify the decisionmaking
rule by which the Council must approve the amendment before the
Assembly may adopt it; Article 161(8), which lists certain
categories of decisions and their corresponding decision making
rules, also does not specifically address adoption of
amendments to section 4 of Annex IV. Turning to Article
161(8)(f) to determine the default rule for decisions within
the authority of the Council for which the decision making rule
is not specified, the Council is to decide ``by consensus''
which subparagraph of Article 161(8) will apply. Section 3 of
the Annex to the 1994 Agreement conflates subparagraphs (b) and
(c) of Article 161(8), but it does not affect situations where
the Convention, as in the case of 161(8)(f), provides for
decision by consensus in the Council. Because the analysis is
reasonably complex, the committee agrees with the Executive
Branch that an understanding on this point is desirable.
The twenty-fourth declaration relates to the question of
whether the Convention and 1994 Agreement are self-executing in
the United States. The committee has included a declaration
that the Convention and the 1994 Agreement, including
amendments thereto and rules, regulations, and procedures
thereunder, are not self-executing for the United States, with
the exception of provisions related to privileges and
immunities (Articles 177-183, Article 13 of Annex IV, and
Article 10 of Annex VI). Consistent with the view of both the
committee and the Executive Branch, the Convention and 1994
Agreement, including the environmental provisions of the
Convention, do not create private rights of action or other
enforceable individual legal rights in U.S. courts. The United
States, as a Party, would be able to implement the Convention
through existing laws, regulations, and practices (including
enforcement practices), which are consistent with the
Convention and which would not need to change in order for the
United States to meet its Convention obligations. Except as
noted in connection with declaration twenty-two above, the
United States does not need to enact any new legislation to
supplement or modify existing U.S. law.
Section four of the resolution contains five conditions
that relate to procedures within the United States for
considering amendments proposed to be made to the Convention.
The first three conditions provide for the President to inform
and consult with the Foreign Relations Committee about proposed
amendments to the Convention. The fourth condition provides
that all amendments to the Convention, other than amendments
under Article 316(5) of the Convention of a technical or
administrative nature, shall be submitted by the President to
the Senate for its advice and consent. The committee expects
that any such technical or administrative amendments would not
impose substantive obligations upon the United States.
The fifth condition relates to Article 316(5) of the
Convention, which provides for any amendment relating
exclusively to activities in the Area (which is defined in
Article 1(1)(1)) and any amendment to Annex VI to enter into
force for all States Parties one year following the deposit of
instruments of ratification or accession by three fourths of
the States Parties. There is thus a possibility that such an
amendment, if adopted (which would require the consent or
acquiescence of the U.S. Executive Branch via the U.S.
representative on the Council), could enter into force for the
United States without U.S. ratification. The declaration
provides that the United States will take all necessary steps
under the Convention to ensure that amendments subject to this
procedure are adopted in conformity with the treaty clause in
Article II, Section 2 of the Constitution. This might involve
not joining in consensus if an amendment were of such a nature
that it was constitutionally imperative that it receive Senate
advice and consent before binding the United States. The
declaration highlights the amendment procedure but does not
specifically address under what circumstances a constitutional
issue might arise.
VIII. TEXT OF RESOLUTION OF ADVICE AND CONSENT TO RATIFICATION
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO DECLARATIONS AND
UNDERSTANDINGS.
The Senate advises and consents to the accession to the
United Nations Convention on the Law of the Sea, with annexes,
adopted on December 10, 1982 (hereafter in this resolution
referred to as the ``Convention''), and to the ratification of
the Agreement Relating to the Implementation of Part XI of the
United Nations Convention on the Law of the Sea, with annex,
adopted on July 28, 1994 (hereafter in this resolution referred
to as the ``Agreement'') (T.Doc. 103-39), subject to the
declarations of section 2, to be made under articles 287 and
298 of the Convention, the declarations and understandings of
section 3, to be made under article 310 of the Convention, and
the conditions of section 4.
