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55U.S. Department of State Dispatch Supplement • February 1995 • Vol. 6, No. 1

Law of the Sea

DISPATCHB U R E A U O F P U B L I C A F F A I R S

U S D E P A R T M E N T O F S T A T E

UPPLEMENTSLaw of the Sea

Convention

Letters of Transmittal andSubmittal and Commentary

F e b r u a r y 1 9 9 5 Vo l . 6 , S u p p l e m e n t N o . 1

54 U.S. Department of State Dispatch Supplement • February 1995 • Vol. 6, No. 1

Law of the Sea

Law of the Sea ConventionLetters of Transmittal and Submittal

And Commentary

Transmittal Letter

1 President Clinton

Submittal Letter

2 Secretary Christopher

Commentary—The 1982 United Nations Convention on theLaw of the Sea and the Agreement on Implementation of Part XI

5 Introduction5 Maritime Zones7 Baselines9 Bays and Other Features

10 Navigation and Overflight10 Internal Waters11 Territorial Sea12 Straits Used for International Navigation14 Archipelagic States15 The Contiguous Zone15 The Exclusive Economic Zone17 High Seas19 Protection and Preservation of the Marine Environment24 Living Marine Resources30 The Continental Shelf33 Deep Sea-bed Mining43 Marine Scientific Research45 Dispute Settlement48 Other Matters48 Maritime Boundary Delimitation49 Enclosed or Semi-enclosed Seas49 Right of Access of Land-locked States

to and from the Sea and Freedom of Transit49 Other Rights of Land-locked States and

Geographically Disadvantaged States49 Development and Transfer of Marine Technology50 Definitions51 General Provisions51 Final Provisions


Law of the Sea

STATUS OF THE CONVENTION AND AGREEMENT

As of February 23, 1995, there are73␣parties to the Law of the Sea Conven-tion, 12 States (of the 73 States andentities to have signed the Agreement)have consented to be bound by theAgreement in Implementation of Part XI,and 116 States and entities have agreedto apply provisionally the Agreement.

Parties to the Convention

Angola, Antigua and Barbuda, Australia,The Bahamas, Bahrain, Barbados,Belize, Bosnia-Herzegovina, Botswana,Brazil, Cameroon, Cape Verde,Comoros, Cook Islands, Costa Rica,Cote d’Ivoire, Cuba, Cyprus, Djibouti,Dominica, Egypt, Federal Republic ofYugoslavia1, Fiji, The Gambia, Germany,Ghana, Grenada, Guinea, Guinea-Bissau, Guyana, Honduras, Iceland,Indonesia, Iraq, Italy, Jamaica, Kenya,Kuwait, Lebanon, The Former YugoslavRepublic of Macedonia, Mali, Malta,Marshall Islands, Mauritius, Mexico, Fed-erated States of Micronesia, Namibia,Nigeria, Oman, Paraguay, Philippines,St. Kitts and Nevis, St. Lucia, St. Vincentand the Grenadines, Sao Tome andPrincipe, Senegal, Seychelles, SierraLeone, Singapore, Slovenia, Somalia, SriLanka, Sudan, Tanzania, Togo, Trinidadand Tobago, Tunisia, Uganda, Uruguay,Vietnam, Yemen, Zaire, Zambia, Zimba-bwe.

In addition, the following countries haveinformally indicated their intention to be-come party to the Convention once theirinternal procedures are completed:

Austria, Belgium, Canada, Chile, China,Denmark, Finland, France, Greece,India, Ireland, Japan, Republic of Korea,

Luxembourg, Netherlands, New Zealand,Panama, Portugal, South Africa, Spain,Sweden, Switzerland, Ukraine, United King-dom.

Agreement in Implementation of Part XI

The following States have consented to bebound by the Agreement:

Australia, Belize, Cook Islands, Germany,Italy, Kenya, Lebanon, The FormerYugoslav Republic of Macedonia, Mauritius,Seychelles, Sierra Leone, Singapore.

The following States and entity have signedthe Agreement:

Algeria, Argentina, Australia, Austria,The␣Bahamas, Barbados, Belgium, Brazil,Burkina Faso, Canada, Cape Verde, China,Cote d’Ivoire, Cyprus, Czech Republic,Denmark, European Community, Fiji,Finland, France, Germany, Greece,Grenada, Guinea, Iceland, India, Indonesia,Ireland, Italy, Jamaica, Japan, Republic ofKorea, Laos, Luxembourg, Malaysia,Maldives, Malta, Mauritania, FederatedStates of Micronesia, Monaco, Mongolia,Morocco, Namibia, Netherlands, NewZealand, Nigeria, Pakistan, Paraguay,Philippines, Poland, Portugal, Senegal,Seychelles, Slovakia, South Africa, Spain,Sri Lanka, Sudan, Swaziland, Sweden,Switzerland, Tanzania, Togo, Trinidad andTobago, Uganda, United Kingdom, UnitedStates, Uruguay, Vanuatu, Zambia, Zimba-bwe.

The following States and entity haveagreed to apply the Agreement provi-sionally:

Afghanistan, Albania, Algeria, Andorra,Argentina, Armenia, Australia, Austria,The Bahamas, Bahrain, Bangladesh,Barbados, Belarus, Belgium, Belize,Benin, Bhutan, Bolivia, Botswana,Brunei, Bulgaria, Burkina Faso, Burma,Burundi, Cambodia, Canada, CapeVerde, Chile, China, Congo, Coted’Ivoire, Cuba, Czech Republic, Egypt,Eritrea, Estonia, Ethiopia, EuropeanCommunity, Fiji, Finland, France, Gabon,Germany, Ghana, Greece, Grenada,Guinea, Guyana, Honduras, Iceland,India, Indonesia, Iraq, Italy, Jamaica,Japan, Kenya, Republic of Korea, Ku-wait, Laos, Libya, Liechtenstein,Luxembourg, Madagascar, Malaysia,Maldives, Malta, Marshall Islands,Mauritania, Mauritius, Federated Statesof Micronesia, Moldova, Monaco,Mongolia, Mozambique, Namibia, Nepal,Netherlands, New Zealand, Nigeria,Norway, Oman, Pakistan, Papua NewGuinea, Paraguay, Philippines, Poland,Qatar, Russia, Senegal, Seychelles,Singapore, Slovakia, South Africa, SriLanka, Sudan, Suriname, Swaziland,Switzerland, Tanzania, Togo, Trinidadand Tobago, Tunisia, Uganda, Ukraine,United Arab Emirates, United Kingdom,United States, Vanuatu, Vietnam, West-ern Samoa, Zambia, Zimbabwe. ❏_____________

1Serbia and Montenegro have assertedthe formation of a joint independentstate, but this entity has not been recog-nized as a state by the United States.


Law of the Sea

Transmittal Letter

Text of a letter from the President tothe U.S. Senate, October 7, 1994.

To the Senate of the United States:

I transmit herewith, for the advice andconsent of the Senate to accession, theUnited Nations Convention on the Lawof the Sea, with Annexes, done atMontego Bay, December 10, 1982 (the“Convention”), and, for the advice andconsent of the Senate to ratification,the Agreement Relating to the Imple-mentation of Part XI of the UnitedNations Convention on the Law of theSea of 10 December 1982, with Annex,adopted at New York, July 28, 1994(the “Agreement”), and signed by theUnited States, subject to ratification,on July 29, 1994. Also transmitted forthe information of the Senate is the re-port of the Department of State withrespect to the Convention and Agree-ment, as well as Resolution II of AnnexI and Annex II of the Final Act of theThird United Nations Conference onthe Law of the Sea.

The United States has basic and en-during national interests in the oceansand has consistently taken the viewthat the full range of these interests isbest protected through a widely ac-cepted international frameworkgoverning uses of the sea. Since thelate 1960s, the basic U.S. strategy hasbeen to conclude a comprehensivetreaty on the law of the sea that will berespected by all countries. Each suc-ceeding U.S. Administration hasrecognized this as the cornerstone ofU.S. oceans policy. Following adoptionof the Convention in 1982, it has beenthe policy of the United States to act ina manner consistent with its provisionsrelating to traditional uses of theoceans and to encourage other coun-tries to do likewise.

The primary benefits of the Con-vention to the United States includethe following:

• The Convention advances the in-terests of the United States as a globalmaritime power. It preserves the rightof the U.S. military to use the world’soceans to meet national security re-quirements and of commercial vesselsto carry sea-going cargoes. It achievesthis, inter alia, by stabilizing thebreadth of the territorial sea at 12 nau-tical miles; by setting forth navigationregimes of innocent passage in the ter-ritorial sea, transit passage in straitsused for international navigation, andarchipelagic sea lanes passage; and byreaffirming the traditional freedoms ofnavigation and overflight in the exclu-sive economic zone and the high seasbeyond.

• The Convention advances the in-terests of the United States as a coastalState. It achieves this, inter alia, byproviding for an exclusive economiczone out to 200 nautical miles fromshore and by securing our rights re-garding resources and artificial islands,installations and structures for eco-nomic purposes over the full extent ofthe continental shelf. These provisionsfully comport with U.S. oil and gas leas-ing practices, domestic management ofcoastal fishery resources, and interna-tional fisheries agreements.

• As a far-reaching environmentalaccord addressing vessel source pollu-tion, pollution from seabed activities,ocean dumping, and land-based sourcesof marine pollution, the Conventionpromotes continuing improvement inthe health of the world’s oceans.

• In light of the essential role ofmarine scientific research in under-standing and managing the oceans, theConvention sets forth criteria and pro-cedures to promote access to marineareas, including coastal waters, forresearch activities.

• The Convention facilitates solu-tions to the increasingly complexproblems of the uses of the ocean—solutions that respect the essentialbalance between our interests as both acoastal and a maritime nation.

• Through its dispute settlementprovisions, the Convention provides formechanisms to enhance compliance byParties with the Convention’s provi-sions.

Notwithstanding these beneficialprovisions of the Convention and bipar-tisan support for them, the UnitedStates decided not to sign the Conven-tion in 1982 because of flaws in theregime it would have established formanaging the development of mineralresources of the seabed beyond na-tional jurisdiction (Part XI). It hasbeen the consistent view of successiveU.S. Administrations that this deepseabed mining regime was inadequateand in need of reform if the UnitedStates was ever to become a Party tothe Convention.

Such reform has now beenachieved. The Agreement, signed bythe United States on July 29, 1994, fun-damentally changes the deep seabedmining regime of the Convention. Asdescribed in the report of the Secretaryof State, the Agreement meets the ob-jections the United States and otherindustrialized nations previously ex-pressed to Part XI. It promises toprovide a stable and internationallyrecognized framework for mining toproceed in response to future demandfor minerals.

Early adherence by the UnitedStates to the Convention and theAgreement is important to maintain astable legal regime for all uses of thesea, which covers more than 70 percentof the surface of the globe. Mainte-nance of such stability is vital to U.S.national security and economicstrength.

I therefore recommend that theSenate give early and favorable consid-eration to the Convention and to theAgreement and give its advice and con-sent to accession to the Convention andto ratification of the Agreement.Should the Senate give such advice andconsent, I intend to exercise the op-tions concerning dispute settlementrecommended in the accompanying re-port of the Secretary of State.

WILLIAM J. CLINTON


Law of the Sea

Third United Nations Conference onthe Law of the Sea be transmitted tothe Senate for its information.

The Convention

The Convention provides a comprehen-sive framework with respect to uses ofthe oceans. It creates a structure forthe governance and protection of allmarine areas, including the airspaceabove and the seabed and subsoil be-low. After decades of dispute andnegotiation, the Convention reflectsconsensus on the extent of jurisdictionthat States may exercise off theircoasts and allocates rights and dutiesamong States.

The Convention provides for a ter-ritorial sea of a maximum breadth of 12nautical miles and coastal State sover-eign rights over fisheries and othernatural resources in an Exclusive Eco-nomic Zone (EEZ) that may extend to200 nautical miles from the coast. In sodoing, the Convention brings most fish-eries under the jurisdiction of coastalStates. (Some 90 percent of living ma-rine resources are harvested within 200nautical miles of the coast.)

The Convention imposes on coastalStates a duty to conserve these re-sources, as well as obligations upon allStates to cooperate in the conservationof fisheries populations on the high seasand such populations that are foundboth on the high seas and within theEEZ (highly migratory stocks, such astuna, as well as “straddling stocks”). Inaddition, it provides for special protec-tive measures for anadromous species,such as salmon, and for marine mam-mals, such as whales.

The Convention also accords thecoastal State sovereign rights over theexploration and development of non-living resources, including oil and gas,found in the seabed and subsoil of thecontinental shelf, which is defined toextend to 200 nautical miles from thecoast or, where the continental marginextends beyond that limit, to the outeredge of the geological continental mar-gin. It lays down specific criteria andprocedures for determining the outerlimit of the margin.

The Convention carefully balancesthe interests of States in controlling ac-tivities off their own coasts with thoseof all States in protecting the freedomto use ocean spaces without undue in-terference. It specifically preservesand elaborates the rights of militaryand commercial navigation and over-flight in areas under coastal Statejurisdiction and on the high seas be-yond. It guarantees passage for allships and aircraft through, under andover straits used for international navi-gation and archipelagos. It alsoguarantees the high seas freedoms ofnavigation, overflight and the layingand maintenance of submarine cablesand pipelines in the EEZ and on thecontinental shelf.

For the non-living resources of theseabed beyond the limits of national ju-risdiction (i.e., beyond the EEZ orcontinental margin, whichever is fur-ther seaward), the Conventionestablishes an international regime togovern exploration and exploitation ofsuch resources. It defines the generalconditions for access to deep seabedminerals by commercial entities andprovides for the establishment of aninternational organization, the Interna-tional Seabed Authority, to grant titleto mine sites and establish necessaryground rules. The system was substan-tially modified by the 1994 Agreement,discussed below.

The Convention sets forth a com-prehensive legal framework and basicobligations for protecting the marineenvironment from all sources of pollu-tion, including pollution from vessels,from dumping, from seabed activitiesand from land-based activities. It cre-ates a positive and unprecedentedregime for marine environmental pro-tection that will compel parties to cometogether to address issues of commonand pressing concern. As such, theConvention is the strongest compre-hensive environmental treaty now inexistence or likely to emerge for quitesome time.

The essential role of marine scien-tific research in understanding andmanaging the oceans is also secured.The Convention affirms the right of allStates to conduct marine scientificresearch and sets forth obligations to

Submittal Letter

Text of a letter from the Secretaryof␣State to the President, Septem-ber 23, 1994.

The President:

I have the honor to submit to you theUnited Nations Convention on the Lawof the Sea, with Annexes, done atMontego Bay, December 10, 1982 (theConvention), and the Agreement Relat-ing to the Implementation of Part XI ofthe United Nations Convention on theLaw of the Sea of 10 December 1982,with Annex, adopted at New York,July 28, 1994 (the Agreement), andsigned by the United States on July 29,1994, subject to ratification. I recom-mend that the Convention and theAgreement be transmitted to the Sen-ate for its advice and consent toaccession and ratification, respectively.

The Convention sets forth a com-prehensive framework governing usesof the oceans. It was adopted by theThird United Nations Conference onthe Law of the Sea (the Conference),which met between 1973 and 1982 tonegotiate a comprehensive treaty relat-ing to the law of the sea.

The Agreement, adopted by UnitedNations General Assembly ResolutionA/RES/48/263 on July 28, 1994, con-tains legally binding changes to thatpart of the Convention dealing with themining of the seabed beyond the limitsof national jurisdiction (Part XI and re-lated Annexes) and is to be applied andinterpreted together with the Conven-tion as a single instrument. TheAgreement promotes universal adher-ence to the Convention by removingobstacles to acceptance of the Conven-tion by industrialized nations, includingthe United States.

I also recommend that ResolutionII of Annex I, governing preparatoryinvestment in pioneer activities relat-ing to polymetallic nodules, and AnnexII, a statement of understanding con-cerning a specific method to be used inestablishing the outer edge of the conti-nental margin, of the Final Act of the


Law of the Sea

promote and cooperate in suchresearch. It confirms the rights ofcoastal States to require consent forsuch research undertaken in marine ar-eas under their jurisdiction. Theserights are balanced by specific criteriato ensure that coastal States exercisethe consent authority in a predictableand reasonable fashion to promotemaximum access for research activities.

The Convention establishes adispute settlement system to promotecompliance with its provisions and thepeaceful settlement of disputes. Theseprocedures are flexible, in providingoptions as to the appropriate meansand fora for resolution of disputes,and␣comprehensive, in subjecting thebulk of the Convention’s provisions toenforcement through binding mecha-nisms. The system also providesParties the means of excluding frombinding dispute settlement certainsensitive political and defense matters.

Further analysis of provisions ofthe Convention’s 17 Parts, comprising320 articles and nine Annexes, is setforth in the Commentary that is en-closed as part of this Report.

The Agreement

The achievement of a widely acceptedand comprehensive law of the sea con-vention—to which the United Statescan become a Party—has been a consis-tent objective of successive U.S.administrations for the past quartercentury. However, the United Statesdecided not to sign the Conventionupon its adoption in 1982 because ofobjections to the regime it would haveestablished for managing the develop-ment of seabed mineral resourcesbeyond national jurisdiction. While theother Parts of the Convention werejudged beneficial for U.S. ocean policyinterests, the United States deter-mined the deep seabed regime of PartXI to be inadequate and in need ofreform before the United Statescould␣consider becoming Party to theConvention.

Similar objections to Part XI alsodeterred all other major industrializednations from adhering to the Conven-tion. However, as a result of theimportant international political and

economic changes of the last decade—including the end of the Cold Warand␣growing reliance on free marketprinciples—widespread recognitionemerged that the seabed mining re-gime of the Convention required basicchange in order to make it generallyacceptable. As a result, informal nego-tiations were launched in 1990, underthe auspices of the United NationsSecretary-General, that resulted inadoption of the Agreement on July 28,1994.

The legally binding changes setforth in the Agreement meet the objec-tions of the United States to Part XI ofthe Convention. The United States andall other major industrialized nationshave signed the Agreement.

The provisions of the Agreementoverhaul the decision-making proce-dures of Part XI to accord the UnitedStates, and others with major economicinterests at stake, adequate influenceover future decisions on possible deepseabed mining. The Agreement guar-antees a seat for the United States onthe critical executive body and requiresa consensus of major contributors forfinancial decisions.

The Agreement restructures thedeep seabed mining regime along freemarket principles and meets the U.S.goal of guaranteed access by U.S. firmsto deep seabed minerals on the basis ofreasonable terms and conditions. Iteliminates mandatory transfer of tech-nology and production controls. Itscales back the structure of the organi-zation to administer the mining regimeand links the activation and operationof institutions to the actual develop-ment of concrete commercial interest inseabed mining. A future decision,which the United States and a few ofits allies can block, is required beforethe organization’s potential operatingarm (the Enterprise) may be activated,and any activities on its part are sub-ject to the same requirements thatapply to private mining companies.States have no obligation to finance theEnterprise, and subsidies inconsistentwith GATT are prohibited.

The Agreement provides forgrandfathering the seabed mine siteclaims established on the basis of theexploration work already conducted bycompanies holding U.S. licenses on the

basis of arrangements “similar to andno less favorable than” the best termsgranted to previous claimants; further,it strengthens the provisions requiringconsideration of the potential environ-mental impacts of deep seabed mining.

The Agreement provides for itsprovisional application from Novem-ber 16, 1994, pending its entry intoforce. Without such a provision, theConvention would enter into force onthat date with its objectionable seabedmining provisions unchanged. Provi-sional application may continue only fora limited period, pending entry intoforce. Provisional application wouldterminate on November 16, 1998, if theAgreement has not entered into forcedue to failure of a sufficient number ofindustrialized States to become Parties.Further, the Agreement provides flex-ibility in allowing States to apply itprovisionally in accordance with theirdomestic laws and regulations.

In signing the agreement on July29, 1994, the United States indicatedthat it intends to apply the agreementprovisionally pending ratification.Provisional application by the UnitedStates will permit the advancement ofU.S. seabed mining interests by U.S.participation in the International Sea-bed Authority from the outset toensure that the implementation of theregime is consistent with those inter-ests, while doing so consistent withexisting laws and regulations.

Further analysis of the Agreementand its Annex, including analysis of theprovisions of Part XI of the Conventionas modified by the Agreement, is alsoset forth in the Commentary that fol-lows.

Status of the ConventionAnd the Agreement

One hundred and fifty-two Statessigned the Convention during the twoyears it was open for signature. Asof␣September 8, 1994, 65 States haddeposited their instruments of ratifica-tion, accession or succession to theConvention. The Convention will enterinto force for these States on Novem-ber 16, 1994, and thereafter for otherStates 30 days after deposit of their in-struments of ratification or accession.


Law of the Sea

The United States joined 120 otherStates in voting for adoption of theAgreement on July 28, 1994; therewere no negative votes and seven ab-stentions. As of September 8, 1994, 50States and the European Communityhave signed the Agreement, of which19 had previously ratified the Conven-tion. Eighteen developed States havesigned the Agreement, including theUnited States, all the members of theEuropean Community, Japan, Canadaand Australia, as well as major devel-oping countries, such as Brazil, Chinaand India.

Relation to the 1958Geneva Conventions

Article 311(1) of the LOS Conventionprovides that the Convention will pre-vail, as between States Parties, overthe four Geneva Conventions on theLaw of the Sea of April 29, 1958, whichare currently in force for the UnitedStates: the Convention on the Territo-rial Sea and the Contiguous Zone, 15UST 1606, TIAS. No. 5639, 516 UNTS205 (entered into force September 10,1964); the Convention on the HighSeas, 13 UST. 2312, TIAS. No. 5200,450 UNTS 82 (entered into force Sep-tember 30, 1962); Convention on theContinental Shelf, 15 UST 471, TIASNo. 5578, 499 UNTS 311 (entered intoforce June 10, 1964); and the Conven-tion on Fishing and Conservation ofLiving Resources of the High Seas, 17UST 138, TIAS No. 5969, 559 UNTS285 (entered into force March 20, 1966).Virtually all of the provisions of theseConventions are either repeated, modi-fied, or replaced by the provisions ofthe LOS Convention.

Dispute Settlement

The Convention identifies four poten-tial fora for binding dispute settlement:

• The International Tribunal forthe Law of the Sea constituted underAnnex VI;

• The International Court of Jus-tice;

• An arbitral tribunal constitutedin accordance with Annex VII; and

• A special arbitral tribunal consti-tuted in accordance with Annex VIIIfor specified categories of disputes.

A State, when adhering to the Con-vention, or at any time thereafter, isable to choose, by written declaration,one or more of these means for thesettlement of disputes under the Con-vention. If the parties to a disputehave not accepted the same procedurefor the settlement of the dispute, itmay be submitted only to arbitration inaccordance with Annex VII, unless theparties otherwise agree. If a Party hasfailed to announce its choice of forum, itis deemed to have accepted arbitrationin accordance with Annex VII.

I recommend that the UnitedStates choose special arbitration for allthe categories of disputes to which itmay be applied and Annex VII arbitra-tion for disputes not covered by theabove, and thus that the United Statesmake the following declaration:

The Government of the UnitedStates of America declares, in accor-dance with paragraph 1 of Article 287,that it chooses the following means forthe settlement of disputes concerningthe interpretation or application of theConvention:

(A) a special arbitral tribunal consti-tuted in accordance with Annex VIIIfor the settlement of disputes concern-ing the interpretation or application ofthe articles of the Convention relatingto (1) fisheries, (2) protection and pres-ervation of the marine environment, (3)marine scientific research, and (4) navi-gation, including pollution from vesselsand by dumping, and

(B) an arbitral tribunal constitutedin accordance with Annex VII for thesettlement of disputes not covered bythe declaration in (A) above.

Subject to limited exceptions, theConvention excludes from binding dis-pute settlement disputes relating to thesovereign rights of coastal States withrespect to the living resources in theirEEZs. In addition, the Conventionpermits a State to opt out of bindingdispute settlement procedures with re-spect to one or more enumeratedcategories of disputes, namely disputesregarding maritime boundaries be-tween neighboring States, disputesconcerning military activities and cer-tain law enforcement activities, anddisputes in respect of which the UnitedNations Security Council is exercisingthe functions assigned to it by theCharter of the United Nations.

I recommend that the UnitedStates elect to exclude all three ofthese categories of disputes from bind-ing dispute settlement, and thus thatthe United States make the followingdeclaration:

The Government of the United States ofAmerica declares, in accordance withparagraph 1 of Article 298, that it doesnot accept the procedures provided forin section 2 of Part XV with respect tothe categories of disputes set forth insubparagraphs (a), (b) and (c) of thatparagraph.

Recommendation

The interested Federal agencies anddepartments of the United States haveunanimously concluded that our inter-ests would be best served by theUnited States becoming a Party to theConvention and the Agreement.

The primary benefits of the Con-vention to the United States includethe following:

• The Convention advances the in-terests of the United States as a globalmaritime power. It preserves the rightof the U.S. military to use the world’soceans to meet national security re-quirements and of commercial vesselsto carry sea-going cargoes. It achievesthis, inter alia, by stabilizing thebreadth of the territorial sea at 12 nau-tical miles; by setting forth navigationregimes of innocent passage in the ter-ritorial sea, transit passage in straitsused for international navigation, andarchipelagic sea lanes passage; and byreaffirming the traditional freedoms ofnavigation and overflight in the EEZand the high seas beyond.

• The Convention advances the in-terests of the United States as a coastalState. It achieves this, inter alia, byproviding for an EEZ out to 200 nauti-cal miles from shore and by securingour rights regarding resources and ar-tificial islands, installations andstructures for economic purposes overthe full extent of the continental shelf.These provisions fully comport withU.S. oil and gas leasing practices, do-mestic management of coastal fisheryresources, and international fisheriesagreements.

