Oceans & Coastal Resources:
A Briefing Book
Congressional Research Service Report 97-588 ENR
Redistributed as a service of the National Library for the Environment

The Law of the Sea Convention

Prepared by Marjorie Ann Browne

Specialist in International Relations
Foreign Affairs and National Defense Division

Issue Definition
Background and Analysis
Major Elements of the Convention and U.S. Objections
The 1994 Agreement and Annex
Status of the Issue
Continuing Concerns
Sources and References for Further Information

Issue Definition

On October 7, 1994, President Clinton transmitted to the Senate for its consideration the 1982 United Nations Convention on the Law of the Sea and 1994 Agreement relating to the Implementation of Part XI of the United Nations Convention (Treaty Document 103-39).33 The package was referred to the Senate Committee on Foreign Relations. A primary issue for the Senate is whether changes to the seabed mining provisions of the Convention contained in the 1994 Agreement correct the problems that led the United States to oppose the treaty for twelve years.

Background and Analysis

On November 16, 1994, the U.N. Convention on the Law of the Sea entered into force, but without accession by the United States. Although successive U.S. Administrations supported major parts of the 1982 Convention, the United States and other industrialized countries had objected to deep seabed mining elements of the document. In an effort to overcome these objections and achieve universal participation, U.N. Secretary-General Javier Perez de Cuellar initiated consultations in 1990 among interested governments. In April 1993, the Clinton Administration announced it would actively participate in these consultations on the outstanding issues in the seabed mining portions of the Convention.

Pressure to find an acceptable solution to continuing objections by the United States and other countries most capable of deep seabed operation increased beginning in November 1993 when the U.N. Secretary-General received the 60 ratifications required to bring the Convention into force a year later. This, coupled with improvements in the international political climate and greater acceptance worldwide of free market principles, helped move the consultation process along to a successful conclusion in June 1994. On July 28, 1994, the U.N. General Assembly, by a vote of 121 in favor (including the U.S.) to 0 against, and 7 abstentions, adopted Resolution 481263, opening for signature an Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea. The United States signed that Agreement on July 29, 1994. Changes to the Convention contained in the Agreement and its accompanying Annex satisfied U.S. Administration objections to the original document and paved the way for submission in October 1994 of the entire package to the Senate for its consideration.

Major Elements of the Convention and U.S. Objections

The major part of the 1982 Law of the Sea Convention had been supported by U.S. Administrations, beginning with President Reagan, as fulfilling U.S. interests in having a comprehensive legal framework relating to competing uses of the world's oceans. The Convention includes the following provisions: a 12 nautical mile territorial sea limit and definition of innocent passage through the territorial sea; 200 nautical mile exclusive economic zone within which coastal states have jurisdiction over living and nonliving resources, drilling, marine scientific research, and most installations and structures; creation of a free transit regime over, through, and under straits used for international navigation and overlapped by territorial seas; recognition of archipelagic states jurisdiction over adjacent waters and provision of innocent passage through archipelagic waters; coastal state jurisdiction over continental shelf and resources and definition of continental margin limits; preservation of traditional high seas freedoms in areas outside state jurisdiction; protection and preservation of the marine environment; conduct and promotion of marine scientific research; development and transfer of marine technology; comprehensive dispute settlement machinery that seeks to promote compliance with the treaty; establishment of a system of exploitation of resources from the deep seabed area; establishment and operation of an International Seabed Authority (ISA), including a Council and Assembly; and operation of the Enterprise, the mining component of the ISA.

Among the features of the Convention objected to by the United States and others was the lack of adequate influence by the United States and other industrialized countries over the decisions taken by the Assembly and Council of the ISA and the absence of language guaranteeing the United States a seat on the Council. Another major area of U.S. objection concerned the contention that the Convention included provisions that would deter rather then promote future development of deep seabed mineral resources through the application of economic principles inconsistent with free market theories.

The 1994 Agreement and Annex

The 1994 "Agreement relating to the Implementation of Part XI of the United Nations Convention", and its accompanying Annex, is considered an integral part of the Convention package. Part XI and its accompanying annexes contain the regime and international machinery that would govern deep seabed mining. 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 the terms of entry into force of the Agreement and its provisional application.