SECTION 2. DECLARATIONS UNDER ARTICLES 287 AND 298.
The advice and consent of the Senate under section 1 is
subject to the following declarations:
(1) The Government of the United States of America
declares, in accordance with article 287(1), that it chooses
the following means for the settlement of disputes concerning
the interpretation or application of the Convention:
(A) a special arbitral tribunal constituted in
accordance with Annex VIII for the settlement of
disputes concerning the interpretation or application
of the articles of the Convention relating to (1)
fisheries, (2) protection and preservation of the
marine environment, (3) marine scientific research, and
(4) navigation, including pollution from vessels and by
dumping; and
(B) an arbitral tribunal constituted in accordance
with Annex VII for the settlement of disputes not
covered by the declaration in subparagraph (A).
(2) The Government of the United States of America
declares, in accordance with article 298(1), that it does not
accept any of the procedures provided for in section 2 of Part
XV (including, inter alia, the Seabed Disputes Chamber
procedure referred to in article 287(2)) with respect to the
categories of disputes set forth in subparagraphs (a), (b), and
(c) of article 298(1). The United States further declares that
its consent to accession to the Convention is conditioned upon
the 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.
SECTION 3. OTHER DECLARATIONS AND UNDERSTANDINGS UNDER ARTICLE 310.
The advice and consent of the Senate under section 1 is
subject to the following declarations and understandings:
(1) The United States understands that nothing in the
Convention, including any provisions referring to ``peaceful
uses'' or ``peaceful purposes,'' impairs the inherent right of
individual or collective self-defense or rights during armed
conflict.
(2) The United States understands, with respect to the
right of innocent passage under the Convention, that--
(A) all ships, including warships, regardless of, for
example, cargo, armament, means of propulsion, flag,
origin, destination, or purpose, enjoy the right of
innocent passage;
(B) article 19(2) contains an exhaustive list of
activities that render passage non-innocent;
(C) any determination of non-innocence of passage by
a ship must be made on the basis of acts it commits
while in the territorial sea, and not on the basis of,
for example, cargo, armament, means of propulsion,
flag, origin, destination, or purpose; and
(D) the Convention does not authorize a coastal State
to condition the exercise of the right of innocent
passage by any ships, including warships, on the giving
of prior notification to or the receipt of prior
permission from the coastal State.
(3) The United States understands, concerning Parts III and
IV of the Convention, that--
(A) all ships and aircraft, including warships and
military aircraft, regardless of, for example, cargo,
armament, means of propulsion, flag, origin,
destination, or purpose, are entitled to transit
passage and archipelagic sea lanes passage in their
``normal mode'';
(B) ``normal mode'' includes, inter alia--
(i) submerged transit of submarines;
(ii) overflight by military aircraft,
including in military formation;
(iii) activities necessary for the security
of surface warships, such as formation steaming
and other force protection measures;
(iv) underway replenishment; and
(v) the launching and recovery of aircraft;
(C) the words ``strait'' and ``straits'' are not
limited by geographic names or categories and include
all waters not subject to Part IV that separate one
part of the high seas or exclusive economic zone from
another part of the high seas or exclusive economic
zone or other areas referred to in article 45;
(D) the term ``used for international navigation''
includes all straits capable of being used for
international navigation; and
(E) the right of archipelagic sea lanes passage is
not dependent upon the designation by archipelagic
States of specific sea lanes and/or air routes and, in
the absence of such designation or if there has been
only a partial designation, may be exercised through
all routes normally used for international navigation.
(4) The United States understands, with respect to the
exclusive economic zone, that--
(A) all States enjoy high seas freedoms of navigation
and overflight and all other internationally lawful
uses of the sea related to these freedoms, including,
inter alia, military activities, such as anchoring,
launching and landing of aircraft and other military
devices, launching and recovering water-borne craft,
operating military devices, intelligence collection,
surveillance and reconnaissance activities, exercises,
operations, and conducting military surveys; and
(B) coastal State actions pertaining to these
freedoms and uses must be in accordance with the
Convention.