• As a far-reaching environmentalaccord addressing vessel source pollu-tion, pollution from seabed activities,


Law of the Sea

ocean dumping and land-based sourcesof marine pollution, the Conventionpromotes continuing improvement inthe health of the world’s oceans.

• In light of the essential role ofmarine scientific research in under-standing and managing the oceans, theConvention sets forth criteria and pro-cedures to promote access to marineareas, including coastal waters, for re-search activities.

• The Convention facilitates solu-tions to the increasingly complexproblems of the uses of the ocean—solutions which respect the essentialbalance between our interests as both acoastal and a maritime nation.

• Through its dispute settlementprovisions, the Convention provides formechanisms to enhance compliance byParties with the Convention’s provi-sions.

• The Agreement fundamentallychanges the deep seabed mining regimeof the Convention. It meets the objec-tions the United States and otherindustrialized nations previously ex-pressed to Part XI. It promises toprovide a stable and internationallyrecognized framework for mining toproceed in response to future demandfor minerals.

The United States has been aleader in the international community’seffort to develop a widely accepted in-ternational framework governing usesof the seas. As a Party to the Conven-tion, the United States will be in aposition to continue its role in this evo-lution and ensure solutions that respectour interests.

All interested agencies and depart-ments, therefore, join the Departmentof State in unanimously recommendingthat the Convention and Agreement betransmitted to the Senate for its adviceand consent to accession and ratifica-tion respectively. They furtherrecommend that they be transmittedbefore the Senate adjourns sine die thisfall.

The Department of State, alongwith other concerned agencies, standsready to work with Congress towardenactment of legislation necessary tocarry out the obligations assumed un-der the Convention and Agreement andto permit the United States to exerciserights granted by the Convention.

WARREN CHRISTOPHER

INTRODUCTION

The United Nations Convention on theLaw of the Sea, opened for signatureon December 10, 1982 (the Conventionor LOS Convention) creates a structurefor the governance and protection of allof the sea, including the airspace aboveand the sea-bed and subsoil below. Inparticular, it provides a framework forthe allocation of jurisdiction, rights andduties among States that carefully bal-ances the interests of States incontrolling activities off their owncoasts and the interests of all States inprotecting the freedom to use oceanspaces without undue interference.

This Commentary begins with adiscussion of the maritime zones recog-nized by the Convention, emphasizingthe rules regarding navigation andoverflight in these areas. Next, theframework for the protection and pres-ervation of the marine environment ofthese areas is examined. Thereafter,the Commentary reviews the regimesfor dealing with the resources in theseareas under the following headings:

• Living marine resources, includ-ing fishing;

• Non-living resources, includingthose of the continental shelf and thedeep sea-bed beyond the limits of na-tional jurisdiction; and,

• Marine scientific research.

The various mechanisms for settlingdisputes regarding these provisions arenext examined. Finally, the Commen-tary considers other provisions of theConvention, including those relating tomaritime boundary delimitation, en-closed and semi-enclosed seas,land-locked and geographically disad-vantaged States, and technologytransfer, as well as the definitions andthe general and final provisions of theConvention.

MARITIME ZONES

The Convention addresses the balanceof coastal and maritime interests withrespect to all areas of the sea. Fromthe absolute sovereignty that everyState exercises over its land territoryand superjacent airspace, the exclusiverights and control that the coastalState exercises over maritime areas offits coast diminish in stages as the dis-tance from the coastal State increases.Conversely, the rights and freedoms ofmaritime States are at their maximumin regard to activities on the high seasand gradually diminish closer to thecoastal State. The balance of interestsbetween the coastal State and maritimeStates thus varies in each zone recog-nized by the Convention.

The location of these zones underthe Convention may be summarized asfollows (and is illustrated in Figure 1).

Internal waters are landward of thebaselines along the coast. They includelakes, rivers and many bays.

Archipelagic waters are encircledby archipelagic baselines establishedby independent archipelagic States.

The territorial sea extends seawardfrom the baselines to a fixed distance.The Convention establishes 12 nauticalmiles as the maximum permissiblebreadth of the territorial sea. (Onenautical mile equals 1,852 meters or6,067 feet; all further references tomiles in this Commentary are to nauti-cal miles.)

The contiguous zone, exclusive eco-nomic zone (EEZ) and continental shelfall begin at the seaward limit of the ter-ritorial sea.

The contiguous zone may extend toa maximum distance of 24 miles fromthe baselines.

The EEZ may extend to a maxi-mum distance of 200 miles from thebaselines.

Commentary—The 1982 United NationsConvention on the Law of the Sea and theAgreement on Implementation of Part XI


Law of the Sea

The continental shelf may extend toa distance of 200 miles from thebaselines or, if the continental marginextends beyond that limit, to the outeredge of the continental margin as de-fined by the Convention. The regime ofthe continental shelf applies to the sea-bed and subsoil and does not affect thestatus of the superjacent waters or air-space.

The regime of the high seas appliesseaward of the EEZ; significant partsof that regime, including freedom ofnavigation and overflight, also applywithin the EEZ.

The sea-bed beyond national juris-diction, called the Area in the Conven-tion, comprises the sea-bed and subsoilbeyond the seaward limit of the conti-nental shelf.

Internal Waters

Article 8(1) defines internal waters asthe waters on the landward side of thebaseline from which the breadth of theterritorial sea is measured. This defini-tion carries forward the traditionaldefinition of internal waters found inarticle 5 of the 1958 Geneva Conventionon the Territorial Sea and the Contigu-ous Zone, 15 UST 1606, TIAS No. 5639,516 UNTS 205 (Territorial Sea Conven-tion). The importance of baselines andthe rules relating to them are discussedin the next section.

Territorial Sea

Article 2 describes the territorial sea asa belt of ocean which is measured sea-ward from the baseline of the coastalState and subject to its sovereignty.This sovereignty also extends to theairspace above and to the sea-bed andsubsoil. It is exercised subject to theConvention and other rules of interna-tional law relating to innocent passage,transit passage, archipelagic sea lanespassage and protection of the marineenvironment. Under article 3, thecoastal State has the right to establishthe breadth of its territorial sea up to alimit not exceeding 12 miles, measuredfrom baselines determined in accor-dance with the Convention.

The adoption of the Convention hassignificantly influenced State practice.Prior to 1982, as many as 25 Statesclaimed territorial seas broader than12␣miles (with attendant detriment tothe freedoms of navigation and over-flight essential to U.S. national securityand commercial interests), while30␣States, including the United States,claimed a territorial sea of less than12␣miles. Since 1983, State practice inasserting territorial sea claims haslargely coalesced around the 12 milemaximum breadth set by the Conven-tion. As of January 1, 1994 128 States

claim a territorial sea of 12 miles orless; only 17 States claim a territorialsea broader than 12 miles.

Since 1988, the United States hasclaimed a 12 mile territorial sea (Presi-dential Proclamation 5928, Decem-ber 27, 1988). Since the President’sOcean Policy Statement of March 10,1983, the United States has recognizedterritorial sea claims of other States upto a maximum breadth of 12 miles.

Contiguous Zone

Article 33 recognizes the contiguouszone as an area adjacent to the territo-rial sea in which the coastal State mayexercise the limited control necessaryto prevent or punish infringement of itscustoms, fiscal, immigration, and sani-tary laws and regulations that occurswithin its territory or territorial sea.Unlike the territorial sea, the contigu-ous zone is not subject to coastal Statesovereignty; vessels and aircraft enjoythe same high seas freedom of naviga-tion and overflight in the contiguouszone as in the EEZ. The maximumpermissible breadth of the contiguouszone is 24 miles measured from thebaseline from which the breadth of theterritorial sea is measured.

In 1972, the United States claimeda contiguous zone beyond its territorialsea (historically claimed as 3 miles) outto 12 miles from the coastal baselines(Department of State Public Notice358, 37 Federal Register 11,906). Since1988, when the United States extendedits territorial sea to 12 miles, the U.S.contiguous zone and territorial seaclaims have thus been coterminous.Under the Convention, the UnitedStates could set the seaward limit of itscontiguous zone at 24 miles, enhancingits ability to deal with illegal immigra-tion, drug trafficking by sea and publichealth matters.

Exclusive Economic Zone (EEZ)

The establishment of the EEZ in theConvention represents a substantialchange in the law of the sea. The un-derlying purpose of the EEZ regime isto balance the rights of coastal States,such as the United States, to resources

Figure 1. The Legal Regimes and Geomorphic Regions

[Graphic Not Available on CD-ROM Version of Dispatch]


Law of the Sea

(e.g., fisheries and offshore oil and gas)and to protect the environment offtheir coasts with the interests of allStates in preserving other high seasrights and freedoms.

Article 55 defines the EEZ as anarea beyond and adjacent to the terri-torial sea, subject to the specific legalregime established in Part V, whichelaborates the jurisdiction, rights andduties of the coastal State and therights, freedoms and duties of otherStates. Pursuant to article 56, thecoastal State exercises sovereign rightsfor the purpose of exploring and ex-ploiting, conserving and managing thenatural resources of the EEZ, whetherliving or non-living. It also has signifi-cant rights in the EEZ with respect toscientific research and the protectionand preservation of the marine envi-ronment. The coastal State does nothave sovereignty over the EEZ, and allStates enjoy the high seas freedoms ofnavigation, overflight, laying and main-tenance of submarine cables andpipelines, and related uses in the EEZ,compatible with other Convention pro-visions. However, all States have aduty, in the EEZ, to comply with thelaws and regulations adopted by thecoastal State in accordance with theConvention and other compatible rulesof international law.

Article 57 requires the seawardlimit of the EEZ to be no more than200␣miles from the baseline from whichthe breadth of the territorial sea ismeasured. The United States declaredits EEZ with this limit by PresidentialProclamation 5030 on March 10, 1983.Congress incorporated the claim inamending the Magnuson Fishery Con-servation and Management Act,16␣U.S.C. § 1801 et seq., Pub. L. 99-659.

As of March 1, 1994, 93 States claiman EEZ. No State claims an EEZbeyond 200 miles from its coastalbaselines, although, as discussed belowin the section on navigation and over-flight, several States claim the right torestrict activities within their EEZsbeyond that which the Convention au-thorizes.

The EEZ of the United States isamong the largest in the world, extend-ing through considerable areas of theAtlantic, Pacific and Arctic Oceans, in-

cluding those around U.S. insular terri-tories. From the perspective ofmanaging and conserving resources offits coasts, the United States gains morefrom the provisions on the EEZ in theConvention than perhaps any otherState.

High Seas

Pursuant to article 86, the regime ofthe high seas applies seaward of theEEZ. The Convention elaborates theregime of the high seas, including theprinciples of the freedom of the highseas, as it developed over centuries,and supplements the regime with newsafety and environmental requirementsand express recognition of the freedomof scientific research. As discussed be-low in connection with living marineresources, the Convention makes theright to fish on the high seas subject tosignificant additional requirementsrelating to conservation and to certainrights, duties and interests of coastalStates.

Continental Shelf

Pursuant to article 76, the continentalshelf of a coastal State comprises thesea-bed and subsoil of the submarineareas that extend beyond its territorialsea throughout the natural prolonga-tion of its land territory to the outeredge of the continental margin, or to adistance of 200 miles from the baselinesfrom which the breadth of the territo-rial sea is measured where the outeredge of the continental margin does notextend up to that distance. The coastalState alone exercises sovereign rightsover the continental shelf for the pur-pose of exploring it and exploitingits␣natural resources. The naturalresources of the continental shelf con-sist of the mineral and other non-livingresources of the sea-bed and subsoiltogether with the living organismsbelonging to sedentary species. Sub-stantial deposits of oil and gas arelocated in the continental shelf off thecoasts of the United States and othercountries.

The Sea-bed BeyondNational Jurisdiction

The Convention defines as the Area thesea-bed and ocean floor and subsoilthereof beyond the limits of national ju-risdiction. Possible exploration anddevelopment of the mineral resourcesfound at or beneath the sea-bed of theArea are to be undertaken pursuant tothe international regime established bythe Convention, as revised by theAgreement, on the basis of the prin-ciple that these resources are thecommon heritage of mankind. TheArea remains open to use by all Statesfor the exercise of high seas freedomsfor defense, scientific research, tele-communications and other purposes.

Airspace

The Convention does not treat airspaceas distinct zones. However, its provi-sions affirm that the sovereignty of acoastal State extends to the airspaceover its land territory, internal watersand territorial sea. The breadth of ter-ritorial airspace is necessarily the sameas the breadth of the underlying terri-torial sea. International airspacebegins at the outer limit of the territo-rial sea.

BASELINES

A State’s maritime zones are measuredfrom the baseline. The rules for draw-ing baselines are contained in articles5␣through 11, 13 and 14 of the Conven-tion. These rules distinguish betweennormal baselines (following the low-water mark along the coast) andstraight baselines (which can be em-ployed only in specified geographicalsituations). The baseline rules takeinto account most of the wide variety ofgeographical conditions existing alongthe coastlines of the world.

Baseline claims can extend mari-time jurisdiction significantly seawardin a manner that prejudices navigation,overflight and other interests. Objec-tive application of baseline rulescontained in the Convention can helpprevent excessive claims in the futureand encourage governments to reviseexisting claims to conform to the rel-evant criteria.


Law of the Sea

Normal Baseline

Pursuant to article 5, the normalbaseline used for measuring thebreadth of the territorial sea is the low-water line along the coast. U.S.practice is consistent with this rule.

Reefs. In accordance with article␣6,in the case of islands situated on atollsor of islands having fringing reefs, thenormal baseline is the seaward low-wa-ter line on the drying reef charted asbeing above the level of chart datum.While the Convention does not addressreef closing lines, any such line is not toadversely affect rights of passage, free-dom of navigation, and other rights forwhich the Convention provides.

Straight Baselines

Purpose. The purpose of authorizingthe use of straight baselines is to allowthe coastal State, at its discretion, toenclose those waters which, as a resultof their close interrelationship with theland, have the character of internal wa-ters. By using straight baselines, aState may also eliminate complex pat-terns, including enclaves, in itsterritorial sea, that would otherwise re-sult from the use of normal baselines inaccordance with article 5. Properlydrawn straight baselines do not resultin extending the limits of the territorialsea significantly seaward from thosethat would result from the use of nor-mal baselines.

With the advent of the EEZ, theoriginal reason for straight baselines(protection of coastal fishing interests)has all but disappeared. Their use in amanner that prejudices internationalnavigation, overflight, and communica-tions interests runs counter to thethrust of the Convention’s strong pro-tection of these interests. In light ofthe modernization of the law of the seain the Convention, it is reasonable toconclude that, as the Convention states,straight baselines are not normalbaselines, straight baselines should beused sparingly, and, where they areused, they should be drawn conserva-tively to reflect the one rationale fortheir use that is consistent with theConvention, namely the simplificationand rationalization of the measurementof the territorial sea and other mari-time zones off highly irregular coasts.

Areas of Application. Straightbaselines, in accordance with article 7,may be used only in two specific geo-graphic circumstances, that is, (a) inlocalities where the coastline is deeplyindented and cut into, or (b) if there is afringe of islands along the coast in theimmediate vicinity of the coast. Even ifthese basic geographic criteria exist inany particular locality, the coastalState is not obliged to employ themethod of straight baselines, but may(like the United States and other coun-tries) instead continue to use thenormal baseline and permissible closinglines across the mouths of rivers andbays.

“Localities Where the CoastlineIs Deeply Indented and Cut Into.”“Deeply indented and cut into” refersto a very distinctive coastal configura-tion. The United States has taken theposition that such a configuration mustfulfill all of the following characteris-tics:

• In a locality where the coastlineis deeply indented and cut into, thereexist at least three deep indentations;

• The deep indentations are inclose proximity to one another; and

• The depth of penetration of eachdeep indentation from the proposedstraight baseline enclosing the indenta-tion at its entrance to the sea is, as arule, greater than half the length ofthat baseline segment.

The term “coastline” is the meanlow-water line along the coast; the term“localities” refers to particular seg-ments of the coastline.

“Fringe of Islands Along theCoast in the Immediate Vicinity ofthe Coast.” “Fringe of islands alongthe coast in the immediate vicinity ofthe coast” refers to a number of islands,within the meaning of article 121(1).The United States has taken the posi-tion that a such a fringe of islands mustmeet all of the following requirements:

• The most landward point of eachisland lies no more than 24 miles fromthe mainland coastline;

• Each island to which a straightbaseline is to be drawn is not more than24 miles apart from the island fromwhich the straight baseline is drawn;and

• The islands, as a whole, mask atleast 50% of the mainland coastline inany given locality.

Criteria for Drawing StraightBaseline Segments. The UnitedStates has taken the position that, to beconsistent with article 7(3), straightbaseline segments must:

• Not depart to any appreciable ex-tent from the general direction of thecoastline, by reference to general direc-tion lines which in each locality shallnot exceed 60 miles in length;

• Not exceed 24 miles in length;and

• Result in sea areas situated land-ward of the straight baseline segmentsthat are sufficiently closely linked tothe land domain to be subject to the re-gime of internal waters.

Minor Deviations. Straightbaselines drawn with minor devia-tions from the foregoing criteria arenot necessarily inconsistent with theConvention.

Economic Interests. Economic in-terests alone cannot justify the locationof particular straight baselines. Indetermining the alignment of particularstraight baseline segments of a baselinesystem which satisfies the deeplyindented or fringing islands criteria, inaccordance with article 7(5), only thoseeconomic interests may be taken intoaccount which are peculiar to the re-gion concerned and only when thereality and importance of the economicinterests are clearly evidenced by longusage.

Basepoints. Except as noted in ar-ticle 7(4), basepoints for all straightbaselines must be located on land terri-tory and situated on or landward of thelow-water line. No straight baselinesegment may be drawn to a basepointlocated on the land territory of anotherState.

Use of Low-tide Elevations asBasepoints in a System of StraightBaselines. In accordance with article7(4), only those low-tide elevationswhich have had built on them light-houses or similar installations may beused as basepoints for establishingstraight baselines. Other low-tide el-evations may not be used as basepointsunless the drawing of baselines to and


Law of the Sea

from them has received general inter-national recognition. The UnitedStates has taken the position that“similar installations” are those thatare permanent, substantial and actuallyused for safety of navigation and that“general international recognition” in-cludes recognition by the majormaritime users over a period of time.

Effect on Other States. Article7(6) provides that a State may notapply the system of straight baselinesin such a manner as to cut off the terri-torial sea of another State from thehigh seas or an EEZ. In addition, ar-ticle 8(2) provides that, where theestablishment of a straight baseline hasthe effect of enclosing as internal wa-ters areas which had not previouslybeen considered as such, a right of in-nocent passage as provided in theConvention shall exist in those waters.Article 35(a) has the same effect withrespect to the right of transit passagethrough straits.

Unstable Coastlines. As providedin article 7(2), where a coastline, whichis deeply indented and cut into orfringed with islands in its immediate vi-cinity, is also highly unstable because ofthe presence of a delta or other naturalconditions, the appropriate basepointsmay be located along the furthest sea-ward extent of the low-water line. Thestraight baseline segments drawn join-ing these basepoints remain effective,notwithstanding subsequent regressionof the low-water line, until the baselinesegments are changed by the coastalState in accordance with internationallaw reflected in the Convention.

Other Baseline Rules

Low-tide Elevations. Under article13, the low-water line on a low-tide el-evation may be used as the baseline formeasuring the breadth of the territorialsea only where that elevation is situ-ated wholly or partly at a distance notexceeding the breadth of the territorialsea measured from the mainland or anisland. Where a low-tide elevation iswholly situated at a distance exceedingthe breadth of the territorial sea fromthe mainland or an island, even if it iswithin that distance measured from a

straight baseline or bay closing line, ithas no territorial sea of its own. Low-tide elevations can be mud flats, orsand bars.

Combination of Methods . Article14 authorizes the coastal State to de-termine each baseline segment usingany of the methods permitted by theConvention that suit the specific geo-graphic condition of that segment, i.e.,the methods for drawing normalbaselines, straight baselines, or closinglines (discussed below).

Harbor Works. In accordance witharticle 11, only those permanent man-made harbor works which form anintegral part of a harbor system, suchas jetties, moles, quays, wharves,breakwaters and sea walls, may beused as part of the baseline for delimit-ing the territorial sea.

Mouths of Rivers. If a river flowsdirectly into the sea without forming anestuary, pursuant to article 9, thebaseline shall be a straight line drawnacross the mouth of the river betweenpoints on the low-water line of itsbanks. If the river forms an estuary,the baseline is determined under theprovisions relating to juridical bays.

BAYS AND OTHER FEATURES

Juridical Bays

A “juridical bay” is a bay meeting thecriteria of article 10(2). Such a bay is awell-marked indentation on the coastwhose penetration is in such proportionto the width of its mouth as to containland-locked waters and constitute morethan a mere curvature of the coast. Anindentation is not a juridical bay unlessits area is as large as, or larger than,that of the semi-circle whose diameteris a line drawn across the mouth of thatindentation.

For the purpose of measurement,article 10(3) provides that the indenta-tion is that area lying between thelow-water mark around the shore ofthe indentation and a line joining thelow-water mark of its natural entrancepoints. Where, because of the presenceof islands, an indentation has more than

one mouth, the semi-circle shall bedrawn on a line as long as the sum totalof the lengths of the lines across thedifferent mouths. Islands within an in-dentation shall be included as if theywere part of the water area of the in-dentation for satisfaction of thesemi-circle test.

Under article 10(4), if the distancebetween the low-water marks of thenatural entrance points of a juridicalbay of a single State does not exceed24␣miles, the juridical bay may be de-fined by drawing a closing line betweenthese two low-water marks, and thewaters enclosed thereby shall be con-sidered as internal waters. Where thedistance between the low-water marksexceed 24 miles, a straight baselineof␣24 miles shall be drawn within thejuridical bay in such a manner as toenclose the maximum area of waterthat is possible within a line of thatlength.

Historic Bays

Article 10(6) exempts so-called historicbays from the rules described above.To meet the standard of customary in-ternational law for establishing a claimto a historic bay, a State must demon-strate its open, effective, long-term,and continuous exercise of authorityover the bay, coupled with acquies-cence by foreign States in the exerciseof that authority. An actual showing ofacquiescence by foreign States in sucha claim is required, as opposed to amere absence of opposition. TheUnited States has in the past claimedDelaware Bay and the Chesapeake Bayas historic. These bodies also satisfythe criteria for juridical bays reflectedin the Convention.

Charts and Publication

Article 16(1) requires that the normalbaseline be shown on large-scale nauti-cal charts, officially recognized by thecoastal State. Alternatively, thecoastal State must provide a list ofgeographic coordinates specifying thegeodetic data. The United Statesdepicts its baseline on official chartswith scales ranging from 1:80,000 toabout 1:200,000. Drying reefs used for


Law of the Sea

locating basepoints shall be shown byan internationally accepted symbol fordepicting such reefs on nautical charts,pursuant to article 6.

To comply with article 16(2), thecoastal State must give due publicity tosuch charts or lists of geographical co-ordinates, and deposit a copy of eachsuch chart or list with the Secretary-General of the United Nations.

Closure lines for bays meeting thesemi-circle test must be given due pub-licity, either by chart indications or bylisted geographic coordinates.

Islands

Article 121(1) defines an island as anaturally formed area of land, sur-rounded by water, which is abovewater at high tide. Baselines are estab-lished on islands, and maritime zonesare measured from those baselines, inthe same way as on other land terri-tory. In addition, as previouslyindicated, there are special rules forusing islands in drawing straightbaselines and bay closing lines, andeven low-tide elevations (which liter-ally do not rise to the status of islands)may be used as basepoints in specifiedcircumstances. These special rules arenot affected by the provision in article121(3) that rocks which cannot sustainhuman habitation or economic life oftheir own shall have no EEZ or conti-nental shelf.

Artificial Islands andOff-shore Installations

Pursuant to articles 11, 60(8), 147(2)and 259, artificial islands, installationsand structures (including such man-made objects as oil drilling rigs,navigational towers, and off-shoredocking and oil pumping facilities) donot possess the status of islands, andmay not be used to establish baselines,enclose internal waters, or establish ormeasure the breadth of the territorialsea, EEZ or continental shelf. Articles60, 177(2), and 260 provide criteria forestablishing safety zones of limitedbreadth to protect artificial islands, in-stallations and structures and thesafety of navigation in their vicinity.

Roadsteads

Article 12 provides that roadsteadsnormally used for the loading, unload-ing, and anchoring of ships, and whichwould otherwise be situated wholly orpartly beyond the outer limits of theterritorial sea, are included within theterritorial sea. Roadsteads includedwithin the territorial sea must beclearly marked on charts by the coastalState. Only the roadstead itself is ter-ritorial sea; roadsteads do not generateterritorial seas around themselves; thepresence of a roadstead does notchange the legal status of the watersurrounding it.

NAVIGATION AND OVERFLIGHT

Internal Waters, Territorial Sea,Straits, Archipelagic States,Exclusive Economic Zone,And High Seas (Parts II-V, VII)

Parts II-V and VII of the Conventioncontain a critical, effective and delicatebalance between the interests of the in-ternational community in maintainingthe freedom of navigation and those ofcoastal States in their offshore areas.As discussed in the previous section ofthis Commentary, the Convention cre-ates a distinct legal regime for eachmaritime zone. This section analyzesthe rules set forth in each of theseregimes regarding the rights, dutiesand jurisdiction of coastal States andmaritime States relating to navigationand overflight.

The maritime zones off the coasts ofthe United States are among the larg-est and most economically productivein the world. The United States alsoremains the world’s preeminent mari-time power. Accordingly, the impor-tance to the United States in maintain-ing the complex balance of interestsrepresented by these provisions of theConvention cannot be overstated.

