Law of the Sea Treaty is Being 'Rubber Stamped,' Critic Charges
The Senate Foreign Relations Committee heard clashing views on the 1982 U.N. Law of the Sea treaty Thursday, as a long-time critic accused the panel of acting hastily to “rubber stamp” the accord.
I am not a lawyer. But you don't need to be one to recognize a legal train-wreck in the making. And that is what recent events portend if the U.S. Senate agrees to ratify the U.N. Convention on the Law of the Sea (better known as the Law of the Sea Treaty or LOST) in the next few weeks.
Thomas > Treaties > 103rd Congress > Treaty 103-39
Treaty Number: 103-39
Transmitted: October 06, 1994
Short Title: United Nations Convention on the Law of the Sea
Type: International Law and Organization
Formal Title: 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 of the United Nations Convention on the Law of the Sea of 10 December 1982, with Annex, adopted at New York, July 28, 1994 (the Agreement"), and signed by the United States, subject to ratification, on July 29, 1994.
Senate Executive Report(s): 108-10
Related Document(s): 86-14; Ex.Rept. 108-10
Source: United Nations
Floor Action: October 07, 1994 - Received in the Senate and referred to the Committee on Foreign Relations by unanimous consent.
Floor Action: March 11, 2004 - Reported favorably by Senator Lugar, Committee on Foreign Relations with printed Ex. Rept.108-10 and a resolution of advice and consent to ratification with declarations and understandings. Executive Calendar No. 13.
Resolution: As recommended by the Committee on Foreign Relations:
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") (Treaty 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.
SEC. 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 Sea-Be d 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.
SEC. 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 t o 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)8the requirement that an act of pollution be "wilful" 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 nonmonetary, 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 long-standing sovereig n 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 c onsensus, 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.
SEC. 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 adoptio n.
(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 2, section 2 of the United States Constitution.
(b) Inclusion of Certain Conditions in Instrument of Ratification.-
Index Terms :
LAW OF THE SEA
UNITED NATIONS CONVENTION ON THE LAW OF THE
Control Number: 103TD00039