(5) The United States understands that ``marine scientific
research'' does not include, inter alia--
(A) prospecting and exploration of natural resources;
(B) hydrographic surveys;
(C) military activities, including military surveys;
(D) environmental monitoring and assessment pursuant
to section 4 of Part XII; or
(E) activities related to submerged wrecks or objects
of an archaeological and historical nature.
(6) The United States understands that any declaration or
statement purporting to limit navigation, overflight, or other
rights and freedoms of all States in ways not permitted by the
Convention contravenes the Convention. Lack of a response by
the United States to a particular declaration or statement made
under the Convention shall not be interpreted as tacit
acceptance by the United States of that declaration or
statement.
(7) The United States understands that nothing in the
Convention limits the ability of a State to prohibit or
restrict imports of goods into its territory in order to, inter
alia, promote or require compliance with environmental and
conservation laws, norms, and objectives.
(8) The United States understands that articles 220, 228,
and 230 apply only to pollution from vessels (as referred to in
article 211) and not, for example, to pollution from dumping.
(9) The United States understands, with respect to articles
220 and 226, that the ``clear grounds'' requirement set forth
in those articles is equivalent to the ``reasonable suspicion''
standard under United States law.
(10) The United States understands, with respect to article
228(2), that--
(A) the ``proceedings'' referred to in that paragraph
are the same as those referred to in article 228(1),
namely those proceedings in respect of any violation of
applicable laws and regulations or international rules
and standards relating to the prevention, reduction and
control of pollution from vessels committed by a
foreign vessel beyond the territorial sea of the State
instituting proceedings; and
(B) fraudulent concealment from an officer of the
United States of information concerning such pollution
would extend the three-year period in which such
proceedings may be instituted.
(11) The United States understands, with respect to article
230, that--
(A) it applies only to natural persons aboard the
foreign vessels at the time of the act of pollution;
(B) the references to ``monetary penalties only''
exclude only imprisonment and corporal punishment;
(C) the requirement that an act of pollution be
``willful'' in order to impose non-monetary penalties
would not constrain the imposition of such penalties
for pollution caused by gross negligence;
(D) in determining what constitutes a ``serious'' act
of pollution, a State may consider, as appropriate, the
cumulative or aggregate impact on the marine
environment of repeated acts of pollution over time;
and
(E) among the factors relevant to the determination
whether an act of pollution is ``serious,'' a
significant factor is non-compliance with a generally
accepted international rule or standard.
(12) The United States understands that sections 6 and 7 of
Part XII do not limit the authority of a State to impose
penalties, monetary or non-monetary, for, inter alia--
(A) non-pollution offenses, such as false statements,
obstruction of justice, and obstruction of government
or judicial proceedings, wherever they occur; or
(B) any violation of national laws and regulations or
applicable international rules and standards for the
prevention, reduction and control of pollution of the
marine environment that occurs while a foreign vessel
is in any of its ports, rivers, harbors, or offshore
terminals.
(13) The United States understands that the Convention
recognizes and does not constrain the longstanding sovereign
right of a State to impose and enforce conditions for the entry
of foreign vessels into its ports, rivers, harbors, or offshore
terminals, such as a requirement that ships exchange ballast
water beyond 200 nautical miles from shore or a requirement
that tank vessels carrying oil be constructed with double
hulls.
(14) The United States understands, with respect to article
21(2), that measures applying to the ``design, construction,
equipment or manning'' do not include, inter alia, measures
such as traffic separation schemes, ship routing measures,
speed limits, quantitative restrictions on discharge of
substances, restrictions on the discharge and/or uptake of
ballast water, reporting requirements, and record-keeping
requirements.
(15) The United States understands that the Convention
supports a coastal State's exercise of its domestic authority
to regulate discharges into the marine environment resulting
from industrial operations on board a foreign vessel.