There are five elements of the Con-vention essential to the maintenance ofthis balance from the perspective ofnavigation, overflight, telecommunica-tions, and related uses:

• The rules for enclosing internalwaters and archipelagic waters withinbaselines, and the prohibition on terri-torial sea claims beyond 12 miles fromthose baselines;

• The express protection for andaccommodation of passage rightsthrough internal waters, the territorialsea, and archipelagic waters, includingtransit passage of straits and archipe-lagic sea lanes passage, as well asinnocent passage;

• The express protection for andaccommodation of the high seas free-doms of navigation, overflight, layingand maintenance of submarine cablesand pipelines, and related uses beyondthe territorial sea, including broad ar-eas where there are substantial coastalState rights and jurisdiction, such asthe EEZ and the continental shelf;

• The prohibition on regional ar-rangements in areas that restrict theexercise of these rights and freedomsby third States without their consent;and

• The right to enforce this balancethrough arbitration or adjudication.

Rights, freedoms and jurisdictionrecognized and established by theConvention are subject to Part XII ofthe Convention on the Protection andPreservation of the Marine Environ-ment, discussed below. This includesthe duty of the flag State to ensurethat␣its ships comply with internationalpollution control standards, and therule of sovereign immunity set forth inarticle 236.

Internal Waters

Internal waters are those landward ofthe baseline. Article 2 makes clear thegenerally recognized rule that coastalState sovereignty extends to internalwaters. In articles 218 and 220, theConvention adds to general notions ofsovereignty and jurisdiction over inter-nal waters by expressly authorizingport State enforcement action withininternal waters for pollution violationsthat have occurred elsewhere. Thisauthorization does not imply any limita-tion on other enforcement actions thatcoastal States may choose to exercisein their ports or other internal waters.

Subject to ancient customs regard-ing the entry of ships in danger ordistress (force majeure) and the excep-tion noted below, the Convention doesnot limit the right of the coastal State


Law of the Sea

to restrict entry into or transit throughits internal waters, port entry, importsor immigration.

The exception to the right of thecoastal State to deny entry into or tran-sit through its internal waters is foundin article 8(2), which provides:

When the establishment of a straightbaseline . . . has the effect of enclosingas internal waters areas which had notpreviously been considered as such, aright of innocent passage as provided inthis Convention shall exist in those wa-ters.

If a foreign flag vessel is found in acoastal State’s internal waters withoutits permission, the full range of reason-able enforcement procedures isavailable against a foreign commercialvessel. With respect to foreign war-ships and other government ships onnon-commercial service, which areimmune from the enforcement jurisdic-tion of all States except the flag State,it may be inferred that a coastal Statemay require such a vessel to leave itsinternal waters immediately (cf. article30). In addition, a port State has theright to refuse to permit foreign shipsfrom entering or remaining within itsinternal waters.

Territorial Sea

Right of Innocent Passage. One ofthe fundamental tenets in the interna-tional law of the sea is that all shipsenjoy the right of innocent passagethrough another State’s territorial sea.(Innocent passage does not include aright of overflight or submerged pas-sage.) This principle finds expressionin article 17, and is developed furtherthroughout Section 3 of Part II of theConvention (articles 17-32). These pre-cise and objective rules governinginnocent passage represent a signifi-cant advance in development of law ofthe sea concepts.

The Convention defines “passage”(article 18) and “innocent passage” (ar-ticle 19), and lists those activitiesconsidered to be non-innocent or“prejudicial to the peace, good order orsecurity of the coastal State” (article19(2)(a)-(l)).

The definition of passage in article18 is essentially the same as that inarticle 14(2) and (3) of the TerritorialSea Convention. Three new elementsappear in article 18. First, the Conven-tion recognizes that ports of a coastalState may be located outside thatState’s internal waters (as, for ex-ample, a roadstead or an offshore deepwater port). Second, the Conventionmakes explicit that passage throughthe territorial sea must be continuousand expeditious. Third, the Conventionprovides that passage includes stop-ping and anchoring for the purpose ofrendering assistance to persons, shipsor aircraft in danger or distress,thereby expanding upon the customaryright of “assistance entry.”

Article 19(2) adds to the basic defi-nition of innocent passage, i.e., thatpassage is innocent so long as it is notprejudicial to the peace, good order, orsecurity of the coastal State, an all-in-clusive list of activities considered to beprejudicial to the peace, good order,and security, and therefore inconsistentwith innocent passage. (Such activitiesdo not include the use of equipment em-ployed to protect the safety or securityof the ship.) This list provides criteriaby which States can determine whethera particular passage is innocent.

Article 19(2) refers to activities thatoccur in the territorial sea. This meansthat any determination of non-inno-cence of passage by a transiting shipmust be made on the basis of acts itcommits while in the territorial sea.Thus cargo, means of propulsion, flag,origin, destination, or purpose of thevoyage cannot be used as criteria in de-termining that the passage is notinnocent. This point is of major na-tional security significance, inparticular because some 40 percent ofU.S. Navy combatant ships use nuclearpropulsion.

Article 20 requires that submarinesand other underwater vehicles mustnavigate on the surface and show theirflag while in the territorial sea, unlessthe coastal State decides to waive thatrequirement (as has been done in theNATO context).

Article 25(1) authorizes the coastalState to take appropriate measures inthe territorial sea to prevent passage

that is not innocent. Pursuant to Ar-ticle 25(2), the coastal State also maytake the measures necessary to pre-vent any breach of the conditions foradmission of foreign ships to internalwaters, as well as calls at a port facilityoutside internal waters.

Article 21(4) requires foreign shipsexercising the right of innocent passageto comply with the laws and regula-tions enacted by the coastal State inconformity with the Convention, aswell as all generally accepted interna-tional regulations relating to theprevention of collisions at sea. Subjectto the provisions regarding shipsentitled to sovereign immunity, thisduty applies to all ships. However, theConvention provides no authority for acoastal State to condition the exerciseof the right of innocent passage by anyships, including warships, on the givingof prior notification to or the receipt ofprior permission from the coastal State.

Articles 21-24 add new and usefuldetails regarding the rights and dutiesof coastal States and foreign ships. Forpurposes such as resource conserva-tion, environmental protection, andnavigational safety, a coastal State mayestablish certain restrictions upon theright of innocent passage of foreignvessels, as set out in article 21. Thislist is essentially new in the Conventionand is exhaustive.

Such restrictions must be reason-able and necessary and not have thepractical effect of denying or impairingthe right of innocent passage. Article24(1) provides that the restrictionsmust not discriminate in form or in factagainst the ships of any State or thosecarrying cargoes to, from, or on behalfof any State. Pursuant to article 22,the coastal State may, where necessaryhaving regard to the safety of naviga-tion, require foreign ships exercisingthe right of innocent passage to utilizedesignated sea lanes and traffic separa-tion schemes; tankers, nuclear poweredvessels, and ships carrying dangerousor noxious substances may be requiredto utilize such designated sea lanes.Article 23 requires such ships, whenexercising innocent passage, to carry


Law of the Sea

documents and observe special precau-tionary measures established for suchships by international agreements, in-cluding the International Conventionfor the Safety of Life at Sea, 1974, 32UST 47, TIAS No. 9700 (SOLAS).

Article 21(2) imposes an additionallimitation, that such laws and regula-tions shall not apply to the design,construction, manning, or equipmentof␣foreign ships unless they are givingeffect to generally accepted interna-tional rules or standards establishedby␣the International Maritime Organi-zation (IMO). This rule does not affectthe right of the coastal State to estab-lish and enforce its own requirementsfor port entry, or preclude cooperationbetween coastal States to enforce theirrespective port entry requirements.States may also agree to establishhigher standards for their ships or fortrade between them.

Article 24(2) requires the coastalState to give appropriate publicity toany dangers to navigation of which ithas knowledge within its territorialsea.

Article 26 provides that no charge(such as a transit fee) may be leviedupon foreign ships by reason only oftheir passage through the territorialsea. The only charges which may belevied are for specific services renderedto the ship, and any such charges mustbe levied without discrimination.

Temporary Suspension of Inno-cent Passage. Article 25(3) providesthat:

the coastal State may, without discrimi-nation in form or in fact among foreignships, suspend temporarily in specifiedareas of its territorial sea the innocentpassage of foreign ships if such suspen-sion is essential for the protection of itssecurity, including weapons exercises.Such suspension shall take effect onlyafter having been duly published.

The prohibition against discrimina-tion “in form or in fact” is designed toprotect against acts which overtlydiscriminate in a manner that is prohib-ited by the article (discrimination “inform”) and also against acts that, al-though not overtly discriminatory,have a discriminatory effect (discrimi-nation “in fact”). “Weapons exercises”includes weapons testing.

Rules Applicable to MerchantShips and Government Ships Oper-ated for Commercial Purposes(Articles 27 and 28). Article 27, con-cerning criminal jurisdiction on board aforeign ship, and article 28, concerningcivil jurisdiction in relation to foreignships, are taken almost verbatim fromarticles 19 and 20 of the Territorial SeaConvention, respectively, but havebeen expanded to include the regime ofthe EEZ and the rules of Part XII onthe protection and preservation of themarine environment introduced by theConvention.

Rules Applicable to Warshipsand Other Government Ships Oper-ated for Non-commercial Purposes(Articles 29 to 32). Warships are de-fined in article 29 for the purposes ofthe Convention as a whole, includingarticles 95, 107, 110, 111 and 236. TheConvention expands upon earlier defi-nitions, no longer requiring that such aship belong to the “naval” forces of anation, under the command of an officerwhose name appears in the “Navy list”and manned by a crew who are underregular “naval” discipline. Article 29instead refers to “armed forces” to ac-commodate the integration of differentbranches of the armed forces in variouscountries, the operation of seagoingcraft by some armies and air forces,and the existence of a coast guard as aseparate unit of the armed forces ofsome nations, such as the UnitedStates.

Under article 30, the sole recourseavailable to a coastal State in the eventof noncompliance by a foreign warshipwith that State’s laws and regulationsregarding innocent passage is torequire the warship to leave the terri-torial sea immediately.

Article 31 provides that the flagState bears international responsibilityfor any loss or damage caused by itswarships or other government shipsoperated for non-commercial purposesto a coastal State as a result of noncom-pliance with applicable law. Thisprovision is consistent with the modernrules of State responsibility in cases ofState immunity.

Article 32 provides, in effect, thatthe only rules in the Convention dero-gating from the immunities of warshipsand government ships operated fornon-commercial purposes are thosefound in articles 17-26, 30 and 31.

Straits Used for InternationalNavigation (Part III, Articles34-39, 41-45)

The navigational provisions of the Con-vention concerning international straitsare fundamental to U.S. national secu-rity interests. Merchant ships andcargoes, civil aircraft, naval ships andtask forces, military aircraft, and sub-marines must be able to transitinternational straits freely in their nor-mal mode as a matter of right, and notat the sufferance of the States border-ing straits. The United States hasconsistently made clear throughout itshistory that it is not prepared to securethese rights through bilateral arrange-ments. The continuing U.S. position isthat these rights must form an explicitpart of the law of the sea. Part III ofthe Convention guarantees theserights.

With the expansion of the maxi-mum permissible breadth of theterritorial sea from 3 to 12 miles, it wasnecessary to develop stronger guaran-tees for navigation and overflight on,over, and under international straits.Such rules were critical to maintain theessential balance of interests betweenStates bordering straits and other con-cerned States.

Part III applies to all straits usedfor international navigation, regardlessof width, including their approaches,unless there is a high seas/EEZ routethrough the strait of similar conve-nience with respect to navigational andhydrographic characteristics. Part IIIapplies three legal regimes to differentkinds of straits used for internationalnavigation.

Transit passage applies to straitsconnecting one part of the high seas/EEZ and another part of the high seas/EEZ (article 37), except as notedbelow. The great majority of strategi-cally important straits, e.g., Gibraltar,Bonifacio, Bab el Mandeb, Hormuz,


Law of the Sea

States of their territorial seas to 12miles, over 100 straits, which previ-ously had high seas corridors, becameoverlapped by such territorial seas.Without provision for transit passage,navigation and overflight rights inthose straits would have been compro-mised.

Read together, articles 38(2) and39(1)(c) define transit passage as theexercise of the freedom of navigationand overflight solely for the purpose ofcontinuous and expeditious transit inthe normal modes of operation utilizedby ships and aircraft for such passage.For example, submarines may transitsubmerged and military aircraft mayoverfly in combat formation and withnormal equipment operation; surfacewarships may transit in a manner nec-essary for their security, includingformation steaming and the launchingand recovery of aircraft, where consis-tent with sound navigational practices.Article 38(3) provides that any activitywhich is not an exercise of the right oftransit passage remains subject to theother applicable provisions of the Con-vention.

Under article 44, a State borderingan international strait may not suspendtransit passage through internationalstraits for any purpose, including mili-tary exercises. Further, article 42(2)requires that the laws and regulationsof the State bordering a strait relatingto transit passage not be applied so asto have the practical effect of denying,hampering or impairing the right oftransit passage.

Innocent Passage in InternationalStraits. Under article 45(1)(b), the re-gime of innocent passage, rather thantransit passage, applies in straits usedfor international navigation that con-nect a part of the high seas or an EEZwith the territorial sea of a coastalState. There may be no suspension ofinnocent passage through such straits,and there is no right of overflight insuch straits. These so-called “dead-end” straits include Head HarbourPassage leading through Canadian ter-ritorial sea to the United States’Passamaquoddy Bay.

Under articles 38(1) and 45(1)(a),the regime of non-suspendable innocentpassage also applies in those straitsformed by an island of a State border-ing the strait and its mainland, where

there exists seaward of the island aroute through the high seas or EEZ ofsimilar convenience with regard tonavigational and hydrographical char-acteristics.

International Straits Not Com-pletely Overlapped by TerritorialSeas. The effect of article 36 is thatships and aircraft transiting through orabove straits used for internationalnavigation which are not completelyoverlapped by territorial seas andthrough which there is a high seas orEEZ corridor suitable for such naviga-tion enjoy the high seas freedom ofnavigation and overflight while operat-ing in and over such a corridor.

Moreover, if the high seas route isnot of similar convenience with respectto navigational or hydrographical char-acteristics, the regime of transitpassage applies within such straits.Thus, for example, a submarine maytransit submerged through the territo-rial sea in a strait not completelyoverlapped by territorial seas wherethe territorial sea route is the only onedeep enough for submerged transit.

“Straits Used for InternationalNavigation.” Under the Convention,the criteria in identifying an interna-tional strait is not the name, the size orlength, the presence or absence of is-lands or multiple routes, the history orvolume of traffic flowing through thestrait, or its relative importance to in-ternational navigation. Rather, thedecisive criterion is its geography: Thefact that it is capable of being used forinternational navigation to or from thehigh seas or the EEZ.

The geographical definition contem-plates a natural strait and not anartificially constructed canal. Thus, thetransit passage regime does not applyto the Panama and Suez Canals.

Legal Status of Waters FormingInternational Straits. The regime ofpassage through international straitsdoes not affect the legal status of thesewaters or the sovereignty or jurisdic-tion of the States bordering straits(article 34(1)). Article 34(2) requiresStates bordering straits to exercisetheir sovereignty and jurisdiction in ac-cordance with Part III and other rulesof international law. States borderingstraits must not impede the right oftransit passage.

Malacca, Singapore, Sunda, Lombok,and the Northeast, Northwest, andWindward Passages fall into this cat-egory. However, it is use for inter-national navigation, not importance,that is the basic legal criterion, asdescribed below.

Archipelagic sea lanes passage re-places transit passage as the relevantregime that applies to straits withinarchipelagic waters and the adjacentterritorial sea, where archipelagicwaters affecting such straits are estab-lished in accordance with Part IV of theConvention. This would be the situa-tion, for example, in the Sunda andLombok straits were Indonesia to des-ignate archipelagic sea lanes. Transitpassage applies to routes throughislands groups to which the provisionsregarding archipelagic waters do notapply.

Non-suspendable innocent passageapplies to straits connecting a part ofthe high seas/EEZ and the territorialsea of a foreign State (article 45(1)(b)),and to straits connecting one part ofthe high seas/EEZ and another part ofthe high seas/EEZ where the strait isformed by an island of a State border-ing the strait and its mainland, if thereexists seaward of the island a routethrough the high seas/EEZ of similarconvenience with regard to navigationand hydrographic characteristics(article 38(1)).

In addition, the Convention doesnot alter the legal regime in straitsregulated by long-standing interna-tional conventions in force specificallyrelating to such straits. This provisionrefers to the Turkish Straits (theBosporus and Dardanelles, connectingthe Black Sea and the Aegean Sea viathe Sea of Marmara) and the Strait ofMagellan.

Transit Passage. Part III of theConvention protects long-standingnavigation and overflight rights in in-ternational straits through the conceptof transit passage. This is the regimegoverning the right of free navigationand overflight for ships and aircraft intransit in, over, and under straits usedfor international navigation. Recogni-tion of such a right was a fundamentalrequirement for a successful Conven-tion. With the extension by coastal


Law of the Sea

Rights and Duties of States Bor-dering Straits. Articles 41-44 addressthe rights and duties of States border-ing straits relating to a number oftopics, including navigational safetyand the prevention, reduction, and con-trol of pollution from ships engaged intransit passage.

Pursuant to article 41, States bor-dering straits may designate sealanes␣and prescribe traffic separationschemes to promote navigationalsafety. However, such sea lanes andseparation schemes must conformto␣generally accepted internationalstandards and be approved by the com-petent international organization (i.e.,the IMO) before the sea lanes and traf-fic separation schemes may be put intoeffect. Ships in transit must respectproperly designated sea lanes and traf-fic separation schemes. Such trafficseparation schemes now exist in strate-gic straits such as Hormuz, Gibraltarand Malacca.

Article 42 specifically authorizesStates bordering straits to adopt non-discriminatory laws and regulationsrelating to transit passage throughstraits in respect of the safety of navi-gation and regulation of maritimetraffic as provided in article 41; the pre-vention, reduction and control ofpollution by giving effect to applicableinternational regulations regarding thedischarge of oil, oily wastes and othernoxious substances in the strait (i.e.,the Protocol of 1978 relating to theInternational Convention for the Pre-vention of Pollution from Ships, 1973,with annexes (95th Cong., 1st Sess.,Sen. Ex. E, 96th Cong., 1st Sess., Sen.Ex. C (MARPOL) and any applicableregional agreement); the prevention offishing, including the stowage of fishinggear by fishing vessels; and the loadingor unloading of any commodity, cur-rency or person in contravention of thecustoms, fiscal, immigration or sanitarylaws and regulations of States border-ing straits. Due publicity must begiven to these laws and regulations,and foreign ships exercising the rightof transit passage are required byarticle 42(4) to comply with them (sub-ject to the provisions of the Conventionregarding ships entitled to sovereignimmunity).

Article 43 encourages users andStates bordering straits to cooperateby agreement in the establishment andmaintenance of necessary navigationalor safety aids in the strait, and in otherimprovements in aid of internationalnavigation, and for the prevention, re-duction and control of pollution fromships. The IMO has been active in pro-moting such cooperation.

Duties of Ships and Aircraft Dur-ing Transit Passage (Article 39).Article 39(1) defines the common dutiesboth ships and aircraft have while exer-cising the right of transit passage.They include the duty to proceed with-out delay through or over the strait, torefrain from the threat or use of forceagainst States bordering straits, torefrain from any activities other thanthose incident to their normal modesof␣continuous and expeditious transit(unless rendered necessary by forcemajeure or by distress), and to complywith other relevant provisions of PartIII.

In addition, ships in transit passageare required by article 39(2) to com-ply with the International Regula-tions for␣Preventing Collisions at Sea,1972, 28 UST 3459, TIAS No. 8587(COLREGS), and other generally ac-cepted international regulations,procedures and practices for safety atsea and for the prevention, reductionand control of pollution from ships (i.e.,those adopted by the IMO).

Aircraft in transit passage are re-quired to observe the ICAO Rules ofthe Air (Annex 2 to the InternationalConvention on Civil Aviation (61 Stat.1180, TIAS No. 1591, 15 UNTS 295(Chicago Convention)), as they apply tocivil aircraft. Article 39(3)(a) statesthat State aircraft will normally complywith such safety measures and operateat all times with due regard for thesafety of navigation, as required byarticle 3(d) of the Chicago Convention.Aircraft in transit passage are alsorequired to maintain a continuous lis-tening watch on the appropriatefrequency.

Archipelagic States(Part IV, Articles 46-54)

Part IV represents a successful resolu-tion, following years of controversy, ofthe effort, led by Indonesia and thePhilippines, to achieve a special regimefor archipelagic States. The UnitedStates and other maritime States werewilling to recognize the concept of ar-chipelagic States only if its applicationwere limited and precisely defined anddid not impede rights of navigation andoverflight. In effect, the concept of ar-chipelagic States creates a geographicsituation requiring the same kind of so-lution as transit passage of straits, i.e.,the right of navigation and overflighton, over, and under the waters en-closed. Acceptance of this principleguarantees critical U.S. military andcommercial navigation rights.

Article 46 describes an archipelagicState as one “constituted wholly by oneor more archipelagos” and may includeother islands. It defines an “archi-pelago” as a:

group of islands, including parts of is-lands, inter-connecting waters andother natural features which are soclosely interrelated that such islands,waters and other natural features forman intrinsic geographical, economic andpolitical entity, or which historicallyhave been regarded as such.

Thus, the special regime of Part IVonly applies to island States; a conti-nental State may not claim archipelagicwaters.

Archipelagic Baselines. A Statemay enclose archipelagic waters withinarchipelagic baselines that satisfy thecriteria specified in article 47. Depend-ing on how the archipelagic baselinesystem is established, the following20␣States could legitimately claim ar-chipelagic waters: Antigua & Barbuda,The Bahamas, Cape Verde, Comoros,Fiji, Grenada, Indonesia, Jamaica,Kiribati (in part), Maldives, MarshallIslands (in part), Papua New Guinea,Philippines, Saint Vincent and theGrenadines, Sao Tome & Principe,Seychelles, Solomon Islands (five archi-pelagos), Tonga, Trinidad & Tobago,and Vanuatu.


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The legal status of archipelagic wa-ters, of the air space over archipelagicwaters, and of their bed and subsoilis␣described in article 49. Article 51addresses existing agreements, tradi-tional fishing rights, and existingsubmarine cables. Archipelagic Statesmeasure the breadth of their variousmaritime zones from the archipelagicbaselines. They may also draw closinglines delimiting internal waters of indi-vidual islands following the rules setout in articles 9-11.

Navigation and Overflight in Ar-chipelagos. The right to navigate on,under, and over archipelagic waters byall kinds of ships and aircraft was acritical goal of the United States duringthe negotiations leading to the Conven-tion. As with respect to the right oftransit passage through internationalstraits, the result of the negotiationfully protects this right.

Archipelagic sea lanes passage isvery similar to the concept of transitpassage. Article 53(3) defines archipe-lagic sea lanes passage as the exerciseof the rights of navigation and over-flight in the normal mode solely for thepurpose of “continuous, expeditious andunobstructed transit” through archipe-lagic waters. For example, submarinesmay transit submerged and militaryaircraft may overfly in combat forma-tion and with normal equipmentoperation; surface warships may transitin a manner necessary for their secu-rity, including formation steaming andthe launching and recovery of aircraft,where consistent with sound naviga-tional practices. The provisionsregarding the width of archipelagicsea␣lanes were specifically designedto␣accommodate defensive formationsand navigation practices normally usedin open waters. Article 54, referringback to article 44, provides that theright of archipelagic sea lanes passagecannot be impeded or suspended bythe␣archipelagic State for any reason.

All ships and aircraft, includingwarships and military aircraft, enjoythe right of archipelagic sea lanes pas-sage while transiting through, under,or over the waters of archipelagos andadjacent territorial seas via archipe-lagic sea lanes. Articles 53(4) and53(12) mean that archipelagic sea lanes

passage must be respected in all routesnormally used for international naviga-tion and overflight, whether or not sealanes are actually designated under theConvention.

Article 53 permits an archipelagicState to designate sea lanes and airroutes for the exercise of archipelagicsea lanes passage. Such archipelagicsea lanes “shall include all normal pas-sage routes . . . and all normalnavigational channels . . . .” Each sealane is defined by a continuous linefrom the point of entry into the archi-pelago to the point of exit. Ships andaircraft in designated archipelagic sealanes passage are required to remainwithin 25 miles from either side of theaxis line and must approach no closer tothe coastline than 10 percent of the dis-tance between the nearest islands.

Archipelagic sea lanes must con-form to generally accepted inter-national regulations, and must be re-ferred to the “competent internationalorganization,” the IMO, with a view totheir adoption, before implementation.Only after adoption by the IMO maythe archipelagic State implement archi-pelagic sea lanes. No archipelagicState has yet submitted any proposalto the IMO.

The elements of the transit passageregime for international straits apply toarchipelagic sea lanes passage. Article54 applies, mutatis mutandis, the pro-visions of articles 39 (duties of shipsand aircraft during their passage), 40(research and survey activities), and 42and 44 (laws, regulations, and duties ofStates bordering straits relating to pas-sage).

Article 52 provides that innocentpassage applies in archipelagic watersother than designated archipelagic sealanes or the routes through whicharchipelagic sea lanes passage is guar-anteed. All the normal rules of inno-cent passage apply, and there is noright of overflight or submerged pas-sage. In island groups where a Stateeither may not claim archipelagic wa-ters under the Convention, or has notdone so, the other rules of the Conven-tion apply, including the rulesregarding transit passage of straits.

The Contiguous Zone (Article 33)

In the contiguous zone, vessels andaircraft enjoy the same high seas free-doms of navigation and overflight as inthe EEZ.