The Annex contains nine sections, each dealing with a separate set of Convention elements:

Section 1 Costs to states parties and institutional arrangements
Section 2 The Enterprise
Section 3 Decision-making
Section 4 Review Conference
Section 5 Transfer of Technology
Section 6 Production policy
Section 7 Economic assistance
Section 8 Financial terms of contract
Section 9 The Finance Committee

The Annex begins by stating that the principle of cost-effectiveness shall govern all organs and subsidiary bodies, including the frequency, duration, and scheduling of meetings. The second principle stated in the Annex is that the establishment and functioning of the International Seabed Authority (ISA) shall be based on an evolutionary approach, taking into account the functional needs of the organs and bodies concerned.

With regard to U.S. concerns over having adequate influence in the Assembly and Council, the Annex provides that all its substantive decisions shall be taken only upon recommendation of the Council and/or Finance Committee. If the Assembly does not accept the recommendation of the Council, 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.

Section 4 of the Annex eliminates the 1982 Review Conference language in the Convention, providing instead that states parties may decide to review the Convention at any time and that any amendments resulting from that review will be subject to the normal procedures for amendment set forth in the Convention. The 1982 special Review Conference language would have enabled entry into force for all parties of amendments the United States may not have supported, after ratification by only three-fourths of the parties.

Among the provisions aimed at responding to Convention language viewed as deterring development of deep seabed mineral resources, Sections 2, 6, and 8 in the Annex

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 with a set of general principles on the issue less demanding of technology sharing. The Convention provisions were viewed as anti-mining and anti-free market.

Status of the Issue

President Clinton transmitted the Convention/Agreement package to the Senate in October 1994. Support for or opposition to adherence to the agreement may be determined by a number of factors including the strength of support or opposition by various U.S. interest groups, including companies interested in seabed mining. As of March 27, 1997, the Senate Foreign Relations Committee has not held hearings on the package. Until July 28, 1996, when the Agreement entered into force and provisional application ended, the United States applied the Agreement-related parts of the Convention provisionally, pending Senate action. Under provisions of the Agreement, the United States continues membership in the ISA on a provisional basis until November 16, 1998.

As of March 27, 1997, 116 countries were parties to the Convention and 78 countries were parties to the Agreement Relating to Implementation of Part XI. Current information on the status of the Convention and Agreement may be found on the U.N. web page on Internet at the Status of UNCLOS and the Agreement line at "http://www.un.org/Depts/los/".

Sources and References for Further Information

The Law of the Sea: official text of the United Nations Convention on the Law of the Sea with annexes and index; final act of the Third United Nations Conference on the Law of the Sea; introductory material on the convention and the conference. New York, NY: United Nations, 1983. xxxvii, 224 p. United Nations publication sales no. E.83.V.5. (Also available as Senate Treaty Doc. 103-39. Washington, DC: U.S. Govt. Print. Oft, 1994.288 p. Includes a long commentary on the Convention/Agreement by the U.S. Department of State as well as text of the Convention and Agreement.)

Charney, Jonathan I. "Entry into Force of the 1982 Convention on the Law of the Sea." Virginia Journal of International Law, v.35, Winter 1995: 381-404.

-------. "The Marine Environment and the 1982 United Nations Convention on the Law of the Sea." The International Lawyer, v. 28, Winter 1994: 879-901.

Larson, David L., Roth, Michael W. and Selig, Todd I. "An analysis of the Ratification of the UN Convention on the Law of the Sea." Ocean Development and International Law, v.26, 1995: 287-303.

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.

Oxman, Bernard H. "United States Interests in the Law of the Sea Convention." American Journal of International Law, v.88, January 1994: 167-178.

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.

"The New Law of the Sea." [Christopher C. Joyner, ed.] Ocean Development and International Law, v.27, January-June 1996: 1-179 [Special double issue].

U.S. Congress. Senate. Committee on Foreign Relations. Current Status of the Convention on the Law of the Sea. Hearings, 103rd Cong., 2nd Sess. Aug. 11, 1994. Washington, DC: U.S. Govt. Print. Off., 1994. 94 p.

ENDNOTES:

32 Prepared by Marjorie Ann Browne, Specialist in International Relations, Foreign Affairs and National Defense Division.

33 The information in this chapter is drawn from: CRS Report for Congress IB95010. The Law of the Sea Convention and U.S. Policy. [by Marjorie Ann Browne.] Washington, DC: updated regularly. CRS Report for Congress 96-772F. Law of the Sea: the International Seabed Authority--Its Status and U.S. Participation Therein. [by Marjorie Ann Browne.] Washington, DC: Sept.16, 1996. 5 p.


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