(16) The United States understands that the Convention
supports a coastal State's exercise of its domestic authority
to regulate the introduction into the marine environment of
alien or new species.
(17) The United States understands that, with respect to
articles 61 and 62, a coastal State has the exclusive right to
determine the allowable catch of the living resources in its
exclusive economic zone, whether it has the capacity to harvest
the entire allowable catch, whether any surplus exists for
allocation to other States, and to establish the terms and
conditions under which access may be granted. The United States
further understands that such determinations are, by virtue of
article 297(3)(a), not subject to binding dispute resolution
under the Convention.
(18) The United States understands that article 65 of the
Convention lent direct support to the establishment of the
moratorium on commercial whaling, supports the creation of
sanctuaries and other conservation measures, and requires
States to cooperate not only with respect to large whales, but
with respect to all cetaceans.
(19) The United States understands that, with respect to
article 33, the term ``sanitary laws and regulations'' includes
laws and regulations to protect human health from, inter alia,
pathogens being introduced into the territorial sea.
(20) The United States understands that decisions of the
Council pursuant to procedures other than those set forth in
article 161(8)(d) will involve administrative, institutional,
or procedural matters and will not result in substantive
obligations on the United States.
(21) The United States understands that decisions of the
Assembly under article 160(2)(e) to assess the contributions of
members are to be taken pursuant to section 3(7) of the Annex
to the Agreement and that the United States will, pursuant to
section 9(3) of the Annex to the Agreement, be guaranteed a
seat on the Finance Committee established by section 9(1) of
the Annex to the Agreement, so long as the Authority supports
itself through assessed contributions.
(22) The United States declares, pursuant to article 39 of
Annex VI, that decisions of the Seabed Disputes Chamber shall
be enforceable in the territory of the United States only in
accordance with procedures established by implementing
legislation and that such decisions shall be subject to such
legal and factual review as is constitutionally required and
without precedential effect in any court of the United States.
(23) The United States--
(A) understands that article 161(8)(f) applies to the
Council's approval of amendments to section 4 of Annex
VI;
(B) declares that, under that article, it intends to
accept only a procedure that requires consensus for the
adoption of amendments to section 4 of Annex VI; and
(C) in the case of an amendment to section 4 of Annex
VI that is adopted contrary to this understanding, that
is, by a procedure other than consensus, will consider
itself bound by such an amendment only if it
subsequently ratifies such amendment pursuant to the
advice and consent of the Senate.
(24) The United States declares that, with the
exception of articles 177-183, article 13 of Annex IV,
and article 10 of Annex VI, the provisions of the
Convention and the Agreement, including amendments
thereto and rules, regulations, and procedures
thereunder, are not self-executing.
SECTION 4. CONDITIONS.
(a) In General.--The advice and consent of the Senate under
section 1 is subject to the following conditions:
(1) Not later than 15 days after the receipt by the
Secretary of State of a written communication from the
Secretary-General of the United Nations or the
Secretary-General of the Authority transmitting a
proposal to amend the Convention pursuant to article
312, 313, or 314, the President shall submit to the
Committee on Foreign Relations of the Senate a copy of
the proposed amendment.
(2) Prior to the convening of a Conference to
consider amendments to the Convention proposed to be
adopted pursuant to article 312 of the Convention, the
President shall consult with the Committee on Foreign
Relations of the Senate on the amendments to be
considered at the Conference. The President shall also
consult with the Committee on Foreign Relations of the
Senate on any amendment proposed to be adopted pursuant
to article 313 of the Convention.
(3) Not later than 15 days prior to any meeting--
(A) of the Council of the International
Seabed Authority to consider an amendment to
the Convention proposed to be adopted pursuant
to article 314 of the Convention; or
(B) of any other body under the Convention to
consider an amendment that would enter into
force pursuant to article 316(5) of the
Convention; the President shall consult with
the Committee on Foreign Relations of the
Senate on the amendment and on whether the
United States should object to its adoption.