The Exclusive Economic Zone(Part V, Articles 55-60, 73)

From the perspective of the UnitedStates, Part V (articles 55-75) providesa regime for the EEZ that achieves aproper, long-term balance betweencoastal interests and maritime inter-ests. These provisions enable thecoastal State to explore, exploit, con-serve and manage resources out to200␣miles from coastal baselines, whileallowing other States to navigate, over-fly and conduct related activities in theEEZ.

The United States is far and awaythe world’s primary beneficiary in eachrespect. From a coastal perspective,the United States has an EEZ which isamong the largest and richest of any inthe world, with extensive living andnon-living resources. From a maritimeperspective, U.S. military and commer-cial ships and aircraft, as well as U.S.trade and communications, are guaran-teed in the EEZs of other Statesessential navigational and related free-doms, from military exercises to layingcables and pipelines.

Article 56 defines the rights, juris-diction, and duties of the coastal Statein the EEZ. Paragraph 1 of this articledistinguishes sovereign rights and ju-risdiction, as follows:

1. In the exclusive economic zone,the coastal State has:

(a) sovereign rights for the purposeof exploring and exploiting, conservingand managing the natural resources,whether living or non-living, of thewaters superjacent to the sea-bed andof the sea-bed and its subsoil, and withregard to other activities for the eco-nomic exploitation and exploration ofthe zone, such as the production of en-ergy from the water, currents andwinds;

(b) jurisdiction as provided for inthe relevant provisions of the Conven-tion with regard to:


Law of the Sea

requires ships to respect the zone andgenerally accepted international navi-gational standards.

Article 60(7) provides that artificialislands, installations and structures,and the safety zones around them, maynot be located where they may causeinterference with the use of recognizedsea lanes essential to internationalnavigation.

Of the remaining 15 articles on theEEZ (articles 61-75), 13 specifically re-late to living resources jurisdiction inthe zone, and are discussed below inthe section on living marine resources;the other two are discussed below inthe section on maritime boundary de-limitation.

Consistent with article 73, thecoastal State may, in the exercise of itssovereign rights over living resourcesin the EEZ, take such measures, in-cluding boarding, inspection, arrest,and judicial proceedings against foreignvessels as are necessary to ensure com-pliance with its rules and regulationsadopted in conformity with the Con-vention. Arrested vessels and theircrews are to be promptly released uponthe posting of reasonable bond or othersecurity. In cases of arrest or deten-tion of foreign vessels, the coastal Stateis required to notify the flag Statepromptly, through appropriate chan-nels, of the action taken and of anypenalties imposed.

While no State has claimed anEEZ␣extending beyond 200 miles fromcoastal baselines, several of the Stateswhich have declared EEZs claim rightsto regulate activities within the EEZwell beyond those authorized in theConvention. For example, Iran claimsthe right to prohibit all foreign militaryactivities within its EEZ. The UnitedStates does not recognize such claims,which are not within the competence ofcoastal States under the Convention.Accession to the Convention will sig-nificantly enhance the ability of theUnited States to deal with such exces-sive claims, and to prevent theirproliferation, on the basis of the bal-ance of interests reflected in theConvention.

(i) the establishment and use ofartificial islands, installations andstructures (i.e., article 60);

(ii) marine scientific research(i.e., Part XIII);

(iii) the protection and preserva-tion of the marine environment (i.e.,Part XII, particularly article 220);

(c) other rights and duties pro-vided for in the Convention.

Article 56 enumerates the rights ofthe coastal State in the EEZ. Article56(1)(a) establishes the sovereignrights of the coastal State. Article56(1)(b) sets forth the nature and scopeof coastal State jurisdiction with re-spect to specific matters. The terms“sovereign rights” and “jurisdiction”are used to denote functional rightsover these matters and do not implysovereignty. A claim of sovereignty inthe EEZ would be contradicted by thelanguage of articles 55 and 56 and pre-cluded by article 58 and the provisionsit incorporates by reference.

Pursuant to Article 58, in the EEZall States enjoy the high seas freedomsof navigation and overflight, laying ofsubmarine cables and pipelines, andother internationally lawful uses of theseas related to those freedoms, such asthose associated with the operation ofships, aircraft and submarine cablesand pipelines, and which are compatiblewith the other provisions of the Con-vention. Articles 88 to 115, which(apart from the fuller enumeration offreedoms in article 87) set forth the en-tire regime of the high seas on mattersother than fisheries, apply to the EEZin so far as they are not incompatiblewith Part V. These rights are the sameas the rights recognized by interna-tional law for all States on the highseas.

Military activities, such as anchor-ing, launching and landing of aircraft,operating military devices, intelligencecollection, exercises, operations andconducting military surveys are recog-nized historic high seas uses that arepreserved by article 58. Under thatarticle, all States have the right to con-duct military activities within the EEZ,but may only do so consistently withthe obligation to have due regard to

coastal State resource and other rights,as well as the rights of other States asset forth in the Convention. It is theduty of the flag State, not the right ofthe coastal State, to enforce this “dueregard” obligation.

The concept of “due regard” in theConvention balances the obligations ofboth the coastal State and other Stateswithin the EEZ. Article 56(2) providesthat coastal States “shall have due re-gard to the rights and duties of otherStates” in the EEZ. Article 58(3)places similar requirements on otherStates in exercising their rights, and inperforming their duties, in the EEZ.Although it is not specific, article 59provides a basis for resolving disputesover any rights and duties not allocatedby articles 56, 58 and other provisionsof the Convention. The conflict “shouldbe resolved on the basis of equity andin the light of all the relevant circum-stances, taking into account therespective importance of the interestsinvolved to the parties as well as to theinternational community as a whole.”

Article 60 sets out the provisionspermitting the coastal State to con-struct and to authorize and regulatethe construction, operation, and useof␣artificial islands, installationsand␣structures used for the purposesprovided for in article 56(1) and othereconomic purposes, and other installa-tions and structures that may inter-fere with the exercise of the coastalState’s rights in its EEZ. This provi-sion does not preclude the deploymentof listening or other security-relateddevices. Article 60(3) requires thecoastal State to give “due notice” ofartificial islands, installations andstructures and to remove those nolonger in use in accordance with gener-ally accepted international standardsestablished by the IMO (e.g., IMOAssembly Resolution A.672(16)).Article 60(4)-(6) permits the coastalState to establish and give␣notice ofreasonable safety zones␣around suchstructures not to exceed 500 meters inbreadth except in accordance with gen-erally accepted international standardsor as recommended by the IMO, and


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High Seas(Part VII, Articles 86-115)

Freedom to navigate and operate on,over, and under the high seas is a cen-tral requirement of the United States.The high seas provisions of the Con-vention reproduce the provisions of the1958 Convention on the High Seas, 13UST 2312, TIAS No. 5200 (High SeasConvention), with some very usefulclarifications and updating that, forexample, protect scientific researchand␣facilitate enforcement againstdrug␣smuggling and unauthorizedbroadcasting. The relatively sparseanti-pollution provisions of the HighSeas Convention have been replacedby␣the strong and elaborate environ-mental provisions discussed in thenext␣ section of this Commentary.

Pursuant to article 87, all shipsand␣aircraft, including warships andmilitary aircraft, enjoy freedom ofmovement and operation on and overthe high seas. For warships and mili-tary aircraft, this includes task forcemaneuvering, flight operations, mili-tary exercises, surveillance, intelli-gence gathering activities, and ord-nance testing and firing.

All of these activities must be con-ducted with due regard for the rights ofother States and the safe conduct andoperation of other ships and aircraft.The exercise of any of these freedomsis subject to the conditions that theybe␣taken with “reasonable” regard,according to the High Seas Convention,or “due” regard, according to the LOSConvention, for the interests of othernations in light of all relevant circum-stances. There is no substantivedifference between the two terms. The“reasonable regard/due regard” stan-dard requires any using State to becognizant of the interests of others inusing a high seas area, to balance thoseinterests with its own, and to refrainfrom activities that unreasonably inter-fere with the exercise of other States’high seas freedoms in light of that bal-ancing of interests. Articles 87, 89, and90 prohibit any State’s attempt to im-pose its sovereignty on the high seas;they are open to use by all States,whether coastal or land-locked.

Security Zones. Some coastalStates have claimed the right to estab-lish military security zones, beyond theterritorial sea, in which they purport toregulate the activities of warships andmilitary aircraft of other nations bysuch restrictions as prior notification orauthorization for entry, limits on thenumber of foreign ships or aircraftpresent at any given time, prohibitionson various operational activities, orcomplete exclusion. There is no basisin the Convention, or other sources ofinternational law, for coastal States toestablish security zones in peacetimethat would restrict the exercise of non-resource-related high seas freedomsbeyond the territorial sea. Accord-ingly, the United States does notrecognize the peacetime validity of anyclaimed security or military zone sea-ward of the territorial sea whichpurports to restrict or regulate thehigh seas freedoms of navigation andoverflight, as well as other lawful usesof the sea.

Peaceful purposes (article 88) isdiscussed below in connection with ar-ticle 301, on peaceful uses of the seas, inthe section on general provisions.

Nationality, Status, and Duties ofShips (Articles 91-96). Articles 91-92pertain to the nationality and status ofships. Article 91 requires, inter alia,that, for a State to grant its nationalityto a ship, there must be a genuine linkbetween the flag State and the ship.Article 92 provides that ships shall sailunder the flag of one State only, save incertain exceptional cases, and be sub-ject only to that State’s jurisdictionwhile on the high seas. A ship thatsails under two or more flags, usingthem according to convenience, maynot claim any of the nationalities inquestion and may be treated as a state-less vessel.

Article 93 deals explicitly withships flying the flag of the United Na-tions and its specialized agencies or theInternational Atomic Energy Agency.Article 94 sets out new, stricter dutiesof flag States with respect to their ves-sels, including such duties regardingthe safety of navigation, that have beenelaborated primarily under the aus-pices of the IMO.

While the general rule of exclusiveflag State jurisdiction over vessels onthe high seas has long standing in inter-national law, the United States andother members of the internationalcommunity have developed proceduresfor resolving problems that have arisenin certain contexts, including drugsmuggling, illegal immigration and fish-ing, when States are unable orunwilling to exercise responsibilityover vessels flying their flag. Theseprocedures, several of which are con-tained in international agreements,typically seek to ensure that the flagState gives expeditious permission toother States for the purpose of board-ing, inspection and, where appropriate,taking law enforcement action with re-spect to its vessels.

Sovereign Immunity (Articles29-32, 95-96, 236). The Conventionprotects and strengthens the keyprinciple of sovereign immunity forwarships and military aircraft. Al-though not a new concept, sovereignimmunity is a principle of vital impor-tance to the United States. The Con-vention provides for a universally rec-ognized formulation of this principle.

As discussed above, with respect tothe territorial sea regime, articles 29through 32 set forth the sovereign im-munity rules applicable to warships andother government ships operated fornon-commercial purposes.

Article 32 provides that, with suchexceptions as are contained in subsec-tion A and in articles 30 and 31(discussed above), nothing in the Con-vention affects the immunities ofwarships and other government shipsoperated for non-commercial purposes.

Regarding the definition of “war-ship,” article 29 expands the traditionaldefinition to include all ships belongingto the armed forces of a State bearingthe external markings distinguishingthe character and nationality of suchships, under the command of an officerduly commissioned by the governmentof that State and whose name appearsin the appropriate service list of offic-ers, and manned by a crew which isunder regular armed forces discipline.A ship need not be armed to beregarded as a warship.


Law of the Sea

Concerning government ships oper-ated for non-commercial purposes,these would include auxiliaries, whichare vessels, other than warships, thatare owned or operated by the armedforces. Like warships, they are im-mune from arrest and search, whetherin port or at sea, and exempt from for-eign taxes and enforcement of foreignlaws and regulations; further, the flagState exercises exclusive control overall passengers and crew onboard.

Articles 95-96 address these issueswith respect to the high seas regime.Article 95 provides that warships onthe high seas have complete immunityfrom the jurisdiction of any State otherthan the flag State. Article 96 providesthat ships owned or operated by aState and used only on governmentnon-commercial service shall, on thehigh seas, have complete immunityfrom the jurisdiction of any State otherthan the flag State.

Finally, article 236 makes clearthat␣the provisions of Part XII do notapply to any warship, naval auxiliary,other vessels or aircraft owned or oper-ated by a State and used, for the timebeing, only on government non-com-mercial service. However, each Statemust ensure, by the adoption of appro-priate measures not impairing opera-tions or operational capabilities of suchvessels or aircraft owned or operatedby it, that such vessels or aircraft actin␣a manner consistent, so far as isreasonable and practicable, with theConvention.

Penal Jurisdiction in Matters ofCollision or Any Other Incident ofNavigation (Article 97). Article 97 re-states existing international lawrelating to this subject.

Assistance to Persons, Ships,and Aircraft in Distress (Article 98).The law has long realized the impor-tance of rendering assistance topersons in distress at sea. Article 98replicates verbatim article 12 of theHigh Seas Convention. The duty torescue also appears in the InternationalConvention for the Unification of Cer-tain Rules Relating to Salvage ofVessels at Sea, September 23, 1910,37␣Stat. 1658, TIAS No. 576, and theInternational Convention on Salvage,1989, article 10, Sen. Treaty Doc. 102-12. Article 98 is implemented by46␣U.S.C. §§ 2303 & 2304.

Duty of Masters. In addition, theUnited States is a Party to the SOLASConvention, which requires the masterof every merchant ship and privatevessel not only to speed to the assis-tance of persons in distress, but tobroadcast warning messages with re-spect to dangerous conditions orhazards encountered at sea (Chapter V,Regulations 10 and 2).

Prohibition of the TransportOf Slaves (Article 99). Article 99 isidentical to article 13 of the High SeasConvention and relates to the Conven-tion to Suppress the Slave Trade andSlavery of September 25, 1926, 46 Stat.2183, TS No. 778, 2 Bevans 607, 60LNTS 253; the Protocol of December 7,1953 Amending the Slavery Conven-tion of September 25, 1926, 7 UST 479,TIAS No. 3532, 182 UNTS 51; andthe␣Supplementary Convention onthe␣Abolition of Slavery, the SlaveTrade and Institutions and PracticesSimilar to Slavery of September 5,1956, 18␣UST 3201, TIAS No. 6418,266␣UNTS 3. This obligation is imple-mented in 18 U.S.C. §§ 1581-88 (1982),and gives effect to the policy enunci-ated by the Thirteenth Amendment tothe Constitution of the United States.

The Slavery Convention, AmendingProtocol, and Supplementary Conven-tion do not authorize nonconsensualhigh seas boarding by foreign flag ves-sels. Nevertheless, article 22(1) of theHigh Seas Convention authorizednonconsensual boarding by a warshipwhere there exists reasonable groundfor suspecting that a vessel is engagedin the slave trade. Article 110(1)(b) ofthe LOS Convention reaffirms this ap-proach.

Piracy (Articles 100-107). De-spised by all nations since earliestrecorded history, piracy continues to bea major problem in certain parts of theworld. Articles 100-107 reaffirm therights and obligations of all States tosuppress piracy on the high seas.

The U.S. Constitution (article I,section 8) provides that:

The Congress shall have Power . . . todefine and punish piracies and feloniescommitted on the high seas, and of-fences against the Law of Nations.

Congress has exercised this powerby enacting 18 U.S.C. § 1651, whichprovides that:

Whoever, on the high seas, commits thecrime of piracy as defined by the law ofnations, and is afterwards brought intoor found in the United States, shall beimprisoned for life.

Congress has further exercised thispower, including with respect to cer-tain acts not regarded as piracy underinternational law, by enacting 18 U.S.C.§§ 1651-61 (piracy), 49 U.S.C. §§1472(i)-(n) (aircraft piracy), 33 U.S.C.§§ 381-84 (regulations for suppressionpiracy), and 18 U.S.C. §§ 1654(privateering). These statutes providea firm basis for implementing the rel-evant provisions of the Convention andother applicable international law.

Suppression of InternationalNarcotics Traffic (Article 108). Ar-ticle 108 of the Convention provides avaluable additional tool in support ofthe war on illicit drugs. This articlerequires all States to cooperate in thesuppression of illicit traffic in narcoticdrugs and psychotropic substancesengaged in by ships on the high seascontrary to international conventions.This article also permits any Statewhich has reasonable grounds forbelieving that a ship flying its flag isengaged in illicit traffic to request thecooperation of other States to suppresssuch traffic.

This principle finds expression inother international law, including in theSingle Convention on Narcotic Drugs,1961, 18 UST 1407, TIAS No. 6298,520␣UNTS 204. Article 17 of the1988␣United Nations Conventionagainst Illicit Traffic in NarcoticDrugs␣and Psychotropic Substances,Sen. Treaty Doc. 101-4, also mandates aconsensual regime for the boarding offoreign flag vessels suspected of drugtrafficking at sea. The United Stateshas entered into a number of bilateralmaritime counter-narcotics agree-ments, for example with the UnitedKingdom (33 UST 4224, TIAS No.10296, 1285 UNTS 197), Belize (TIASNo. 11914), Panama (TIAS No. 11833)and Venezuela (TIAS No. 11827).

Implementing legislation in thisfield includes 49 U.S.C. §§ 781-789,14␣U.S.C. § 89, 22 U.S.C. §2291, and46␣U.S.C. App. § 1903 et seq.


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Suppression of UnauthorizedBroadcasting (Article 109). Article109 is designed to aid in the suppres-sion of “pirate broadcasting” andsupports the Regulations annexed tothe 1973 International Telecommunica-tion Convention, 28 UST 2495, TIASNo. 8572; the 1982 International Tele-communication Convention, 99th Cong.,1st Sess. Treaty Doc. 99-6; and the1979␣Radio Regulations, 97th Cong.,1st␣Sess. Treaty Doc. 97-21. Unautho-rized broadcasting from internationalwaters is made a crime in the UnitedStates by 47 U.S.C. § 502 (1982).

Warship’s Right of ApproachAnd Visit (Article 110). Article 110 ofthe Convention reaffirms the right ofwarships, military aircraft or otherduly authorized ships or aircraft toapproach and visit other vessels toensure that they are not engaged invarious illegal activities. This is a rightof great importance to the UnitedStates. Article 110 permits the rightof␣visit to be exercised if there are rea-sonable grounds for suspecting that aforeign flag vessel is engaged in piracy,the slave trade, or unauthorized broad-casting; is without nationality; or is,in␣reality, of the same nationality asthe␣warship. The maintenance andcontinued respect for these rights areessential to maritime counter-narcoticsand alien smuggling interdiction opera-tions.

Hot Pursuit (Article 111). Article111 of the Convention provides adetailed elaboration of the concept of“hot pursuit,” based on article 23 of theHigh Seas Convention. However, theConvention expands this concept totake into account the development ofthe EEZ and archipelagic waters, andprovides further details with respect toaircraft engaged in hot pursuit. Thesemodifications increase U.S. ability topursue criminals, such as drug traffick-ers, as well as those who violate U.S.fisheries laws.

Cables and Pipelines(Articles 79, 87(1)(c), 112-115). Theprovisions on submarine cables andpipelines codify the right to lay andoperate them. These provisions repli-cate their counterparts in article 4 ofthe Convention on the ContinentalShelf, 15 UST 471, TIAS No. 5578, andarticles 26-29 of the High Seas Conven-

tion, which themselves reflect the pro-visions of the 1884 Convention on theProtection of Submarine Cables,24␣Stat. 989, TS No. 380, as amended25␣Stat. 1414, TS Nos. 380-1 and 380-2,380-3, 1 Bevans 89, 112, 114. The 1884Submarine Cables Convention is imple-mented in 47 U.S.C. § 21 et seq. (1982).

Submarine cables include telegraph,telephone, and high-voltage powercables, which are essential to moderncommunications. In light of the extra-ordinary costs and increasing impor-tance to the world economy of underseatelecommunications cables, particularlythe new fiber-optic cables, it is signifi-cant that the Convention strengthensthe protections for the owners andoperators of these cables in the eventof␣breakage.

Pipelines include those which de-liver water, oil and natural gas, andother commodities. The Conventionrecognizes that pipelines may pose anenvironmental threat to the coastalState and, therefore, it increases theauthority of the coastal State on itscontinental shelf over the location ofpipelines and with respect to pollutiontherefrom.

PROTECTION AND PRESER-VATION OF THE MARINEENVIRONMENT (PART XII,ARTICLES 192-237)

The Law of the Sea Convention is thestrongest comprehensive environmen-tal treaty now in existence or likely toemerge for quite some time. Part XIIestablishes, for the first time, a com-prehensive legal framework for theprotection and preservation of themarine environment. By addressing allsources of marine pollution, such as pol-lution from vessels, sea-bed activities,ocean dumping, and land-basedsources, Part XII promotes continuingimprovement in the health of theworld’s oceans. It effectively andexpressly balances economic and envi-ronmental interests in general, andthe␣interests of coastal states in pro-tecting their environment and naturalresources with the rights and freedomsof navigation in particular. Compliancewith Part XII’s environmental obliga-tions is subject to compulsory arbi-tration or adjudication.

Part XII thus creates a positive andunprecedented framework for marineenvironmental protection that willencourage all Parties to take their envi-ronmental obligations seriously andcome together to address issues of com-mon and pressing concern.

Definitions (Article 1)

Article 1 defines two terms used inPart XII: “pollution of the marine envi-ronment” and “dumping.” The term“marine environment” is understood toinclude living resources, marine ecosys-tems, and the quality of seawater.

General Obligations(Articles 192-196)

Section 1 sets forth general provisionsrelating to the protection and preserva-tion of the marine environment.Article 192 clearly establishes thelegal␣duty of all States to protect andpreserve the marine environment. Theremaining provisions require States,inter alia, to adopt pollution controlmeasures to ensure that activities un-der their control are conducted so asnot to cause environmental damage toother States or result in the spread ofpollution beyond their own offshorezones.

Global and Regional Cooperation(Articles 197-201)

Section 2 provides for global andregional cooperation for the protectionand preservation of the marine envi-ronment. Cooperation includes, interalia, development of rules, standards,and recommended practices andprocedures for the protection and pres-ervation of the marine environment(article 197), notification of imminent oractual damage to other States likely tobe affected (article 198), developmentof contingency plans to respond to pol-lution incidents (article 199), promotionof research and exchange of informa-tion (article 200), and establishment ofappropriate scientific criteria for rules,standards and recommended practicesand procedures for the prevention,reduction and control of pollution ofthe␣marine environment (article 201).(Article 242 adds provisions for inter-national cooperation in research forenvironmental purposes.)


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Technical Assistance(Articles 202-203)

Section 3 provides for the promotion ofprograms and appropriate scientificand technical assistance related to pro-tection and preservation of the marineenvironment, especially to developingStates.

Monitoring and EnvironmentalAssessment (Articles 204-206)

Section 4 establishes rules for monitor-ing and environmental assessment.Article 204 sets forth obligations relat-ing to monitoring the risks or effects ofpollution on the marine environment,including the effects of activities whichStates permit or in which they engage.

Article 206 relates to the environ-mental assessment of certain activitieson the marine environment. WhenStates have reasonable grounds forbelieving that planned activities undertheir jurisdiction or control may causesubstantial pollution of or significantand harmful changes to the marineenvironment, they shall, as far as prac-ticable, assess the potential effects ofsuch activities on the marine environ-ment and shall communicate reports ofthe results of such assessments in themanner provided in article 205. (Therequirements for assessment of poten-tial environmental impacts of deepsea-bed mining activity are discussedbelow in connection with the deep sea-bed mining provisions of the Con-vention and the 1994 Agreementgenerally.)

International Rules and NationalLegislation to Prevent, Reduce,and Control Pollution of the MarineEnvironment (Articles 207-212)

Section 5 obligates States to adopt lawsand regulations to prevent, reduce andcontrol pollution of the marine environ-ment from land-based sources, sea-bedactivities subject to national jurisdic-tion, deep sea-bed mining (activities inthe Area), ocean dumping, vessels, andthe atmosphere. As a general rule,these articles require States to adoptlaws and regulations that are no less ef-fective than international rules; to

endeavor to harmonize their policies atthe regional level; and to cooperate todevelop international rules.

Although States are not legallybound by an international agreement towhich they are not party, the require-ment that their national laws at leasthave the same effect as, or be no lesseffective than, internationally agreedminimum standards of environmentalprotection is an important step forwardin marine environmental protection.

Below is a discussion of the statusof the development of internationalstandards, national legislation, andother international activity relating tothe sources of pollution identified insection 5, noting where the UnitedStates has already implemented thesearticles.

Pollution From Land-basedSources (Article 207). The Conven-tion will be the first legally bindingglobal agreement governing marinepollution from land-based sources.Article 207 requires that national lawsfor the prevention of marine pollutionfrom land-based sources take into ac-count internationally agreed standards.The Montreal Guidelines for the Pro-tection of the Marine EnvironmentAgainst Pollution from Land-BasedSources, adopted by the GoverningCouncil of the United Nations Environ-ment Program (Decision 13/18/II of theGoverning Council of UNEP of May 24,1985), are internationally agreed guide-lines adopted with a view to assistinggovernments in developing interna-tional agreements and nationallegislation relating to land-basedsources of pollution.

Since land-based sources of pollu-tion continue to account for approx-imately 80 percent of all marine pollu-tion, global discussions are ongoing inan effort to address more fully thissource of pollution. In recognition ofthe importance of this problem andas␣an outgrowth of the 1992 UnitedNations Conference on Environmentand Development, the United Statesin␣late 1995 will host an internationalconference on land-based sources ofmarine pollution. This conference isexpected, inter alia, to result in a glo-bal action plan to address land-basedsources of marine pollution.

On a regional basis, the UnitedStates is party to two regional agree-ments that contain general provisionson land-based sources of marine pollu-tion: the Convention for the Protectionof the Natural Resources and Environ-ment of the South Pacific Region (theSPREP Convention), Sen. Treaty Doc.101-21, and the Convention for the Pro-tection and Development of the MarineEnvironment of the Wider CaribbeanRegion (the Cartagena Convention),TIAS No. 11085. Under the auspices ofthe Cartagena Convention and theUnited Nations Regional Seas Pro-gram, the United States and otherCaribbean States are presently consid-ering the need for, and elements of, apossible protocol to the Cartagena Con-vention on land-based sources ofmarine pollution. In addition, the Pro-tocol on Environmental Protection tothe Antarctic Treaty, Sen. Treaty Doc.102-22, to which the United States is asignatory, and the Arctic Environmen-tal Protection Strategy addressland-based sources of marine pollution.

The United States already hasnational legislation addressing land-based sources of marine pollution; thislegislation takes into account therecommendations of the MontrealGuidelines described above. U.S. lawsinclude the Clean Water Act, 33 U.S.C.§§ 1251-1387, which specifically ad-dresses marine water quality, andother statutes (such as the Solid WasteDisposal Act, 42 U.S.C. §§ 6901-6992,the Comprehensive Environmental Re-sponse, Compensation, and LiabilityAct, 42 U.S.C. § 9601-9675, and theFederal Insecticide, Fungicide, and Ro-denticide Act, 7 U.S.C. §§ 136-136y)which regulate the release of pollutantsand other materials into the environ-ment. See also the Refuse Act, 33U.S.C. § 407 et seq., and the CoastalZone Management Act of 1972, 16U.S.C. § 1451 et seq.

Pollution From Sea-bed ActivitiesSubject to National Jurisdiction (Ar-ticle 208). The Convention will be thefirst legally binding global agreementgoverning pollution from sea-bed ac-tivities. Article 208 requires thatcoastal State laws governing pollutionfrom sea-bed activities be no less effec-tive than international rules andstandards. Although there are many


Law of the Sea

potential sea-bed activities, includingthe mining of coral, placers, and sand,the most common sea-bed activity isthe exploration and exploitation of oiland gas. Internationally, the need forregulation of this industry is reviewedperiodically by the IMO. Regionally,article 8 of the SPREP Convention andarticle 8 of the Cartagena Conventionaddress pollution from sea-bed activi-ties.

The United States has domesticlegislation that addresses pollutionfrom sea-bed activities of persons sub-ject to U.S. jurisdiction, both in areassubject to U.S. jurisdiction and beyond.These include the Outer ContinentalShelf Lands Act, 33 U.S.C. §§ 1331-1356 and the Deep Seabed HardMinerals Resources Act (“DSHMRA”),30 U.S.C. §§ 1401 et seq.

Pollution From Deep Sea-bedMining (Activities in the Area) (Ar-ticle 209). International rules andnational legislation relating to pollutionfrom deep sea-bed mining have yet tobe developed. As discussed in the sec-tion of this Commentary on deepsea-bed mining, the environmental pro-tection provisions of the Conventionrelating to activities in the Area arequite strong and comprehensive. The1994 Agreement further strengthensthese provisions by requiring, interalia, that all applications for approvalof plans of work be accompanied by anassessment of the potential environ-mental impacts of the proposedactivities and that the InternationalSea-bed Authority adopt rules, regula-tions and procedures on marineenvironmental protection as part of itsearly functions prior to the approval ofthe first plan of work for exploitation(Annex, section 1(5)(g), (7)). TheDSHMRA addresses pollution fromsea-bed activities of persons subject toU.S. jurisdiction in areas beyond na-tional jurisdiction, including provisionfor an environmental impact statement,monitoring, NPDES permits, andemergency suspension of activities.

Pollution by Dumping (Article210). Article 210 requires that nationallaws regarding pollution from dumpingbe no less effective than the global

rules and standards. The global regimeaddressing pollution of the marineenvironment by dumping is long-estab-lished. The Convention on the Pre-vention of Marine Pollution by Dump-ing of Wastes and Other Matter (theLondon Convention), 26 UST 2403,TIAS No. 8165, 1046 UNTS 120, gov-erns the ocean dumping of all wastesand other matter.

Both the SPREP Convention (ar-ticle 10) and the Cartagena Convention(article 6) contain general provisionsaddressing ocean dumping on a re-gional basis. In addition, a Protocol tothe SPREP Convention contains provi-sions that parallel those of the LondonConvention as it existed in 1986.

Domestically, dumping is controlledby the Marine Protection, Research,and Sanctuaries Act (Ocean DumpingAct), 33 U.S.C. §§ 1401-1445.

Pollution From Vessels (Article211). The Convention’s provisions re-lating to pollution from vessels aredeveloped in considerable detail. Theyare a significant part of the overall bal-ance between coastal and maritimeinterests the Convention is designed tomaintain over time.

Paragraph 1 requires States to es-tablish international rules andstandards to prevent, reduce and con-trol vessel source pollution and theadoption of routeing systems to mini-mize the threat of accidents whichmight cause pollution of the marine en-vironment. Such rules and standardsare to be developed through the compe-tent international organization, whichis recognized to be the IMO. The IMOhas developed several conventions that,directly or indirectly, address vesselsource pollution. One of the most im-portant of these is the MARPOLConvention, which contains generalprovisions on pollution from vessels,supplemented by five Annexes pertain-ing to vessel discharges of oil (AnnexI), noxious liquid substances in bulk(Annex II), harmful substances carriedby sea in packaged forms, or in freightcontainers, portable tankers or roadand rail tank wagons (Annex III), sew-age (Annex IV), and garbage (AnnexV). Other IMO conventions includeSOLAS; the 1978 International Con-vention on Standards of Training,

Certification and Watchkeeping, 96thCong., 1st Sess. Sen. Ex. EE (STCW);and the International Convention onOil Pollution Preparedness, Response,and Cooperation, Sen. Treaty Doc. 102-11. At present, the United States isparty to all of the foregoing exceptMARPOL Annex IV.

Regionally, both the SPREP Con-vention (article 6) and the CartagenaConvention (article 5) contain broad ob-ligations concerning pollution fromvessels.

Paragraph 2 obligates States toadopt measures relating to vessels fly-ing their flag or of their registry. Suchlaws and regulations must at least havethe same effect as that of generallyaccepted international rules and stan-dards established through the com-petent international organization orgeneral diplomatic conference (e.g.,MARPOL).

Paragraph 3 recognizes the author-ity of port States to establish their ownrequirements relating to vessel sourcepollution as a condition of entry of for-eign vessels into their ports or internalwaters or for a call at their offshoreterminals. Although port state author-ity has long been exercised by manycountries as a means of enforcingsafety and environmental measures, in-cluding the United States pursuant tothe Ports and Waterways Safety Act,33 U.S.C. §§ 1223 & 1228, its prominentrecognition in the Convention and theprovisions for cooperation among portStates are important steps forward inmarine environmental protection.

Paragraph 4 recognizes the author-ity of coastal States, in the exercise oftheir sovereignty within their territo-rial sea, to establish requirementsrelating to pollution from foreign ves-sels in their territorial sea, includingvessels exercising the right of innocentpassage. This authority is balanced bythe proviso in paragraph 4 that suchlaws and regulations shall, in accor-dance with Part II, section 3, nothamper innocent passage of foreignvessels. However, passage is not inno-cent if the vessel engages in “any act ofwilful and serious pollution contrary tothis Convention” (article 19(2)(h)).


Law of the Sea

Paragraph 5 recognizes the author-ity of coastal States, for the purpose ofenforcement as provided for in section6, to establish requirements relating topollution from foreign vessels in theirEEZs. Unlike requirements in the ter-ritorial sea, coastal State requirementsregarding pollution from foreign shipsin the EEZ must conform to and giveeffect to generally accepted interna-tional rules and standards establishedthrough the competent internationalorganization (i.e., the IMO) or a generaldiplomatic conference.

Paragraph 6 sets forth circum-stances under which coastal States mayestablish special anti-pollution mea-sures for foreign ships in particularareas of their respective EEZs. Suchmeasures, among other things, requireIMO approval. This paragraph strikesan important balance between the needfor universal respect for necessarysupplemental anti-pollution measuresin particular coastal areas and the needto protect freedom of navigation fromunilateral coastal State restrictions.

Domestically, vessel source pollu-tion is governed primarily by the Act toPrevent Pollution from Ships, 33 U.S.C.§§ 1901-1912, the Clean Water Act, 33U.S.C. §§ 1251- 1387, the Ports and Wa-terways Safety Act, 33 U.S.C. § 1221 etseq., the Marine Protection, Researchand Sanctuaries Act (Ocean DumpingAct), 33 U.S.C. § 1401 et seq., the OilPollution Act of 1990, 33 U.S.C. § 2761et seq., the Refuse Act, 33 U.S.C. § 407et seq., and the Comprehensive Envi-ronmental Response Compensation andLiability Act, 42 U.S.C. § 9601 et seq.

Pollution From or Through theAtmosphere (Article 212). There is atpresent no global agreement directlygoverning marine pollution from orthrough the atmosphere. The partiesto MARPOL are currently negotiatinga possible new Annex VI that wouldaddress air pollution from ships. Ar-ticle 9 of the SPREP and CartagenaConventions have broad obligationsrelating to pollution to those regionsfrom discharges into the atmosphere. Domestically, such provisions are ad-dressed through the Clean Air Act, 42U.S.C. § 7401 et seq.

Enforcement (Articles 213-222)

Section 6 sets forth the rights and obli-gations of States to ensure compliancewith and to enforce measures adoptedin accordance with articles 207 through212. In this respect, the Conventiongoes beyond and strengthens existinginternational agreements, many ofwhich do not have express enforcementclauses.

Pursuant to article 229, nothing inthe Convention affects the institutionof civil (as opposed to punitive) pro-ceedings in respect of any claim for lossor damage resulting from pollution ofthe marine environment.

There are express enforcementprovisions relating to pollution fromland-based sources (article 213), sea-bed activities (article 214), activities inthe Area (article 215), dumping (article216), vessels (articles 217-220), mari-time casualties (article 221), andpollution from or through the atmo-sphere (article 222). Although all ofthese articles contain specific obliga-tions, the provisions regarding theenforcement for vessel source pollutionare set out in detail.

Article 217 places a duty on flagStates to ensure that vessels flyingtheir flag or of their registry complywith the measures adopted in accor-dance with the Convention. Amongother things, flag States must ensurethat vessels flying their flag or of theirregistry are in compliance with interna-tional rules and standards, carryrequisite certificates, and are periodi-cally inspected. If a vessel commits aviolation of applicable rules and stan-dards, the flag State must provide forimmediate investigation and, whereappropriate, institute proceedings irre-spective of where the violation orpollution has occurred. Penalties mustbe adequate in severity to discourageviolations wherever they occur. Article217 is consistent with article 4 ofMARPOL, chapter I of the Annex toSOLAS, and article VI of STCW.

Section 6 also sets forth the rightsof port States and coastal States totake enforcement action against foreignflag vessels that do not comply withmeasures adopted in accordance withthe Convention.

Article 218 recognizes the authorityof the port State to take enforcementaction in respect of a discharge from avessel on the high seas in violation ofapplicable international rules and stan-dards. (Discharges in the territorialsea or EEZ of the port State are ad-dressed in article 220(1).) The portState may also take enforcement actionin respect of a discharge violation in theinternal waters, territorial sea or EEZof another State if requested by thatState, the flag State, or a State dam-aged or threatened by the discharge, orif the violation has caused or is likely tocause pollution to the internal waters,territorial sea, or EEZ of the portState.

Article 219 recognizes the authorityof the port State to prevent a vesselfrom sailing when it ascertains that thevessel is in violation of applicable inter-national rules and standards relating toseaworthiness and thereby threatensdamage to the marine environment.

Article 220 provides an overall en-forcement scheme for vessel sourcepollution based on various factors, in-cluding the location of the vessel, thelocation of the act of pollution, and theseverity of the pollution. Article 220affects only vessel discharges and doesnot apply to enforcement with respectto other types of pollution, such as bydumping.

Article 220 recognizes the authorityof the coastal State to take enforce-ment action with respect to a foreignflag vessel in its EEZ or territorial sea,whether or not that vessel enters aport of the coastal State. However,such enforcement authority is not un-fettered. Article 220 balances theinterests of coastal States in taking en-forcement action with rights andfreedoms of navigation of flag States.It recognizes express safeguards appli-cable to enforcement action againstforeign flag vessels (see section 7).

Article 220(1) recognizes theauthority of a coastal State to takeenforcement action against a vesselvoluntarily within its port or off-shoreterminal when a violation involvingthat vessel has occurred within theterritorial sea or the EEZ of thecoastal␣State.


Law of the Sea

Under Article 220(2), where thereare clear grounds for believing that avessel navigating in the territorial seaof a State has, during its passagetherein, violated laws and regulationsof the coastal State adopted in accor-dance with the Convention, the coastalState may undertake physical inspec-tion of the vessel relating to theviolation and may, where the evidenceso warrants, institute proceedings, in-cluding the detention of the vessel.

Under Article 220(3), where thereare clear grounds for believing that avessel navigating in the EEZ or theterritorial sea of a State has, in theEEZ, committed a violation of appli-cable international rules and standardsfor the prevention, reduction and con-trol of pollution from vessels, or lawsand regulations of the coastal Stateconforming and giving effect to suchrules and standards, the coastal Statemay require the vessel to provide infor-mation regarding its identity and portof registry, its last and its next port ofcall and other relevant information re-quired to establish whether a violationhas occurred.

Article 220(4) requires flag Statesto adopt laws and regulations and takeother measures so that their vesselscomply with requests for informationby coastal States under paragraph 3.

Where a violation referred to in ar-ticle 220(3) results in a substantialdischarge causing or threatening sig-nificant pollution of the marineenvironment, article 220(5) authorizesthe coastal State to undertake physicalinspection of the vessel for matters re-lating to the violation if the vessel hasrefused to give information or if theinformation supplied by the vessel ismanifestly at variance with the evidentfactual situation and if the circum-stances of the case justify suchinspection.

Where a violation referred to inarticle 220(3) results in a dischargecausing major damage or threat of ma-jor damage to the coastline or relatedinterests of the coastal State, article220(6) authorizes the coastal State, un-der certain circumstances, to instituteproceedings, including detention of thevessel.

Pursuant to article 233, Sections 5and 6 do not affect the legal regime ofstraits. Article 233 applies to enforce-ment of laws and regulations applicableto transit passage under article 42 and,by extension, to archipelagic sea lanespassage under article 54.

Safeguards (Articles 223-233)

Section 7 establishes several safe-guards concerning enforcementauthority. These include an obligationto facilitate proceedings involving for-eign witnesses and the admission ofevidence submitted by another State(article 223), a specification as to whatofficials and vessels may exercise en-forcement authority against foreignvessels (article 224), a duty to avoid ad-verse consequences in the exercise ofenforcement powers (article 225), safe-guards concerning delay and physicalinspection of foreign vessels (article226), and a duty of non-discriminationagainst foreign vessels (article 227).

Under article 226, States may notdelay a foreign vessel “longer than isessential” for the purposes of the inves-tigations provided for in articles 216,218, and 220. Moreover, any physicalinspection of a foreign vessel is limitedto an examination of such certificates,records or other documents as the ves-sel is required to carry. Any furtherphysical examination may be under-taken only after such an examinationand only when: (i) there are cleargrounds for believing that the conditionof the vessel or its equipment does notcorrespond substantially with the par-ticulars of those documents; (ii) thecontents of such documents are not suf-ficient to confirm or verify a suspectedviolation; or (iii) the vessel is not carry-ing valid certificates and records.While the Convention imposes differ-ent procedural restrictions on physicalinspections than U.S. law, it is antici-pated that one or more of theexceptions for allowing further physicalexamination will be met in cases wherethere are “clear grounds” to believe aviolation has occurred.

Article 228, which applies only tovessel source pollution, sets forth cir-cumstances under which proceedingsshall be suspended and restrictions oninstitution of proceedings. For ex-

ample, consistent with the notion inSection 6 that the flag State is prima-rily responsible for ensuring com-pliance with the Convention of vesselsflying its flag or of its registry, article228(1) requires the suspension of en-forcement proceedings against foreignvessels if the flag State institutes itsown proceedings to impose penaltieswithin six months of the date on whichproceedings were first initiated. Sus-pension would not be required if theflag State fails to initiate proceedingswithin six months, if the proceedingsrelate to a case of major damage to thecoastal State, or the flag State in ques-tion has repeatedly disregarded itsobligation to enforce effectively theapplicable international rules and stan-dards in respect of violations com-mitted by its vessels. The suspendedproceeding will be terminated when theflag State has brought its proceedingsto a conclusion. Article 228(2) imposesa limitation of three years in which tocommence proceedings against foreignvessels.

Article 230, which applies only tovessel source pollution, provides thatonly monetary penalties may be im-posed with respect to violationscommitted by foreign vessels beyondthe territorial sea. With respect to vio-lations committed by foreign vessels inthe territorial sea, non-monetary penal-ties (i.e., incarceration) may be appliedas well, but only if the vessel has com-mitted a willful and serious act ofpollution. The requirement that the actbe “willful” would not constrain penal-ties for gross negligence. Article 230applies only to natural persons aboardthe vessel at the time of the discharge.

Article 231 provides for notificationto the flag State and other States con-cerned of any measure taken againstthe foreign vessel. Under article 232,the enforcing State will be liable fordamage or loss caused by measurestaken that are unlawful or exceed thosereasonably required in light of availableinformation.

The extent to which, if at all, Sec-tions 6 and 7 (on enforcement andsafeguards, respectively) will enhanceand/or constrain U.S. enforcementauthorities is the subject of ongoinganalysis.


Law of the Sea

Ice-Covered Areas (Article 234)

Section 8 authorizes coastal States toadopt and enforce laws and regulationsrelating to marine pollution from ves-sels in ice-covered areas within thelimits of the EEZ, where particularlysevere climatic conditions and the pres-ence of ice covering such areas for mostof the year create obstructions or ex-ceptional hazards to navigation, andpollution of the marine environmentcould cause major harm to, or irrevers-ible disturbance of, the ecologicalbalance.

Pursuant to this article, a Statemay enact and enforce non-discrimina-tory laws and regulations to protectsuch ice-covered areas that are within200 miles of its baselines established inaccordance with the Convention. Suchlaws and regulations must have due re-gard to navigation and the protectionand preservation of the marine envi-ronment, based on the best availablescientific evidence, and must be other-wise consistent with other relevantprovisions of the Convention and inter-national law, including the exemptionfor vessels entitled to sovereign immu-nity under article 236.

The purpose of article 234, whichwas negotiated directly among the keystates concerned (Canada, the UnitedStates and the Soviet Union), is to pro-vide the basis for implementing theprovisions applicable to commercialand␣private vessels found in the 1970Canadian Arctic Waters Pollution Pre-vention Act to the extent consistentwith that article and other relevantprovisions of the Convention, whileprotecting fundamental U.S. securityinterests in the exercise of navigationalrights and freedom throughout theArctic.

Responsibility and Liability(Article 235)

Section 9 provides that States areresponsible for the fulfilment of theirinternational obligations concerning theprotection and preservation of the ma-rine environment and that they shall beliable in accordance with internationallaw. It further provides that Statesshall ensure recourse in their legal sys-tems for relief from damage caused by

tives of this Convention. The UnitedStates does not anticipate any changein its implementation of other agree-ments, since it currently implementssuch agreements consistent with theprinciples and objectives of the Con-vention.

LIVING MARINE RESOURCES(Articles 2, 56, 61-73, 77(4),116-120)

Approximately 90 percent of livingmarine resources are harvested within200␣miles of the coast. By authorizingthe establishment of EEZs, and byproviding for the sovereign rightsand␣management authority of coastalStates over living resources withintheir EEZs, the Convention hasbrought most living marine resourcesunder the jurisdiction of coastal States.

The Convention recognizes theneed for consistent management of eco-systems and fish stocks throughouttheir migratory range, and sound man-agement on the basis of biologicalcharacteristics. It imposes on thecoastal State a duty to conserve the liv-ing marine resources of its EEZ.

While the Convention preserves thefreedom to fish on the high seas beyondthe EEZ, it makes that freedom sub-ject to certain obligations, particularlythe duty to cooperate in the conserva-tion and management of high seasliving resources. Failure to respectthese obligations beyond the EEZ issubject to compulsory arbitration oradjudication. Tribunals are empoweredto prescribe provisional measures topreserve the respective rights of theparties to the dispute or to preventserious harm to the marine environ-ment, including its living resources,pending the final decision.

The Convention’s provisions relat-ing to the conservation and manage-ment of living marine resources areconsistent with U.S. law, policy andpractice, and have provided the founda-tion for the international agreementsgoverning this subject. These provi-sions are more critical today to U.S.living marine resource interests thanthey were in 1982 because of the dra-matic overfishing that has occurredworld-wide in the past decade.

pollution of the marine environment.Finally, it obligates States to cooperatein the implementation of existing inter-national law and the further develop-ment of international law relating toresponsibility and liability.

Sovereign Immunity (Article 236)

Section 10 provides that the provisionsof the Convention regarding the pro-tection and preservation of the marineenvironment do not apply to any war-ship, naval auxiliary, or other vesselsand aircraft owned or operated by aState and used, for the time being,only␣on government non-commercialservice. However, the second sentenceof article 236 imposes on flag States theduty to ensure, by adopting appropri-ate measures not impairing operationsor operational capabilities of such ves-sels or aircraft owned and operatedby␣it, that such vessels and aircraftact␣in a␣manner consistent, so far as isreasonable and practicable, with theConvention.

This article acknowledges that mili-tary vessels and aircraft are uniqueplatforms not always adaptable to con-ventional environmental technologiesand equipment because of weight andspace limitations, harsh operating con-ditions, the requirements of long-termsustainability, or other security consid-erations. In addition, security needsmay limit compliance with disclosurerequirements.

Obligations Under OtherConventions on the ProtectionAnd Preservation of the MarineEnvironment (Article 237)

Section 11 (article 237(1)) provides thatthe provisions in Part XII are withoutprejudice to the specific obligationsassumed by States under agreementspreviously concluded which relate tothe protection and preservation of themarine environment and to agreementwhich may be concluded in furtheranceof the general principles set forth in theConvention. Article 237(2) providesthat specific obligations assumed byStates under other agreements shouldbe carried out in a manner consistentwith the general principles and objec-


Law of the Sea

Territorial Sea and EEZ

Basic Rights and Obligations. TheConvention gives the coastal Statebroad authority to conserve andmanage living resources within its ter-ritorial sea and EEZ. Article 2 of theConvention provides that the sover-eignty of the coastal State extendsthroughout the territorial sea. Aspart␣of the exercise of such sover-eignty, the coastal State has the exclu-sive right to conserve and manage re-sources, including living resources,within the territorial sea, which mayextend up to 12 miles from coastalbaselines.

The Convention also provides thatthe coastal State has sovereign rightsfor the purpose of exploring and ex-ploiting, conserving and managingliving resources within its EEZ, includ-ing the right to utilize fully the totalallowable catch of all such resources(articles 56, 61, 62). With these rightscome general responsibilities for thecoastal State, including the duty:

• To determine the allowable catchof living resources in its EEZ (article61(1));

• To ensure that such resources arenot endangered by over-exploitation(article 61(2));

• To take into account effects of itsmanagement measures on non-targetspecies with a view to maintaining orrestoring such species above levels atwhich their reproduction may becomeseriously threatened (article 61(3));

• To promote the objective of opti-mum utilization of such resources(article 62(1)); and

• To determine its capacity to har-vest such resources and to give otherStates access to any surplus under rea-sonable conditions (article 62(2)).

The coastal State has significantflexibility in defining optimum utiliza-tion and in fixing allowable catch, indetermining its harvesting capacity,and therefore in determining what, ifany, surplus may exist. The coastalState must, taking into account thebest scientific evidence available to it,ensure that over-exploitation of stockswithin its EEZ does not jeopardize themaintenance of the stocks overall and

must maintain stocks of harvested spe-cies at levels which can producemaximum sustainable yields, as quali-fied by economic, environmental andother factors.

Similarly, the Convention givescoastal States wide discretion in choos-ing which other States will be allocateda share of any surplus. In making thischoice, the coastal State must take intoaccount “all relevant factors.” Foreignfishing, to the extent authorized, maybe conditioned upon observance of awide variety of coastal State regula-tions, including area, season, vessel andgear restrictions, research, reportingand observer requirements, and com-pensation in the form of fees, financing,equipment, training and technologytransfer.

U.S. law, primarily the MagnusonFishery Conservation and ManagementAct, as amended (16 U.S.C. § 1801 etseq.) (MFCMA), fully enables theUnited States to exercise its rights andimplement its obligations with respectto the provisions of the Convention dis-cussed above.

The MFCMA provides the UnitedStates with exclusive fishery manage-ment authority over all fisheryresources up to the 200-mile limit of theU.S. EEZ (16 U.S.C. § 1811(a)). TheMFCMA requires conservation of suchresources in a manner consistent witharticle 61 (16 U.S.C. § 1851) and pro-vides the legislative basis on which theUnited States determines the allowablecatch of the living resources in its EEZ,as required by article 61 (16 U.S.C.§␣1852). The process for making thatdetermination fully comports with theprinciples of conservation and optimumutilization contained in articles 61 and62. Fishery management plans devel-oped pursuant to the MFCMA mustprohibit overfishing and must attemptto achieve “optimum yield” (16 U.S.C.§␣1851(a)(l)).

While the MFCMA does not sepa-rately address the issue of associatedor dependent species, it gives suffi-ciently broad authority to regionalfishery management councils to permitthem to protect non-target species tothe extent required by article 61(3),and arguably requires the councils todo so by providing that, to the extentpracticable, interrelated species shall

be managed as a “unit” (16 U.S.C.§␣1851(a)(3)). The Endangered SpeciesAct (16 U.S.C. § 1651 et seq.) would in-dependently protect those non-targetspecies that were endangered orthreatened throughout a significantportion of their range.