(4) All amendments to the Convention, other
than amendments under article 316(5) of a
technical or administrative nature, shall be
submitted by the President to the Senate for
its advice and consent.
(5) The United States declares that it shall
take all necessary steps under the Convention
to ensure that amendments under article 316(5)
are adopted in conformity with the treaty
clause in Article II, section 2 of the United
States Constitution.
(b) Inclusion of Certain Conditions in Instrument of
Ratification.--Conditions 4 and 5 shall be included in the
United States instrument of ratification to the Convention.
IX. MINORITY VIEWS
Minority Views of Senators DeMint and Vitter
Ronald Reagan Biographer Dinesh D'Souza tells of an
incident that occurred only a few weeks after Reagan was
elected president:
According to aides who were present at the meeting,
Reagan was asked by Alexander Haig, his new Secretary
of State, to approve continuing negotiations for the
Law of the Sea treaty. Reagan said he would not support
the treaty and asked that negotiations be suspended.
Incredulous, Haig tried to make him see the light by
pointing out that discussions had been ongoing for
years and that every recent president and virtually all
leading figures in both Parties accepted the general
framework of the treaty.
``Well, yes,'' Reagan said, ``but you see, Al, that's
what the last election was all about.''
``About the Law of the Sea treaty?'' Haig sneered.
``No,'' Reagan replied. ``It was about not doing
things just because that's the way they've been done
before.''
Since that time, proponents have attempted to paint
Reagan's objections as limited in scope, focused on a few minor
changes to the seabed mining section. Meanwhile, key Reagan
advisers like Ed Meese, Jeanne Kirkpatrick and James Malone
have countered that his concerns were much more broad, relating
to the fundamental collectivist philosophy embodied in the
treaty. They suggested that even if the seabed mining regime
was fixed or even deleted altogether, Reagan would still not
have signed it. Who is correct?
For a quarter century, this question has gone unanswered.
However, we now have new insights, with the release of The
Reagan Diaries. On page 90, we find the answer in President
Reagan's own hand--
Tuesday, June 29 [1982]. Decided in NSC meeting--will
not sign ``Law of the Sea'' Treaty even without seabed
mining provisions.
Reagan's concerns with the treaty were summed up in a 1984
article written by his chief Law of the Sea Negotiator, James
Malone.
The Law of the Sea Treaty's provisions establishing
the deep seabed mining regime were intentionally
designed to promote a new world order--a form of global
collectivism known as the new international economic
order (NIEO) that seeks ultimately the redistribution
of the world's wealth through a complex system of
manipulative central economic planning and bureaucratic
coercion.
This applies not only to the seabed mining regime, but to
all of the treaty with the exception of a few provisions
dealing with navigation. In 1995, Commenting on the 1994
Agreement, Ambassador Malone reiterated his earlier criticism:
This remains the case today. All the provisions from
the past that make such a [new world order] outcome
possible, indeed likely, still stand. It is not true,
as argued by some, and frequently mentioned, that the
U.S. rejected the Convention in 1982 solely because of
technical difficulties with Part XI. The collectivist
and redistributionist provisions of the treaty were at
the core of the U.S. refusal to sign.
We believe certain provisions of the United Nations
Convention on the Law of the Sea, particularly those dealing
with navigation, have merit. We further appreciate the Navy's
interest in the treaty. However, the navigation provisions are
primarily limited to the first 4 parts--11 pages out of a 188
page treaty. The rest establishes a massive bureaucracy to
govern the seas and anything that can be construed to impact
the seas--even if the impact is de minimus.
Taxes.--Article 13 imposes direct ``fees'' on United
States' corporations engaged in seabed mining. Article 82
requires ``payments'' of up to 7 percent for drilling on the
outer continental shelf (OCS). The United States would be
assessed for 7 percent of any oil, natural gas, or other
resources derived by OCS exploration. The payments would be
made directly to the Authority, which would redistribute the
money to the other signatory nations. We believe it is unwise
to create an international organization with taxing authority.