The MFCMA authorizes the alloca-tion of any surplus to foreign Statesand establishes terms and conditionsfor any foreign fishing in the U.S. EEZ,thus providing the basis on which tofulfill any such obligations under article62 (16 U.S.C. § 1821 generally and§␣1824(b)(7)). In fact, because the har-vesting capacity of the U.S. domesticfishing industry has in recent yearsbeen estimated to equal the total allow-able catch of all relevant speciessubject to U.S. management authority,the United States has had no surplus toallocate to potentially interestedStates.

To have an opportunity to receivean allocation, a foreign nation musthave in force a “governing internationalfishery agreement” (GIFA) with theUnited States (16 U.S.C. § 1821). Thisrequirement is fully consistent witharticle 62. Presently, the United Stateshas GIFAs in force with 5 nations,although, as noted above, there hasbeen no surplus to allocate under suchGIFAs in recent years.

In the event that a surplus of one ormore species becomes available in thefuture, the MFCMA lists a variety offactors to be considered in determiningthe allocation of such surplus amongforeign States (16 U.S.C. § 1821(e)).The Convention also lists many of thesesame factors, either as relevant consid-erations or as permissible terms andconditions for foreign fishing (article62(3) & (4)). The Convention’s list isnot exhaustive and does not restrictutilizing any of the factors set forth inthe MFCMA.

Although articles 69 and 70 requirecoastal States to give some specialconsideration to land-locked and geo-graphically disadvantaged States inthe␣same subregion or region in allocat-ing any surplus, the Convention doesnot provide clear standards by which todetermine whether any such States ex-ist in the U.S. subregion or region. Inany event, the language of these ar-ticles and that of article 62 gives the


Law of the Sea

coastal State wide discretion in makingsuch allocations and cannot be read tocompel the making of an allocation toany particular State.

The MFCMA imposes other condi-tions on foreign fishing, including thepayment of permit fees and compliancewith fishery regulations and enforce-ment provisions (16 U.S.C. § 1821).The Convention permits the coastalState to impose all these conditions andrequires nationals of other States fish-ing in an EEZ to observe regulationsof␣the coastal State (article 62(4)).

In sum, the MFCMA provides afully sufficient basis on which theUnited States could exercise its rightsand implement its obligations withrespect to the conservation and man-agement of living resources within itsterritorial sea and EEZ.

Particular Categories of Species.Articles 63 through 68 of the Conven-tion set forth additional provisionsrelating to particular categories of liv-ing resources that do not remain solelywithin areas under the fishery manage-ment authority of a single coastal State.U.S. law, and the international agree-ments to which the United States isparty, as well as the 1992 United Na-tions moratorium on high seas driftnetfishing, are fully consistent with theseprovisions.

Article 63(1) requires coastal Stateswithin whose EEZs the same stock orstocks of associated species occur toseek to agree on the measures neces-sary to coordinate and ensure theconservation and development of suchstocks. The MFCMA calls for the Sec-retary of State to negotiate suchagreements (16 U.S.C. § 1822). One ex-ample of such an agreement is the U.S.-Canada Convention for the Preserva-tion of the Halibut Fishery of theNorthern Pacific Ocean and BeringSea, March 2, 1953, 5 UST 5, TIAS No.2900, 222 UNTS 77.

Articles 63(2) and 64, respectively,address “straddling” stocks and highlymigratory species. These provisionsare reviewed below in detail.

Article 65 of the Convention recog-nizes the right of a coastal State or thecompetence of an international organi-zation, as appropriate, to prohibit, limitor regulate exploitation of marine

mammals more strictly than is requiredin the case of other living resources.Article 65 also requires States to coop-erate with a view to conserving marinemammals and, in the case of cetaceans,to work in particular through appropri-ate international organizations. Article120 makes article 65 applicable to thehigh seas as well.

These provisions lent direct supportto the efforts of the United States andother conservation-minded Stateswithin the International Whaling Com-mission to establish a moratorium oncommercial whaling. Prior to the adop-tion of these provisions in the text,whaling States argued that the Con-vention should require that protectivemeasures for marine mammals may dono more than ensure the maintenanceof maximum sustainable yield. Thesearguments were definitively rejected inthe Third United Nations Conferenceon the Law of the Sea, paving the wayfor the commercial whaling moratoriumand other measures that strictly pro-tect marine mammals, including theSouthern Ocean Whale Sanctuaryadopted in 1994 by the InternationalWhaling Commission.

U.S. law, including the MarineMammal Protection Act of 1972, asamended, and the Whaling ConventionAct of 1949, as amended (16 U.S.C.§␣916 et seq.), strictly limits the exploi-tation of marine mammals within theU.S. territorial sea and EEZ and byU.S. vessels and persons subject toU.S. jurisdiction elsewhere.

Article 66 sets forth provisions re-lating to anadromous stocks (fish thatmigrate from salt water to spawn infresh water) such as salmon, which rec-ognize their special characteristics andreflect a major U.S. policy accomplish-ment. Article 66(1) provides that“States in whose rivers anadromousstocks originate shall have the primaryinterest in and responsibility for suchstocks.”

Article 66(2) authorizes the State oforigin, after consulting with other rel-evant States, to set total allowablecatches for anadromous stocks originat-ing in its rivers.

Article 66(3)(a) prohibits fishing foranadromous stocks on the high seas be-yond the EEZ except when such a

prohibition would “result in economicdislocation” for a State other than aState of origin. On its face, this provi-sion makes unlawful any new high seassalmon fisheries or the expansion ofcurrent ones. In fact, at the time theConvention was concluded, only Japanmaintained a high seas salmon fishery.Since the entry into force of the 1992Convention for the Conservation ofAnadromous Stocks in the North Pa-cific Ocean, on February 16, 1993, thatfishery has been prohibited as well.The 1982 Convention for the Conserva-tion of Salmon in the North AtlanticOcean, TIAS No. 10789, also prohibitshigh seas fishing for salmon in that re-gion. Thus, the combined effect of theLOS Convention and these two treatiesprecludes any fishery for U.S.-originsalmon, or any other salmon, on thehigh seas, a major benefit to the UnitedStates.

U.S. law implementing the NorthPacific and North Atlantic salmon trea-ties prohibits persons or vesselssubject to the jurisdiction of the UnitedStates from fishing for salmon on thehigh seas of those regions (16 U.S.C.§§␣3606, 5009).

Article 66 does not supersede thesovereign rights of the coastal Stateover anadromous stocks exercised inthe territorial sea and EEZ pursuant toarticles 2 and 56(1)(a), respectively, orthose coastal State rights recognizedunder articles 61 and 62.

Anadromous stocks that originatein one State and migrate through theinternal waters, territorial sea or EEZof another State are subject to inter-ception by the latter. In such cases,article 66(4) of the Convention requiresthe States concerned to cooperate inmatters of conservation and manage-ment. The 1985 Treaty Between theGovernment of the United States andthe Government of Canada ConcerningPacific Salmon, TIAS No. 11091, cur-rently the subject of additionalnegotiations, established the PacificSalmon Commission to effect such co-operation on salmon in that region. Itshould be noted, however, that the so-called equity principle of the PacificSalmon Treaty does not derive from ar-ticle 66, but is specific to that Treaty.


Law of the Sea

Under article 67, catadromousstocks (fish that migrate from fresh wa-ter to spawn in salt water) are thespecial responsibility of those Stateswhere they spend the greater part oftheir life cycle, and may not be har-vested on the high seas beyond theEEZ. The United States exercises ex-clusive fishery management authorityover catadromous stocks within theU.S. EEZ under the general provisionsof the MFCMA discussed above.

Enforcement. The Conventionauthorizes the coastal State to take abroad range of measures to enforceits␣fishery laws, including boardingsand inspections, requirements for ob-server coverage and vessel positionreports, and arrests and fines (articles62(4) &␣73). The Convention requiresthat vessels arrested in the EEZ andtheir crews must be promptly releasedupon posting of a bond or other secu-rity. This rule is consistent with U.S.law. The rare foreign fishermancharged with a criminal violation offisheries law may post bail; theMFCMA also provides for the releaseof a seized vessel upon the posting of asatisfactory bond (16 U.S.C. § 1860(d)).

Under the Convention, penalties forviolations of fisheries laws in the EEZmay not include imprisonment, unlessthe States concerned agree to the con-trary, or other form of corporalpunishment (article 73). The MFCMAprovides for criminal fines of up to$200,000 for fishing violations commit-ted by foreign fishermen. TheMFCMA also provides for imprison-ment for such acts as forcible assault,resisting or interfering with arrest, andobstructing a vessel boarding by an en-forcement officer (16 U.S.C. § 1859(b)).The Convention does not preclude im-prisonment of those who assaultofficers, resist arrest, or violate othernon-fishery laws.

The provisions of the Conventionprohibiting imprisonment or corporalpunishment for fishing violations re-sponded to the severe treatment metedout to foreign fishermen in some places.Although the Convention limits theability of the United States to imposeprison sentences on foreign fishermenwho violate U.S. fishery laws, the Con-vention promotes a major U.S.

objective in protecting U.S. fishermenseized by other States from the imposi-tion of prison sentences. On balance,these provisions of the Conventionserve U.S. interests overall, given thatmany U.S. fishermen are actively en-gaged in fishing within foreign EEZs,while no foreign fishing is authorizedwithin the U.S. EEZ at present.

Continental Shelf

Under articles 68 and 77 of the Conven-tion, sedentary species, such as coral,are not subject to the Convention’s pro-visions relating to the EEZ, but aredealt with in the articles relating to thecontinental shelf. Under article 77, thecoastal State has sovereign rights forthe purpose of exploring and exploitingthe sedentary species of the continentalshelf, unqualified by the duties specifi-cally associated with the conservationand management of living resources inthe EEZ. This result is consistent witharticle 2(4) of the Continental ShelfConvention.

The definition of sedentary speciesremains the same as that in the Conti-nental Shelf Convention:

organisms which, at the harvestablestage, either are immobile on or underthe sea-bed or are unable to move ex-cept in constant physical contact withthe sea-bed or the subsoil.

Neither convention provides ex-amples of sedentary species subject tocoastal State jurisdiction. However,the MFCMA specifies a number of va-rieties of coral, crab, mollusks andsponges as included within the seden-tary species subject to U.S. continentalshelf jurisdiction, and permits identifi-cation of other species when publishedin the Federal Register (16 U.S.C.§␣1802(4)).

High Seas

International law has long recognizedthe right of all States for their nationalsto engage in fishing on the high seas(High Seas Convention, article 2(2)).The freedom of high seas fishing hasnever been an unfettered right, how-ever. The High Seas Convention, forexample, required this freedom to be

exercised by all States with “reason-able regard to the interests of otherStates in their exercise of the freedomof the high seas.”

By authorizing the establishment ofEEZs out to 200 miles, the LOS Con-vention has significantly reduced theareas of high seas in which fishermenmay exercise this freedom.

Moreover, while article 87(1)(e) ofthe Convention preserves the right ofall States for their nationals to engagein fishing on the high seas, it makes thisright subject to a number of important,though general, conditions set forth inarticles 116-120:

• Other treaty obligations of theState concerned;

• The rights and duties as well asthe interests of coastal States providedfor, inter alia, in article 63(2) and ar-ticles 64-67; and

• Basic obligations to cooperate inthe conservation and management ofhigh seas living resources set forth inarticles 117-119.

In furtherance of these provisions,the international community has con-cluded numerous treaties that regulateor prohibit high seas fisheries. Amongthese treaties are many to which theUnited States is party, including, interalia:

• International Convention forthe␣Conservation of Atlantic Tunas,May 14, 1966, 20 UST 2887, TIAS No.6767, 673 UNTS 63;

• Convention for the Establish-ment of an Inter-American TropicalTuna Commission, March 3, 1950, 1UST 230, TIAS No. 2044, 80 UNTS 3;

• Convention for the Conservationof Anadromous Stocks in the North Pa-cific Ocean, February 11, 1992;

• Convention for the Conservationof Salmon in the North Atlantic Ocean,March 2, 1982, TIAS No. 10789;

• Convention on the Conservationof Antarctic Marine Living Resources,May 20, 1980, 33 UST 3476, TIAS No.10240;

• Treaty on Fisheries Between theGovernments of Certain Pacific IslandStates and the Government of theUnited States of America, April 2,1987, TIAS No. 11100;


Law of the Sea

• Convention for the Prohibition ofFishing with Long Driftnets in theSouth Pacific, November 24, 1989; and

• International Convention for theRegulation of Whaling, November 19,1956, 10 UST 952, TIAS No. 4228, 338UNTS 366.

The United States has also recentlyparticipated in the conclusion of twoother treaties relating to high seas fish-ing that are not yet in force, namely,the Convention on the Conservationand Management of Pollock Resourcesin the Central Bering Sea, Sen. TreatyDoc. 103-27, and the Agreement to Pro-mote Compliance with InternationalConservation and Management Mea-sures by Fishing Vessels on the HighSeas, Sen. Treaty Doc. 103-24.

The United States was also instru-mental in promoting the adoption, byconsensus, of United Nations GeneralAssembly Resolutions 44/225, 45/297and 46/215, which have effectivelycreated a moratorium on the use oflarge-scale driftnets on the high seas.In pressing for the adoption of theseresolutions, the United States reliedheavily on the fact that large-scaledriftnets in the North Pacific Ocean in-tercepted salmon of U.S. origin inviolation of article 66 of the Conventionand indiscriminately killed large num-bers of other species, including marinemammals and birds, in violation of thebasic conservation and related obliga-tions contained in the Convention. Increating the moratorium, the interna-tional community implementedobligations flowing from these provi-sions of the Convention.

Existing U.S. law implements allpertinent U.S. obligations flowing fromthe general provisions of articles 116-120 of the Convention and theadditional treaties to which the UnitedStates is party. The MFCMA also callsupon the Secretary of State to negoti-ate any additional treaties and otherinternational agreements that may benecessary or appropriate in the fulfill-ment of U.S. obligations under theConvention to cooperate in the conser-vation and management of livingresources of the high seas (16 U.S.C.§␣1822).

“Straddling” Stocks andHighly Migratory Species

While virtually all members of theinternational community accept thefishery provisions of the Convention asreflective of customary law, differencesremain over their interpretation andapplication, particularly as they relateto so-called “straddling” stocks andhighly migratory species. This part ofthe Commentary will review these pro-visions in detail, as well as on-goingefforts to resolve the differences thatremain.

“Straddling” Stocks. Althoughthe Convention does not use the term“‘straddling’ stocks,” that term hascome to refer to those stocks describedin article 63(2), which provides that:

Where the same stock or stocks of asso-ciated species occur both within theexclusive economic zone and in an areabeyond and adjacent to the zone, thecoastal State and the States fishing forsuch stocks in the adjacent area shallseek, either directly or through appro-priate subregional or regionalorganizations, to agree upon the mea-sures necessary for the conservation ofthese stocks in the adjacent area.

This provision reflects the need for in-ternational cooperation in theconservation of stocks that “straddle”the line that separates the EEZ fromthe high seas beyond. While the Con-vention recognizes the rights andresponsibilities of the coastal Statewith respect to stocks occurring withinits EEZ (article 56), overfishing for thesame stock (or stocks of associated spe-cies) in the adjacent high seas area canradically undermine efforts by thecoastal State to exercise those rightsand fulfill those responsibilities.

Article 63(2) obligates the coastalState and the States fishing for suchstocks in the adjacent area to “seek toagree” on necessary conservation mea-sures for these stocks in the adjacentarea. Three features of this provisionare worth noting. First, the coastalState has the right to participate in thenegotiations contemplated by article63(2) whether or not it maintains a fish-ery for the stocks in question eitherwithin its EEZ or in the adjacent highseas area. Second, the conservationmeasures to be negotiated are for ap-

plication only in the adjacent high seasarea, not in the coastal State’s EEZ, al-though, to be effective, the measuresapplied in the two areas should be com-patible. Finally, article 63(2) leavesunresolved the question of what hap-pens when the States concerned havenot been able to agree on necessarymeasures. The on-going United Na-tions Conference on Straddling FishStocks and Highly Migratory FishStocks, discussed below, is presentlygrappling with this issue.

While disputes over straddlingstocks in other parts of the worldremain, article 63(2) provided the basison which the United States was ableto␣resolve a conflict over the primarystraddling stock fishery of concern toit,␣namely the fishery for the AleutianBasin stock of Alaskan pollock. Thispollock stock is a valuable straddlingstock that occurs in the EEZs of boththe United States and the RussianFederation, as well as in the high seasarea of the Bering Sea, commonlyknown as the Donut Hole. Overfishingfor pollock in the Donut Hole by otherStates led to a collapse of the stock inthe late 1980s. Relying on article 63(2),the United States and the RussianFederation persuaded the fishingStates in question to conclude the Con-vention on the Conservation andManagement of Pollock Resources inthe Central Bering Sea, which, once itenters into force, will establish an effec-tive conservation and managementregime for pollock in the Donut Hole,consistent with U.S. interests in thatstock as a coastal State.

Highly Migratory Species. Article64 of the Convention provides separatetreatment for highly migratory species(HMS), which are those listed in AnnexI to the Convention. The list includes,inter alia, tuna and billfish. With re-spect to HMS, article 64 provides that:

1. The coastal State and other Stateswhose nationals fish in the region for . . .highly migratory species . . . shall coop-erate directly or through appropriateinternational organizations with a viewto ensuring conservation and promotingthe objective of optimum utilization ofsuch species throughout the region,both within and beyond the exclusive


Law of the Sea

in the establishment of necessary con-servation measures for “straddling”stocks only in the high seas area adja-cent to the EEZ.

State practice has generally fol-lowed this distinction betweenstraddling stocks and HMS. For ex-ample, such tuna treaties as theInternational Convention for the Con-servation of Atlantic Tunas and theConvention for the Establishment of anInter-American Tropical Tuna Com-mission apply both within and beyondthe EEZs in their respective regions.Similarly, the International Conventionfor the Regulation of Whaling applieson a global basis, both within andbeyond EEZs. By contrast, the Con-vention on the Conservation andManagement of Pollock Resources inthe Central Bering Sea and the Con-vention on Future MultilateralCooperation in Northwest AtlanticFisheries, both of which regulate fish-eries for “straddling” stocks, apply onlyin the high seas areas adjacent to therelevant EEZs.

One justification for this distinctionrests on the biological differences be-tween the two categories of stocks.Broadly speaking, “straddling” stocks,such as cod in the Northwest Atlanticand pollock in the Bering Sea, occurprimarily in the EEZs of a very fewcoastal States. Outside the EEZs,these stocks are fished in relatively dis-crete areas of the adjacent high seas.Accordingly, it seems reasonable forthe coastal State “unilaterally” to de-termine conservation and managementmeasures applicable in its EEZ, whilethe high seas fishing States and thecoastal State(s) jointly develop suchmeasures applicable in the adjacent ar-eas.

Most HMS, by contrast, migratethrough thousands of miles of openocean. They are fished in the EEZs oflarge numbers of coastal States and inmany areas of the high seas. No singlecoastal State could adopt effective con-servation and management measuresfor such a stock as a whole. As a result,international cooperation is necessaryin the development of such measuresfor these stocks throughout theirrange, both within and beyond theEEZ.

The list of HMS contained in AnnexI to the Convention may not, on the ba-sis of scientific evidence availabletoday, reflect most accurately thosemarine species that in fact migratemost widely. The MFCMA also definesHMS for the purpose of that statute bylisting some, but not all, of the marinespecies included in Annex I (16 U.S.C.§ 1802(14)). The absence of some An-nex I species from the MFCMAdefinition would not prevent theUnited States from fulfilling its obliga-tions under article 64 to cooperate indeveloping international regimes forHMS regulation, however. Indeed,the␣MFCMA calls upon the Secretaryof State, in consultation with the Secre-tary of Commerce, to negotiate agree-ments to establish such regimes(16␣U.S.C. § 1822(e)).

Finally, although Annex I includesdolphins and cetaceans among thelisted HMS, this would not prejudicethe provisions of articles 65 and 120,which preserve the right of coastalStates and the competence of interna-tional organizations, as appropriate, toprohibit, limit or regulate the taking ofmarine mammals more strictly thanotherwise provided for in the Conven-tion.

United Nations Conference onStraddling Fish Stocks and HighlyMigratory Fish Stocks. As notedabove, articles 63(2) and 64 establish,for “straddling” stocks and HMS, re-spectively, general obligations forcoastal States and other States whosenationals fish for these stocks to coop-erate in conservation and management.Within the framework of these generalobligations, the international commu-nity has concluded numerous treatiesand other agreements to regulate fish-eries for “straddling” stocks and HMS.

The existence of this frameworkand of these treaties and agreementshas not resolved all differences regard-ing the conservation and managementof these species, however. With a viewto resolving these differences, Agenda21, adopted by the 1992 United NationsConference on Environment andDevelopment, called upon the UnitedNations to convene a conference spe-cifically devoted to this subject. As the

economic zone. In regions for which noappropriate international organizationexists, the coastal State and otherStates whose nationals harvest thesespecies in the region shall cooperate toestablish such an organization and par-ticipate in its work.

2. The provisions of paragraph 1apply in addition to the other provisionsof [Part V of the Convention].

At the time the Convention wasconcluded, the United States sharplydisagreed with most other States overthe interpretation of this article. Thepredominant view was that HMS aretreated exactly the same as all otherliving resources in the sense that theyfall within exclusive coastal State au-thority in the territorial sea and EEZunder articles 2 and 56(l)(a), and aresubject to articles 61 and 62. TheUnited States, however, contendedthat article 64, by calling for interna-tional management of HMS throughouttheir migratory range, derogated fromcoastal State claims of jurisdiction. Ac-cording to the U.S. interpretation, acoastal State would not be permitted,absent an agreement, to prevent for-eign vessels from fishing for HMS in itsEEZ.

Effective January 1, 1992, however,the United States amended theMFCMA to include HMS among allother species over which it asserts sov-ereign rights and exclusive fisherymanagement authority while such spe-cies occur within the U.S. EEZ (16U.S.C. § 1812). That amendment alsorecognized, at least implicitly, the rightof other coastal States to assert thesame sovereign rights and authorityover HMS within their EEZs. Withthis amendment, a long-standing juridi-cal dispute came to an end.

The end of the juridical dispute hasnot rendered article 64 meaningless,however. While virtually all Statesnow accept that article 64 does notderogate from the rights of coastalStates over living resources withintheir EEZs, article 64 does require allrelevant States to cooperate in interna-tional management of HMS throughouttheir range, both within and beyond theEEZ. Article 64 thus differs in thiscritical respect from article 63(2), whichobligates relevant States to cooperate


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resulting United Nations Conferenceon Straddling Fish Stocks and HighlyMigratory Fish Stocks has not yet com-pleted its work, it would be prematureto speculate on its outcome, except tosay that all participating States haveagreed that any such outcome must beconsistent with the LOS Convention.

Dispute Settlement

The Convention’s dispute settlementprovisions, as they apply to fisheriesdisputes, reinforce the scheme of thefishery provisions of the Convention asa whole. A coastal State need notsubmit to binding arbitration or adjudi-cation any dispute relating to theexploration, exploitation, conservation,or management of living resources inthe EEZ, including, for example, itsdiscretionary powers for determiningthe allowable catch. However, suchdisputes may, in limited circumstances,be referred to compulsory but non-binding conciliation.

Fishing beyond the EEZ is subjectto compulsory, binding arbitration oradjudication. This will give the UnitedStates an additional means by which toenforce compliance with the Conven-tion’s rules relating to the conservationand management of living marine re-sources and measures required bythose rules, including, for example, theprohibition in article 66 on high seassalmon fishing, the application of ar-ticles 63(2) and 116 in the CentralBering Sea in light of the new PollockConvention, and the application of ar-ticles 66, 116 and 192 in light of theUnited Nations General AssemblyResolutions creating a moratorium onlarge-scale high seas driftnet fishing.

Neither the Convention’s disputesettlement provisions nor any of itsother provisions, however, limit theability of the United States to use othermeans, including trade measures, pro-vided under U.S. law to promotecompliance with environmental andconservation norms and objectives.

The dispute settlement provisionsas they relate to living marine re-sources are discussed more fully belowin the section on dispute settlement.

THE CONTINENTAL SHELF(Article 56(1); Part VI, Articles 76-78, 80-80, 85; Annex II; Final Act,Annex II)

Part VI of the Convention, togetherwith other related provisions on thecontinental shelf, secures for thecoastal State exclusive control over theexploration and exploitation of thenatural resources, including oil and gas,of the sea-bed and its subsoil within 200miles of the coastal baselines and to theouter edge of the geological continentalmargin where the margin extends be-yond 200 miles.

United States interests are wellserved by the Convention’s provisionfor exclusive coastal State control overoffshore mineral resources to the outeredge of the continental margin. In ad-dition, the Convention’s standards andprocedures for delimiting the outeredge of the margin will help avoid un-certainty and disagreement over themaximum extent of coastal State conti-nental shelf jurisdiction. The resultingclarity advances both the resourcemanagement and commercial interestsof the United States, as well as its in-terests in stabilizing claims to maritimejurisdiction by other States.

In order to provide necessary legalcertainty with respect to coastal Statecontrol over exploration and develop-ment activities on the continentalmargin beyond 200 miles, the Conven-tion sets forth detailed criteria fordetermining the outer edge of the mar-gin. In addition, it provides forestablishment of an expert body, theCommission on the Limits of the Conti-nental Shelf, to provide advice andrecommendations on the application ofthese criteria.

Only a limited number of coastalStates, including the United States,have significant areas of adjacent conti-nental margin that extend beyond 200miles from the coast. Many States pre-ferred a universal limit at 200 miles forall. The Convention balances the ex-tension of coastal State control over thenatural resources of the continentalmargin seaward of 200 miles with amodest obligation to share revenues

from successful minerals developmentseaward of 200 miles. The potential eco-nomic benefits of these resources to thecoastal State greatly exceed any lim-ited revenue sharing that may occur inthe future.

The Concept of theContinental Shelf

From a geological perspective, the con-tinental shelf is only one part of thesubmerged prolongation of land terri-tory offshore. It is the inner-most ofthree geomorphological areas—the con-tinental slope and the continental riseare the other two—defined by changesin the angle at which the sea-bed dropsoff toward the deep ocean floor. Theshelf, slope and rise, taken together,are geologically known as the continen-tal margin (see Figure 2). Worldwide,there is wide variation in the breadthsof these areas.

National claims to the continentalshelf in modern times date from Presi-dent Truman’s 1945 Proclamation onthe Continental Shelf, by which theUnited States asserted exclusive sov-ereign rights over the resources of thecontinental shelf off its coasts. TheTruman Proclamation specificallystated that waters above the continen-tal shelf were to remain high seas andthat freedom of navigation and over-flight were not to be affected(Presidential Proclamation No. 2667,Sept. 28, 1945, 3 CFR 67 (1943-48Comp.)).

Differing interpretations and appli-cation of concepts underlying theTruman Proclamation led to interna-tional efforts to develop a more precisedefinition of the continental shelf. Thefirst result of these efforts was theContinental Shelf Convention thatemerged from the First United NationsConference on the Law of the Sea in1958. It provides that the continentalshelf refers to:

the sea-bed and subsoil of the subma-rine areas adjacent to the coast butoutside the area of the territorial sea, toa depth of 200 meters or, beyond thatlimit, to where the depth of thesuperjacent waters admits of the exploi-tation of the natural resources of thesaid areas.


Law of the Sea

The “exploitability criterion” of theContinental Shelf Convention, how-ever, itself created considerableuncertainty as to how far seaward acountry was entitled to exclusive rightsover the resources of the shelf.

The 1982 Convention discards thisdefinition of the continental shelf in fa-vor of expanded objective limits and amethod for establishing their perma-nent location. This change wasdesigned to accommodate coastal Stateinterests in broad control of resourcesand in supplying the certainty and sta-bility of geographic limits necessary topromote investment and avoid dis-putes.

Definition of the Continental Shelf

Article 76(1) of the Convention definesthe continental shelf as follows:

The continental shelf of a coastal Statecomprises the sea-bed and subsoil of thesubmarine areas that extend beyond itsterritorial sea throughout the naturalprolongation of its land territory to theouter edge of the continental margin, orto a distance of 200 nautical miles fromthe baselines from which the breadth ofthe territorial sea is measured wherethe outer edge of the continental margindoes not extend up to that distance.

This definition allows any coastalState, regardless of the sea floor fea-tures off its shores, to claim a 200-milecontinental shelf. This is consistentwith the provisions of articles 56 and57, which include among the rights of acoastal State within its EEZ sovereignrights for exploring and exploiting non-living resources of the sea-bed and itssubsoil.

The effect is to give coastal Stateswhose physical continental marginsextend less than 200 miles from thecoast sovereign rights over the naturalresources of the sea-bed and subsoil upto the 200-mile limit. This is of particu-lar importance in those parts of theUnited States with a narrow continen-tal margin, such as areas off the Pacificcoast, Hawaii, the Commonwealths ofPuerto Rico and of the NorthernMariana Islands, and most other is-lands comprising U.S. territories andpossessions.

Rights and Duties

The coastal State’s rights under PartVI over the natural resources of thecontinental shelf exist independent ofany action by the coastal State, and ap-ply whether or not the coastal Statehas declared an EEZ. Article 77 reiter-ates that the coastal State hassovereign rights over the continentalshelf for the purpose of exploring it andexploiting its natural resources. Thesovereign rights of the coastal Stateare balanced with provisions protectingthe freedom of navigation and the otherrights and freedoms of other Statesfrom infringement or unjustifiable in-terference by the coastal State. Underarticle 78, rights of the coastal Stateover the continental shelf do not affectthe legal status of the superjacent wa-ters or of the airspace above thosewaters.

The right of all States to lay subma-rine cables and pipelines on thecontinental shelf is specifically pro-tected by article 79, which is discussedabove in the section on the high seas.

Several articles enumerate specificrights of the coastal State regarding ac-tivities on the continental shelf. Thoserelating to artificial islands, installa-tions and structures (article 80) are thesame as the rights in article 60 already

discussed in connection with the EEZ.Drilling for all purposes (article 81),and tunnelling (article 85) are undercoastal State control. The provisionsof␣article 83 on delimitation are dis-cussed below in the section of thisCommentary on maritime boundarydelimitation.

Limits of the Continental ShelfBeyond 200 Miles (Article 76)

Definition. Paragraphs 3-7 of article 76provide a detailed formula for deter-mining the extent of the continentalshelf of a coastal State, based on thedefinition in paragraph 1, where itscontinental margin extends beyond 200miles from the coast. Although thisformula uses certain geological con-cepts as points of departure, its objectis legal not scientific. It is designed toachieve reasonable certainty consistentwith relevant interests and its effect isto place virtually all sea-bed hydrocar-bon resources under coastal Statejurisdiction.

The formula provides two alterna-tive methods for determining the outeredge of the continental margin (para-graph 4). The first is based on thethickness of sedimentary rock (rockpresumed to be of continental origin).

Figure 2. Profile of the Continental MarginReproduced by permission from University of Virginia Center for Oceans Law and Policy. United NationsConvention on the Law of the Sea 1982: A Commentary, vol. II, page 877 (Nandan & Rosenne eds. 1993).

[Graphic Not Available on CD-ROMVersion of Dispatch]


Law of the Sea

The limits of the margin are to be fixedby points at which the thickness ofsedimentary rock “is at least 1 percentof the shortest distance from such pointto the foot of the continental slope.”(Thus, if at a given point beyond 200miles from the baseline, the sedimentthickness is 3 kilometers, then thatpoint could be as much as 300 kilome-ters seaward of the foot of thecontinental slope.)

The second alternative is to fix theouter limits of the margin by pointsthat are not more than 60 miles fromthe foot of the continental slope.

These alternative methods are sub-ject to specific qualifications to ensurethat their application does not produceunintended results.

First, the continental margin doesnot include the deep ocean floor with itsocean ridges (paragraph 3).

Second, the outer limit of the conti-nental margin may not extend beyond350 miles from the coast or 100 milesfrom the 2,500 meter isobath, which-ever is further seaward (paragraph 5).This provision is neither an extensionof the 200-mile limit in paragraph 1 noran alternative definition of the conti-nental margin and its outer edgecontained in paragraph 4. It appliesonly to areas where the outer edge ofthe continental margin, determined inaccordance with either of the methodsspecified in paragraph 4, might other-wise be located seaward of both of thelimits contained in paragraph 5.

Third, notwithstanding the exist-ence of alternative maximum limits inparagraph 5, the outer limit of the con-tinental shelf shall not exceed 350 milesfrom the coast on submarine ridges,provided that this limitation on the useof either alternative limit set forth inparagraph 5 does not apply “to subma-rine elevations that are naturalcomponents of the continental margin,such as its plateaux, rises, caps, banksand spurs” (paragraph 6).

The United States understands thatfeatures such as the Chukchi plateauand its component elevations, situatedto the north of Alaska, are covered bythis exemption, and thus not subject tothe 350-mile limitation set forth inparagraph 6. Because of the potentialfor significant oil and gas reserves in

the Chukchi plateau, it is important torecall the U.S. statement made to thiseffect on April 3, 1980 during a Plenarysession of the Third United NationsConference on the Law of the Sea,which has never given rise to any con-trary interpretation. In the statement,the United States representative ex-pressed support for the provision nowset forth in article 76(6) on the under-standing that it is recognized thatfeatures such as the Chukchi plateausituated to the north of Alaska and itscomponent elevations cannot be consid-ered a ridge and are covered by the lastsentence of paragraph 6.

For the United States, the conti-nental shelf extends beyond 200 milesin a variety of areas, including notablythe Atlantic coast, the Gulf of Mexico,the Bering Sea and the Arctic Ocean.Other States with broad margins in-clude Argentina, Australia, Brazil,Canada, Iceland, India, Ireland, Mada-gascar, Mexico, New Zealand, Norway,the Russian Federation and the UnitedKingdom.

Delineation. Article 76, para-graphs 7-10, deal with the delineationof the outer limits of the continentalshelf. For reasons of simplicity andcertainty, limits beyond 200 miles areto be delineated by straight lines nolonger than 60 miles connecting fixedpoints defined by coordinates of lati-tude and longitude (paragraph 7).Coastal States with continental shelvesextending beyond 200 miles are to pro-vide information on those limits tothe␣Commission on the Limits of theContinental Shelf, an expert bodyestablished by Annex II to the Con-vention. The Commission is to makerecommendations to coastal States onthese limits. The coastal State is notbound to accept these recommenda-tions, but if it does, the limits of thecontinental shelf established by acoastal State on the basis of these rec-ommendations are final and binding onall States Parties to the Conventionand on the International Sea-bed Au-thority.

Article 76(9) requires the coastalState to deposit with the Secretary-General of the United Nations therelevant charts and data permanently

describing the outer limits of its conti-nental shelf both at and beyond 200miles. This promotes stability and pre-dictability for investors and minimizesdisputes.

Commission on the LimitsOf the Continental Shelf (Annex II)

The Commission on the Limits ofthe␣Continental Shelf is to consist of21␣members, who are to be experts ingeology, geophysics or hydrography,but may only be nationals of StatesParties. A coastal State that intendsto␣establish its continental shelf beyond200 miles is required by Annex II,article 4 to provide particulars of thoselimits to the Commission with support-ing scientific and technical data no laterthan 10 years following entry into forcefor it of the Convention. In some cases,fiscal and technical limitations maymean that this submission merely be-gins a process that the coastal Statewill wish to augment with furtherstudy and data before the Commissionmakes its recommendations.

The Commission is authorized tomake recommendations on the outerlimits of the continental shelf beyond200 miles. Such recommendations onthe submission are prepared by aseven-member subcommission and ap-proved by a two-thirds majority ofCommission members (Annex II, ar-ticles 5 and 6). If the coastal Stateagrees, the limits of the continentalshelf established by the coastal Stateon the basis of these recommendationsare final and binding (article 76(8)),thus providing stability to these claimswhich may not be contested.

In the case of disagreement by thecoastal State with the recommenda-tions of the Commission, Annex II,article 8 requires the coastal State,within a reasonable time, to make arevised or new submission to the Com-mission.

The Commission is designed to pro-vide a mechanism to prevent or reducethe potential for dispute and uncer-tainty over the precise limits of thecontinental shelf where the continentalmargin extends beyond 200 miles. Theprocess is not adversarial, and the In-ternational Sea-bed Authority plays no


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part in determining the outer limit ofthe continental shelf. Ultimate respon-sibility for delimitation lies with thecoastal State itself, subject to safe-guards against exaggerated claims.The procedures of the Commission arestructured to provide incentives to en-sure that recommendations are notmade that are likely to be rejected bythe coastal State. For example, if re-quested, the Commission may aid thecoastal State in preparing its data forsubmission.

Annex II provides for the electionof the Commission within 18 months ofthe entry into force of the Convention.Because the continental shelf of theUnited States extends beyond 200miles in areas of potential oil and gasreserves, because of its interest in con-solidating the rights of coastal Statesover their reserves, as well in discour-aging exaggerated claims to offshorejurisdiction, it is important for theUnited States to become party as earlyas possible in order to be able to par-ticipate in the selection of the membersof the Commission, as well as to nomi-nate U.S. nationals for election to theCommission.

The Commission plays no role in thequestion of delimitation between oppo-site or adjacent States.

Revenue Sharing (Article 82).Article 82(1) provides that coastalStates shall make payments or contri-butions in kind in respect of exploit-ation of the non-living resources of thecontinental shelf beyond 200 miles fromthe coastal baselines. The choice be-tween “payments” and “contributionsin kind” is left to the coastal State,which normally can be expected toelect to make payments.

No revenue sharing is required dur-ing the first five years of production atany given site (article 82(2)). Thereaf-ter, payments and contributions are tobe made with respect to all productionat that site. From the sixth to thetwelfth year of production, the pay-ment or contribution is to be made atthe rate of one per cent per year of thevalue or volume of production at thesite, increasing annually by one percent. After the twelfth year, the rateremains at seven per cent.

The requisite payments are a smallpercentage of the value of the re-sources extracted at the site. That

value is itself a small percentage of thetotal economic benefits derived by thecoastal State from offshore resourcesdevelopment. Article 82(3) exempts asmall category of developing Statesfrom making payments or contributionsin kind. Payments are to be distributedby the Authority to States Parties onthe basis of criteria for distribution setout in article 82(4). These funds aredistinct from, and should not be con-fused with, the Authority’s revenuesfrom deep mining operations underPart XI. They may not be retained orused for purposes other than distribu-tion under article 82, paragraph 4.

Revenue sharing for exploitation ofthe continental shelf beyond 200 milesfrom the coast is part of a package thatestablishes with clarity and legal cer-tainty the control of coastal States overthe full extent of their geological conti-nental margins. At this time, theUnited States is engaged in limited ex-ploration and no exploitation of itscontinental shelf beyond 200 miles fromthe coast. At the same time, theUnited States is a broad margin State,with significant resource potential inthose areas and with commercial firmsthat operate on the continental shelvesof other States. On balance, the pack-age contained in the Convention,including revenue sharing at the mod-est rate set forth in article 82, clearlyserves United States interests.

Statement of Understanding Con-cerning a Specific Method To BeUsed in Establishing the Outer Edgeof the Continental Margin (Annex IIto the Final Act). Annex II to the Fi-nal Act contains the Statement ofUnderstanding adopted by the ThirdUnited Nations Conference on the Lawof the Sea that addresses the unusualgeographic circumstances involved indetermining the outer edge of the con-tinental margin of Sri Lanka and Indiain the southern part of the Bay ofBengal.

This Statement of Understandingbears upon the interpretation and ap-plication of the Convention, but is notpart of the Convention as adopted bythe Conference and submitted for theadvice and consent of the Senate.

Domestic Legislation

The principal U.S. legislation govern-ing the U.S. continental shelf iscontained in the Submerged Lands Actof 1953, as amended, 43 U.S.C. §1301et␣seq ., and the Outer Continental ShelfLands Act of 1953, as amended, 43U.S.C. §1331 et seq.

DEEP SEA-BED MINING(Part XI and Agreement onImplementation of Part XI;Annexes III and IV)

Part XI and Annexes III and IV to theConvention (Part XI) and the Agree-ment Relating to the Implementationof Part XI of the United Nations Con-vention on the Law of the Sea of 10December 1982 (Agreement) establishthe legal regime governing explorationand exploitation of mineral resources ofthe deep sea-bed beyond coastal Statejurisdiction (sea-bed mining regime).

Flaws in Part XI caused the UnitedStates and other industrialized Statesnot to become parties to the Conven-tion. The unwillingness of industri-alized States to adhere to the Conven-tion unless its sea-bed miningprovisions were reformed led the Sec-retary-General of the United Nations,in 1990, to initiate informal consulta-tions aimed at achieving such reformand thereby promoting widespread ac-ceptance of the Convention. Theseconsultations resulted in the Agree-ment, which was adopted by the UnitedNations General Assembly on July 28,1994 by a vote of 121 (including theUnited States) in favor with 0 opposedand 7 abstentions. As of September 8,1994, 50 countries had signed theAgreement, including the UnitedStates (subject to ratification). Moreare expected to follow.

The objections of the United Statesand other industrialized States to PartXI were that:

• It established a structure for ad-ministering the sea-bed mining regimethat did not accord industrializedStates influence in the regime commen-surate with their interests;

• It incorporated economic prin-ciples inconsistent with free marketphilosophy; and


Law of the Sea

• Its specific provisions created nu-merous problems from an economic andcommercial policy perspective thatwould have impeded access by theUnited States and other industrializedcountries to the resources of the deepsea-bed beyond national jurisdiction.

The decline in commercial interestin deep sea-bed mining, due to rela-tively low metals prices over the lastdecade, created an opening for reformof Part XI. This waning interest andresulting decline in exploration activityled most States to recognize that thelarge bureaucratic structure and de-tailed provisions on commercialexploitation contained in Part XI wereunnecessary. This made possible thenegotiation of a scaled-down regime tomeet the limited needs of the present,but one capable of evolving to meetthose of the future, coupled with gen-eral principles on economic andcommercial policy that will serve as thebasis for more detailed rules when in-terest in commercial exploitationreemerges.

The waning of the Cold War andthe increasing tendency by nations inEastern Europe and the developingworld to embrace market principlesgave further impetus to the effort toreform Part XI. These factors led theStates that had historically supportedPart XI to accept the need for reform.Finally, the 60th ratification of the Con-vention on November 16, 1993, made itapparent that a failure to reform PartXI before the entry into force of theConvention on November 16, 1994,could jeopardize the future of the en-tire Convention and seriously impedefuture efforts to exploit mineral re-sources beyond national jurisdiction.

The Agreement fully meets the ob-jections of the United States and otherindustrialized States to Part XI. Thediscussion that follows describes thesea-bed mining regime of the Conven-tion and the changes that have beenmade by the Agreement. The legal re-lationship between the Convention andthe Agreement is then considered, aswell as the provisional application ofthe Agreement.

The Sea-bed Mining Regime

Scope of the Regime. The sea-bedmining regime applies to “the Area,”which is defined in article 1 of the Con-vention to mean the sea-bed and oceanfloor and subsoil thereof, beyond thelimits of national jurisdiction. TheArea is that part of the ocean floor sea-ward of coastal State jurisdiction overthe continental shelf, that is, beyondthe continental margin or beyond 200miles from the baseline from which thebreadth of the territorial sea is mea-sured where the margin does notextend that far. It comprises approxi-mately 60 percent of the sea-bed.

The sea-bed mining regime governsmineral resource activities in the Area.Article 1(3) defines “activities in theArea” as all activities of explorationfor␣or exploitation of the mineral re-sources of the Area. Those resourcesare all solid, liquid or gaseous mineralresources on or under the sea-bed.Prospecting, however, does not requireprior authorization, but may be subjectto general regulation.

Common Heritage of Mankind.Article 136 provides that the Area andits resources are the common heritageof mankind. This principle reflects thefact that the Area and its resources arebeyond the territorial jurisdiction ofany nation and are open to use by all inaccordance with commonly acceptedrules.

This principle has its roots in politi-cal and legal opinion dating back to theearliest days of the Republic. Presi-dent John Adams stated that “theoceans and its treasures are the com-mon property of all men.” With respectto the sea-bed in particular, PresidentLyndon Johnson declared that “wemust ensure that the deep seas and theocean bottoms are, and remain, thelegacy of all human beings.” TheUnited States joined in the adoption,by consensus, of the United NationsGeneral Assembly Resolution 2749(XXV)(1970), which set forth this prin-ciple. The Deep Seabed Hard MineralResources Act of 1980 (30 U.S.C. § 1401et seq.)(DSHMRA) incorporated thisprinciple into U.S. law.

For reasons of national security,the␣ United States has also supportedthis principle to ensure that the deepsea-bed is not subject to national ap-propriation, which could lead toconfrontation or impede the mobility oroperations of U.S. armed forces. Ar-ticle 137, like the DSHMRA, advancesthese interests by providing that noState shall claim or exercise sover-eignty over any part of the Area or itsresources or recognize such claims byothers.

In furtherance of this principle,article 141 declares the Area to be opento use by all States. Only mining activi-ties are subject to regulation by theInternational Sea-bed Authority (dis-cussed below). Other activities on thedeep sea-bed, including military activi-ties, telecommunications and marinescientific research, may be conductedfreely in accordance with principles ofthe Convention pertaining to the highseas, including the duty to have reason-able regard to other uses.

Part XI, as modified by the Agree-ment, gives specific meaning to thecommon heritage principle as it appliesto the mineral resources of the sea-bedbeyond coastal State jurisdiction. It isworth noting that the Agreement, byrestructuring the sea-bed mining re-gime along free market lines, endorsesthe consistent view of the UnitedStates that the common heritage prin-ciple fully comports with privateeconomic activity in accordance withmarket principles.

Administration of the Regime

International Sea-bed Authority. Toadminister the sea-bed mining regime,articles 156-7 of the Convention estab-lish a new international organization,the International Sea-bed Authority(Authority). Article 158 establishesthe␣three principal organs of the Au-thority: the Assembly, the Council andthe Secretariat. In addition, as subsid-iary organs to the Council, article 163creates a Legal and Technical Com-mission. Section 9 of the Annex to theAgreement adds a Finance Committee.


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Article 163 of the Convention alsoprovides for an Economic PlanningCommission. However, section 1(4) ofthe Annex to the Agreement conditionsthe establishment of the Commissionon a future decision by the Council and,for the time being, delegates its func-tions to the Legal and TechnicalCommission.

With the exception of the Secre-tariat, all of these organs consist ofrepresentatives whose salaries and ex-penses are paid by their own States.

Assembly. The Assembly pro-vided for in articles 159-160 of theConvention is a plenary body of allmembers of the Authority. Its mainspecific functions are to elect the Coun-cil, to elect a Secretary-General, toassess contributions, to give final ap-proval to rules and regulations and tothe budget, and to decide on the shar-ing of revenues to the Authority frommining.

Because of the size of the Assem-bly, and because its composition andvoting rules do not necessarily ensureadequate protection for all relevant in-terests, the Convention and theAgreement provide that the importantdecision-making functions of the As-sembly are exercised concurrentlywith, or are based on the recommenda-tions of, the Council or the FinanceCommittee, or both.

Council. The Council is the execu-tive body of the Authority and as suchis primarily responsible for the admin-istration of the sea-bed mining regime.Article 161 provides that the Council isto be composed of 36 members, fourfrom the major consumers of minerals,four from the largest investors in deepsea-bed mining, four from major land-based producers of minerals, six torepresent various interests among de-veloping countries, and the remaining18 to achieve overall equitable geo-graphic distribution.

The primary functions of the Coun-cil, outlined in article 161, are tosupervise the implementation of thesea-bed mining regime, to approveplans of work for exploration or exploi-tation of mineral resources, to overseecompliance with approved plans ofwork, to adopt and provisionally applyrules and regulations pending final ap-

proval by the Assembly, to nominatecandidates for Secretary-General of theAuthority, and to make recommenda-tions to the Assembly on subjects uponwhich the Assembly must make deci-sions.

Part XI requires the Assembly tomake many of its decisions on the basisof recommendations from the Council.Section 3(4) of the Annex to the Agree-ment expands this requirement tocover virtually all decisions of the As-sembly and further provides that, if theAssembly disagrees with a Council rec-ommendation, it must return the issueto the Council for further consider-ation.

Legal and Technical Commis-sion. The Legal and TechnicalCommission is a fifteen-member bodyof technical experts elected by theCouncil. Under article 165, its primaryfunctions are to review and make rec-ommendations to the Council on theapproval of plans of work, to preparedraft rules and regulations, to directthe supervision of activities pursuantto␣ approved plans of work, to prepareenvironmental assessments and recom-mendations on protection of the marineenvironment and to monitor the envi-ronmental impacts of activities in theArea.

Economic Planning Commission.Like the Legal and Technical Commis-sion, the Economic Planning Commis-sion was to be a fifteen-member techni-cal body. As noted above, the Eco-nomic Planning Commission will not beestablished in the near term; its func-tions will be performed by the Legaland Technical Commission. Thosefunctions, defined in article 164, aremainly to review trends and factors af-fecting supply, demand and prices forminerals derived from the Area and tomake recommendations on assistanceto developing States that are shown tobe adversely affected by activities inthe Area (see discussion of the assis-tance fund below). The fact that suchquestions will not arise until commer-cial mining takes place made itreasonable to defer the Commission’sestablishment.

Finance Committee. In responseto proposals by the United States andother industrialized States, section 9of␣the Annex to the Agreement estab-lishes a Finance Committee. Section9(3) requires the Committee to includethe five largest contributors to thebudget until such time that the Author-ity generates sufficient funds for itsadministrative expenses by meansother than assessed contributions.Section 3(7) provides that decisions ofthe Council and the Assembly havingfinancial or budgetary implicationsshall be based on recommendations ofthe Finance Committee, which must beadopted by consensus.

The Functional-EvolutionaryApproach

One of the major themes in the negotia-tions that led up to the Agreement wasthe need for the Authority to be cost-effective. While this was a primeconcern of industrialized States, it alsohad broad support among developingcountries. Sections 1(2) and (3) of theAnnex to the Agreement accordinglystipulate that the establishment of theAuthority and its organs, and the fre-quency, duration and scheduling ofmeetings, are to be governed by the ob-jective of minimizing costs whileensuring that the Authority evolves inkeeping with the functions it must per-form.

Thus, as noted above, the EconomicPlanning Commission will not be estab-lished until a future decision of theCouncil, or the approval of a plan ofwork for commercial exploitation. Inaddition, sections 1(4) and (5) of the An-nex to the Agreement identify thespecific early functions on which theAuthority should concentrate prior tocommercial mining. These functionslargely relate to approving plans ofwork for existing mining claims, moni-toring compliance, keeping abreast oftrends in the mining industry andmetal markets, adopting necessaryrules and regulations relevant to vari-ous stages of mining as interestemerges, promoting marine scientificresearch, and monitoring scientific and


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technical developments (particularlyrelated to protection of the environ-ment).