Land-Based Sources of Pollution.--Articles 194, 207, and
213 specifically apply the treaty's provisions to land-based
sources of pollution. These provisions were tested in the ``MOX
case.'' In the case, Ireland sued England over a land-based
nuclear power plant, and the International Tribunal on the Law
of the Sea asserted jurisdiction over the case. In his letter
of submittal, found on the first page of the treaty document,
President Clinton reinforces this point.
As a far-reaching environmental accord addressing
vessel source pollution, pollution from seabed
activities, ocean dumping and land-based sources of
marine pollution, the Convention promotes continuing
improvement in the health of the world's oceans.
There is almost no limit to what any smart international
lawyer could do with these pollution provisions. Further, the
United States has demonstrated historically that it takes its
treaty obligations seriously. Other nations have not done the
same. Why should we bind ourselves to a treaty that will
handcuff our economy, while other nations will simply ignore
the rules? The Senate has voted to reject the Kyoto Agreement
for these same reasons; we should reject this backdoor Kyoto
now.
UN Secretary General Picks Arbitrators.--If ratified, the
United States has stated it will select binding arbitration if
disputes arise. Under Annex VIII, Article 3, in the likely
event that Parties to a dispute cannot agree on arbitrators,
they are selected by the Secretary General of the United
Nations. This was confirmed by key witnesses in support of the
treaty.
It is puzzling why we would want to submit to a judicial
authority selected by the United Nations, given the
organization's corruption scandals, and the fact that of the
152 countries Party to the treaty, the median voting
coincidence with the United States in the 2006 General Assembly
was less than 20 percent. This treaty subjects the United
States to a governing body that is hostile to American
interests.
Nations Vote Against U.S. interests.--Like the United
Nations, the US would be "assessed" for 22 percent of the
operations, even though we only have one vote in the 152 nation
assembly, and no veto. The American people have lost confidence
in Congress. Handing over sovereignty to a new international
body with the power to tax and regulate American citizens and
businesses will not help restore that confidence.
Military Activities.--The treaty reserves the sea for
``peaceful purposes'' and creates a labyrinth of regulations
and restrictions on acceptable activities. We are worried that
the treaty could be used to inhibit legitimate military and
intelligence activities. The Resolution of Ratification
highlights the vagueness of Article 298(1)(b), suggesting that
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. However, this is
not stated in the treaty, and therefore it is our belief that
the court or tribunal will likely make its own decision as to
what constitutes a "military activity" notwithstanding the non-
binding understandings included in the Resolution.
Intelligence Gathering Activities.--The Treaty fails to
clearly include intelligence, surveillance, and reconnaissance
activities under ``military activities.'' While administrations
have stated that these terms are covered, the United States
Senate and House of Representatives consider these separate
functions and have different committees that oversee the
intelligence community and the armed services. When there is a
disagreement on terms, this disagreement is settled by the
courts.
In addition, under Article 19 foreign ships may be denied
passage through a coastal state's Territorial Sea if it engages
in a number of activities, including any act aimed at
collecting information to the prejudice or security of the
coastal state; the carrying out of research or survey
activities; any other activity not having a direct bearing on
passage. These are activities that would be necessary for the
United States to collect intelligence information that could be
crucial to our self-defense.
Article 20 further limits the ability of the United States
to collect intelligence: in the Territorial Sea, submarines and
other underwater vehicles are required to navigate on the
surface and must show their flag. Under the treaty, the United
States would have to surface the submarine, and fly a
conspicuous American flag, so that everyone would know that an
American submarine was in the vicinity. The Treaty fails to
protect the significant role submarines have played, especially
during the Cold War, in gathering intelligence very close to
foreign shorelines.
ANNEX
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Letters From Other Senate Committees