The evolutionary approach also un-derlies the decision to postpone theelaboration of very specific rules togovern sea-bed mining until the inter-national community better understandsthe nature of mining activities likely tooccur on a commercial scale. Instead,the Agreement establishes a series ofbroad reforms based on free marketprinciples that will serve as the basisfor more specific rules at an appropri-ate time. Significant improvements tothe decision-making structure of theAuthority, discussed below, made itpossible for the United States andother industrialized States to have con-fidence that such rules and regulationswill protect their interests.

Acquisition of Mining Rights

Article 153 and Annex III to the Con-vention govern the system foracquiring mining rights.

Prospecting. Article 2 of AnnexIII to the Convention does not requireprior approval for prospecting. How-ever, prospectors must submit awritten undertaking to comply with theConvention. Prospecting, which maybe conducted simultaneously by morethan one prospector, does not conferany rights with respect to the re-sources.

Exploration and Exploitation.Article 153 and article 3 of Annex IIIprovide that exploration and exploita-tion activities may be conducted byStates Parties or entities sponsored byStates Parties. The applicant submits awritten plan of work that upon ap-proval will take the form of a contractbetween the applicant and the Author-ity.

Under article 4 of Annex III, enti-ties shall be qualified if they meetstandards for nationality, control andsponsorship set forth in article153(2)(b), as well as other general stan-dards related to technical and financialcapabilities and to their performanceunder previous contracts.

Protection of the Marine Environ-ment. Article 145 and Annex III,article 17 of the Convention provide forthe adoption of rules, regulations andprocedures by the Council to ensure ef-fective protection of the marineenvironment from harmful effects ofdeep sea-bed mining activity.

Article 162 also authorizes theCouncil to disapprove areas for exploi-tation where there is a risk of seriousharm from mining activities alreadyunderway.

Section 1(7) of the Annex to theAgreement strengthens these require-ments by requiring that all applicationsfor approval of plans of work shall beaccompanied by an assessment of thepotential environmental impacts of theproposed activities and a program foroceanographic and baseline environ-mental studies. Section 1(5)(g) of theAnnex to the Agreement also requiresthe Authority to adopt rules, regula-tions and procedures on marineenvironmental protection as part of itsearly functions prior to the approval ofthe first plan of work for exploitation.

Application Fees. Article 13, para-graph 2 of Annex III to the Conventionprovides for an application fee ofU.S.$500,000. Section 8(3) of the An-nex to the Agreement requires insteada U.S.$250,000 fee for each phase (i.e.,exploration or exploitation). If the feeexceeds the cost incurred in processingthe application, the Authority is re-quired to refund the difference to theapplicant.

Approval of Applications. TheAuthority shall review and approveplans of work on a first-come first-served basis. Special decision-makingprocedures apply to the approval ofplans of work. Under article 165(2), theLegal and Technical Commission shallreview applications and make recom-mendations to the Council on theapproval of plans of work. The Com-mission is required to base itsrecommendations on whether the appli-cant meets the financial and technicalqualifications mentioned above,whether its proposed plan of work oth-erwise meets the rules and regulationsadopted by the Council, and whetherthe applicant has included undertak-ings to comply with the Convention and

with rules, regulation and proceduresadopted pursuant thereto. Decisionsby the Commission are taken by asimple majority of its fifteen members.

If the Legal and Technical Commis-sion recommends approval of a plan ofwork, section 3(1) of the Annex to theAgreement requires the Council to ap-prove the plan of work within 60 days,unless the Council decides otherwise bya two-thirds majority of its members,including a majority of the memberspresent and voting in each of its cham-bers. The effects of this provision areto require the Council to act in a timelymanner and to allow two members ofeither the consumer or investor cham-bers of the Council to ensure that sucha plan of work is approved. If the Com-mission recommends against approvalof an application, the Council can nev-ertheless approve the application basedon its normal decision-making proce-dures for issues of substance.

Security of Tenure—Priority ofRight . Section 1(9) of the Agreementrequires the Authority to approveplans of work for exploration for aperiod of 15 years. At the end of thisperiod, an applicant must apply forapproval of a plan of work for exploita-tion. If, however, the applicant candemonstrate that circumstances be-yond its control prevent completion ofthe work necessary to move to exploi-tation, or that commercial circum-stances do not justify proceeding toexploitation, the Authority must ex-tend the approved plan of work forexploration in additional five-yearincrements at the request of the con-tractor.

Under article 16 of Annex III to theConvention, approved plans of workshall accord the contractor exclusiverights in the area covered by the planof work in respect of a specific categoryof resources. Article 10 of Annex IIIprovides that an approved plan of workfor exploration confers a priority ofright on the applicant for approval of aplan of work for exploitation in thesame area. The priority may be with-drawn for unsatisfactory performance.However, section 1(13) of the Annex tothe Agreement requires unsatisfactory


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performance to be judged on the basisof a failure to comply with the terms ofan approved plan of work notwith-standing written warnings by theAuthority.

Article 19 of Annex III providesthat contracts cannot be revised exceptby consent of both parties (i.e., the ap-plicant and the Authority).

Applications by Pioneer Inves-tors. A special procedure exists forgrandfathering into the sea-bed miningregime the mining sites of enterprisesthat have conducted substantial activi-ties prior to the entry into force of theConvention. This procedure applies toentities from Japan, the Russian Fed-eration, France, China, India, EasternEurope and South Korea that have reg-istered sites with the PreparatoryCommission for the International Sea-bed Authority and for the InternationalTribunal for the Law of the Sea(Prepcom) in accordance with Resolu-tion II of the Final Act of the ThirdUnited Nations Conference on the Lawof the Sea. The same procedure alsoapplies to the sites of the mining con-sortia that have been licensed underthe sea-bed mining laws of the UnitedStates, Germany or the United King-dom.

Section 1(6)(a)(ii) of the Annex tothe Agreement allows entities thathave already registered sites with thePrepcom 36 months to file for the ap-proval of a plan of work under theConvention without jeopardy to theirrights to the mine site. When they filean application, and accompany it withthe certificate of compliance recentlyissued by the Prepcom, it will be ap-proved by the Authority, provided thatit conforms to the rules, regulationsand procedures of the Authority.

With regard to consortia licensedby the United States, Germany orthe␣United Kingdom, section 1(6)(a)(i)of the Annex to the Agreement pro-vides that they will be considered tohave met the financial and technicalqualifications necessary for approval ofa plan of work if their sponsoring Statecertifies that they have expendedU.S.$30,000,000 in research and explo-ration activities and have expended noless than 10 percent of that amount inthe location, survey and evaluation of

the area referred to in the plan of work.All three of the consortia with currentexploration permits issued pursuant tothe DSHMRA meet this standard. Inaddition, section 1(6)(a)(iii) providesthat, in keeping with the principle ofnon-discrimination, the contracts withthese consortia “shall include arrange-ments which shall be similar to and noless favorable than those agreed with”any pioneer investor registered by thePrepcom.

Reserved Areas. Applicants forexploration rights under the Conven-tion must set aside reserved areas forpossible future use by the Enterprise(an arm of the Authority that, undercertain circumstances, may undertakemining activity in its own right). Ar-ticle 8 of Annex III to the Conventionrequires that each application cover anarea sufficiently large and of sufficientvalue to allow for two mining opera-tions. The applicant is responsible fordividing the area into two parts ofequal estimated value. The Authoritymust then designate one of the areas tobe reserved for future use by the En-terprise and the other to be reservedfor the applicant.

Section 2(5) of the Annex to theAgreement modifies articles 8 and 9 ofAnnex III to the Convention to takeinto account the fact that the Enter-prise, if it begins to undertake miningactivity, will operate through joint ven-tures and to allow an applicant toparticipate in the exploration and de-velopment of a reserved area that itprospected. Under section 2(5), theminer that contributed the area has thefirst option to enter into a joint venturewith the Enterprise for the explorationand exploitation of that area. Further-more, if the Enterprise does not submitan application for approval of a planof␣work for the reserved area within15␣years of the date on which that areawas reserved, or the date on whichthe␣Enterprise becomes operational,whichever is later, the miner that con-tributed the area can apply to exploit itif the miner makes a good faith offer toinclude the Enterprise as a joint ven-ture partner.

The pioneer investors that regis-tered their claims with the Prepcomcomplied with this obligation at the

time of registration. However, theareas registered by some pioneer in-vestors (i.e., Japan, France and theRussian Federation) were not largeenough to provide a reserved area.After some negotiation, the Prepcomallowed these pioneer investors collec-tively to reserve a single site and toself-select a major portion of the areathey retained. If U.S.-licensed consor-tia confronted practical problems inregistering claims with the Authority,they would be entitled to “no less fa-vorable treatment” under section1(6)(a)(iii) of the Annex to the Agree-ment.

Compliance . Article 153(4) of theConvention requires the Authority toexercise such control as is necessary toensure compliance with the Conven-tion, rules and regulations adopted bythe Council, and approved plans ofwork. In addition, article 4(4) of AnnexIII and article 139 provide that StatesParties are also responsible for ensur-ing compliance by the nationals orenterprises they sponsor. However, aState Party will not be liable for dam-age caused if it has taken reasonablemeasures within the framework of itslegal system to ensure compliance bypersons or entities under its jurisdic-tion.

Decision-making

As noted above, decision-making wasone of the key areas of concern for theUnited States and other industrializedStates in the reform of Part XI. In par-ticular, the United States objected tothe absence of a guaranteed seat in the36-member Council, to the possibilitythat the Assembly could dominate deci-sions within the Authority (discussedabove) and to the fact that industrial-ized countries did not have influence onthe Council commensurate with theirinterests.

U.S. Seat. The United States isnow guaranteed a seat on the Councilin perpetuity. Section 3(15) of the An-nex to the Agreement provides thatthe consumer chamber in the Councilshall include the State that, upon theentry into force of the Convention, hasthe largest economy in terms of grossdomestic product.


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Decisions by the Council.Because the requirements for repre-sentation of developing countries andfor equitable geographic distributionset forth in article 161 of the Conven-tion would likely produce a majority ofdeveloping States on the Council, theUnited States and other industrializedStates sought to change the votingrules to ensure that the United States,and others with special interests thatwould be affected by decisions of theAuthority, would have special votingrights in the Council. Section 3(5) ofthe Annex to the Agreement providesthat, when consensus cannot bereached in the Council, decisions onquestions of substance shall be takenby a two-thirds majority of the mem-bers present and voting, provided thatthe decision is not opposed by a major-ity in any of the four-memberconsumer, investor or producer cham-bers in the Council.

This chambered voting arrange-ment will ensure that the UnitedStates and two other consumers, orthree investors or producers acting inconcert, can block substantive decisionsin the Council. The only exceptions tothis rule are for four substantive deci-sions that, under article 161(8)(d) of theConvention, must be made by consen-sus. Thus, consensus is required forany decision to provide protection todeveloping States that are land-basedproducers of minerals from adverseeffects from sea-bed mining; any deci-sion to recommend to the Assemblyrules and regulations on the sharing offinancial benefits from sea-bed mining(revenue sharing); any decision toadopt and apply provisionally rules,regulations and procedures implement-ing the sea-bed mining regime oramendments thereto; and any decisionto adopt amendments to the sea-bedmining regime. The requirement thatthese issues be made by consensus ineffect gives the United States a vetowith respect to them.

Developing States argued that thesix-member developing country cat-egory in the Council should also betreated as a chamber for voting pur-poses. The United States and otherindustrialized States opposed this onthe grounds that developing States in

the Council already were assured ofsufficient numbers to protect their in-terests. Sections 3(9) and 3(15)(d) ofthe Annex to the Agreement representa compromise on this issue. Thoseprovisions combine the six-memberdeveloping State category with thedeveloping States elected on the basisof ensuring overall equitable geo-graphic distribution to serve as achamber for voting purposes. Thiswould allow 11 developing States act-ing in concert to block a decision,compared to the 13 votes needed toblock an overall two-thirds majority inthe Council.

Composition of the Council. Ar-ticle 160(12)(a) of the Conventionauthorizes the Assembly to elect themembers of the Council. Section 3(10)of the Annex to the Agreement refinesthis by providing for all States Partiesthat meet the criteria of a specific cat-egory (i.e., consumers, investors andproducers) to nominate their represen-tatives in those categories. Thisrefinement ensures that each categoryof States Parties will be represented inthe Council by members of its ownchoosing.

Rulemaking: General. Article160(f)(ii) authorizes the Assembly toapprove rules, regulations and proce-dures of the Authority governing theadministration of the sea-bed miningregime that have been adopted by theCouncil. Article 162(2)(o)(ii) providesthat the Council shall adopt and provi-sionally apply such rules, regulationsand procedures pending their approvalby the Assembly. As noted above, theCouncil decision to adopt and provision-ally apply rules, regulations andprocedures must be taken by consen-sus. The result is that no implementingrules can be adopted or applied withoutthe consent of the United States.

Section 3(4) of the Annex to theAgreement further protects U.S. inter-ests by requiring that decisions of theAssembly on any matter for which theCouncil also has competence, or any ad-ministrative, budgetary or financialmatter, must be based on recommenda-tions of the Council. If the Assemblydisagrees with the Council, it must

send the recommendations back for fur-ther consideration in light of the viewsof the Assembly. In the meantime,rules adopted by the Council continueto apply provisionally pending their fi-nal approval by the Assembly.

Commercial Exploitation Rules.As noted above, the Agreement setsforth general market-oriented prin-ciples to provide the basis for futurerulemaking when commercial produc-tion appears likely. The Agreementprovides a special procedure for adopt-ing such rules to create effectiveincentives for their development in atimely fashion so that delay in theiradoption would not impede commercialoperations.

Section 1(15) of the Annex to theAgreement sets forth two means bywhich the process of preparing the nec-essary rules can be initiated.Paragraph 15(a) provides that theCouncil can initiate the process when itdetermines that commercial exploita-tion is␣imminent or at the request of aState whose national intends to applyfor approval of a plan of work for ex-ploitation. Paragraph 15(b) requiresthe Council to complete its work on therules within two years of receivingsuch a request. Paragraph 15(c)provides that, if such work is not com-pleted within this timeframe and anapplication for approval of a plan ofwork for exploitation is pending, theCouncil must consider and provision-ally approve the proposed plan of workbased on the Convention and any rulesadopted provisionally, as well as theprinciple of non-discrimination.

Review Conference. The UnitedStates and other industrialized Statesstrongly objected to the Review Con-ference provided for in article 155 ofthe Convention. The Review Confer-ence would have convened 15 yearsafter the commencement of commercialproduction to reevaluate Part XI andto propose amendments to the Conven-tion. Such amendments could haveentered into force for all States ifadopted and ratified by three-quartersof the States Parties. This would haveallowed the possibility that the UnitedStates could be bound by amendmentsthat it had opposed.


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Production LImitations. Article151 of the Convention would have es-tablished an elaborate system ofcontrols on production of minerals fromthe deep sea-bed, ostensibly to protectland-based producers of minerals fromadverse impacts due to competitionfrom deep sea-bed mining. The con-trols were based on a formula forestimating the growth in the demandfor minerals and then limiting sea-bedmining to a percentage of that growth,by requiring miners to obtain produc-tion authorizations from the Authority.In addition, article 151 would have al-lowed the Authority to participate incommodity organizations with theobjective of promoting growth, effi-ciency and stability of markets. Thiscould have included commodity agree-ments with production controls, quotasor other economic provisions for inter-vening in commodity markets.

In response to the objections of theUnited States and other industrializedStates, section 6 of the Annex to theAgreement eliminates all such provi-sions. In their place, section 6(1) basesthe production policy of the Authorityon sound commercial principles. It pro-vides that the provisions of the GeneralAgreement on Tariffs and Trade (oragreements that replace the GATT)will apply to sea-bed mining beyond na-tional jurisdiction. In particular, therecan be no subsidization of sea-bed min-ing beyond national jurisdiction thatwould not be permitted under GATTrules, and no discrimination betweenminerals produced from the deep sea-bed and minerals produced from othersources.

Disputes arising from allegationsthat a State Party is not complyingwith the relevant GATT provisionswould be subject to GATT disputesettlement procedures where bothStates Parties are party to the relevantGATT arrangements. If one or moreparties to the dispute are not party tothe relevant GATT arrangements, dis-putes would be referred to the disputesettlement procedures under the Con-vention (see discussion of disputesettlement below).

The transition to the World TradeOrganization from the present GATTmay require clarification of these provi-sions. For example, issues may arise

concerning which agreement applieswhen some States Parties to the Con-vention remain party to the formerGATT arrangements and others be-come party to the new arrangements.However, with the timing of the re-emergence of interest in commercialproduction from the deep sea-bed un-certain, it is possible that the questionwill resolve itself before issues arise inthis context.

Economic Assistance. In negoti-ating the Agreement, land-basedproducers of minerals that are found onthe sea-bed agreed to eliminate produc-tion controls in exchange for theestablishment of an economic assis-tance fund.

Article 151(10) of the Conventionempowers the Authority to establish a“system of compensation or take othermeasures of economic adjustment as-sistance” with the objective of assisting“developing countries which suffer se-rious adverse effects on their exportearnings or economies resulting from areduction in the price of an affectedmineral or in the volume of exports ofthat mineral, to the extent that such re-duction is caused” by deep sea-bedmining.

Section 7 of the Annex to theAgreement contemplates that this pro-vision will be implemented through theestablishment of an economic assis-tance fund. However, such a fund mayonly be established when the revenuesof the Authority exceed those neces-sary to cover its administrativeexpenses (i.e., when revenues frommining are sufficient to avoid the needfor assessed contributions from mem-bers for administrative expenses and asurplus exists). Only revenues frommining and voluntary contributionsmay be used to finance the fund. TheUnited States veto in the FinanceCommittee and its influence in theCouncil are adequate to insure thatsuch a fund is not established or oper-ated in a manner contrary to U.S.interests.

Financial Terms of Contracts.Article 13 of Annex III to the Conven-tion established detailed financialarrangements that were to becomepart of the contracts between the

Section 4 of the Annex to theAgreement eliminates the Review Con-ference. Any reconsideration of thesea-bed mining regime is subject to thenormal procedures for adopting amend-ments to the sea-bed mining provisionsof the Convention contained in articles314-316. Article 314 requires thatamendments to the sea-bed miningregime be adopted by the Assemblyand the Council of the Authority.Article 16l(8)(d) requires that amend-ments be adopted in the Council byconsensus, thus ensuring the UnitedStates a permanent veto over amend-ments. Amendments to the sea-bedmining regime adopted by this proce-dure enter into force when ratified bythree-quarters of the States Parties(article 316(5)).

Economic and CommercialPolicy Concerns

As discussed above, the United Statesand other industrialized States ob-jected to many features of Part XIon␣economic and commercial policygrounds. The United States objected,for example, to the provisions of PartXI on production limitations, financialterms of contracts, technology transferand the Enterprise because of thenegative effect they would have had oncommercial exploitation of sea-bed min-eral resources.

While there developed a generalwillingness on the part of other Statesto meet these objections, the effort toreform Part XI had to address the diffi-culty of predicting when interest incommercial exploitation will reemerge,which specific resources will be of in-terest at that time, and what economicenvironment will prevail. The Agree-ment resolves these difficulties byadopting general principles designed torestructure the sea-bed mining regimealong free market lines. The StatesParties will implement these generalprinciples through the Authority as theneed arises, in accordance with the newdecision-making rules discussed above.

The Agreement also contains spe-cific provisions to meet certain specificobjections. The substantive solutionsto the individual issues of concern arenext discussed.


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Authority and the miner and thatwould have served as the means forthe␣Authority to recover economicrents from the development of mineralresources of the sea-bed beyond na-tional jurisdiction.

Among these arrangements were aU.S.$1,000,000 annual fee from the dateof approval of a plan of work for explo-ration. Upon the commencement ofcommercial production, the minerwould have had to elect between thepayment of a production charge or acombination of a production charge anda share of net proceeds from mining.The rates of both were graduated,starting out lower in the early yearsand increasing in the latter years ofproduction, and were also adjustable,based on profitability.

These arrangements were ex-tremely complex and relied upon veryspecific assumptions about the natureand profitability of a sea-bed miningoperation based on a specific economicmodel. The United States and other in-dustrialized States objected that thesearrangements were both excessive andunduly rigid, given the uncertaintiesregarding the timing and nature of fu-ture mining activities. In particular,the United States objected to charginga U.S.$1,000,000 annual fee during theexploration stage, when miners wouldhave no income stream.

In response to these objections, sec-tion 8 of the Annex to the Agreementdispenses with these detailed provi-sions and provides that a system offinancial arrangements shall be estab-lished in the future based on certainbasic principles. Specifically, it re-quires that the system be fair to theAuthority and the miner, that therates␣be comparable to those prevailingwith respect to land-based mining toavoid competitive advantages or disad-vantages, that the system not becomplicated and not impose major ad-ministrative costs on the Authority orthe miner, and that consideration begiven to a royalty or a combination roy-alty and profit-sharing system.

The U.S.$1,000,000 annual feecharged during the exploration stage iseliminated. The Council will fix theamount of an annual fee during com-mercial production, which can be

credited against payments due underthe royalty or profit sharing arrange-ments. Thus, the effect is to establish aminimum annual fee during commercialproduction.

Technology Transfer. The UnitedStates and other industrialized coun-tries objected to the mandatorytechnology transfer provisions con-tained in article 5 of Annex III to theConvention. These provisions man-dated the inclusion in the miners’contract of an undertaking on the partof the miner to transfer sea-bed miningtechnology to the Enterprise or devel-oping countries if they were unable toobtain the technology on the open mar-ket. If transfer were not assured, theminer could not use such technology inits own mining activities.

Section 5 of the Annex to theAgreement eliminates these compul-sory transfer provisions. In verygeneral terms, article 144 of the Con-vention encourages the promotion ofthe transfer of technology and scientificknowledge related to deep sea-bed min-ing, including programs to facilitateaccess under fair and reasonable termsand conditions and to promote training.Section 5 of the Annex to the Agree-ment provides that the Enterprise anddeveloping countries wishing to acquiresea-bed mining technology should do soon the open market or through jointventures. If they are unsuccessful inobtaining such technology, the Author-ity may request miners and theirsponsoring States to cooperate with itin facilitating access to technology “onfair and reasonable commercial termsand conditions, consistent with the ef-fective protection of intellectualproperty rights.”

The Enterprise: Background.Article 170 of the Convention estab-lishes an operating arm of the Author-ity called the Enterprise. Article153(2)(a) provides that the Enterprise,as well as other commercial enter-prises, may apply to the Authority formining rights.

The origins of the Enterprise dateback to the early days of the ThirdUnited Nations Conference on theLaw␣of the Sea, when certain develop-ing States sought a regime where allmining would be conducted directlyby␣the Authority, with private miners

relegated to the role of service contrac-tors. Industrialized States favored asystem of mining by States and privatecompanies licensed by the Authority.In 1976, Secretary of State HenryKissinger proposed the compromisethat came to be known as the “parallelsystem” in which the Authority,through the Enterprise, as well asStates and private companies, wouldboth engage in mining activities. How-ever, the negotiations that followed leftthe Enterprise in a privileged positionthat could have made it difficult for pri-vate entities to compete.

Throughout the effort to reformPart XI, the United States sought toeliminate the Enterprise by pointing tothe privatization programs underwayin many parts of the world. Neverthe-less, among many developing States, inparticular the least developed coun-tries, where economic reform had notyet begun to take root, strong resis-tance persisted. Largely because theEnterprise symbolized the aspirationsof developing States to have a means toparticipate in sea-bed mining, retentionof the Enterprise remained a bedrockposition of the developing States as awhole.

The Agreement retains the Enter-prise but renders it harmless byaddressing the specific problems andensuring that the Enterprise could onlybecome operational following a decisionby the Council, and only if the Councilconcludes that the operations of theEnterprise would conform to soundcommercial principles.

Problems. The three main prob-lems posed by the Enterprise werethat its first operation would be fi-nanced by loans and loan guaranteesfrom the industrialized States, that itwould benefit from numerous provi-sions discriminating in its favorvis-a-vis other commercial entities, andthat other commercial entities would beobliged to provide it with technology(discussed above).

Solutions. Responding to theseconcerns, section 2(2) of the Annex tothe Agreement provides that the En-terprise will conduct its first operationsthrough joint ventures with other com-mercial enterprises. Section 2(3)eliminates the obligation for States


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Parties to finance its operations. Sec-tion 2(4) subjects the Enterprise to thesame obligations as other miners andmodifies article 153(3) of the Conven-tion to ensure that any plan of worksubmitted by the Enterprise must be inthe form of a contract like that of anyother miner and thus be subject to therequirements applicable to any othercontractor. Finally, section 5 of the An-nex to the Agreement removes thecompulsory technology transfer provi-sions.

Council Decision. Section 2(2) ofthe Annex to the Agreement containsone of the most significant limitationson the Enterprise by preventing theEnterprise from operating as an inde-pendent entity until the Council issuesa directive to that effect. In the in-terim, the secretariat of the Authority,subject to the control of the Council,will perform any necessary functions toprepare for the possible future opera-tion of the Enterprise.

The Council must take up the issueof the independent operation of theEnterprise when an application by an-other commercial entity is approved forcommercial exploitation, or when a pro-posal is made by another commercialentity to form a joint venture with theEnterprise. The decision by the Coun-cil must be based on a conclusion thatoperations by the Enterprise would ac-cord with sound commercial principles.If such a decision were ever made, theEnterprise would then have to proceedthrough the normal process of applyingfor mining rights.

The enhanced role of the UnitedStates and other industrialized coun-tries in the Council will allow them toensure that, if a decision is ever madeto make the Enterprise operational, itwill only be on a basis that the UnitedStates would find acceptable. Forexample, if sea-bed mining ever gener-ates sufficient funds through royaltiesto service the budget of the Authorityand still leave a surplus, the Authoritymight decide to use some of the fundsto invest in a joint venture with othercommercial entities. It is possible thatsuch an equity position in a sea-bedmining operation could be structured soas to pose no serious problems from the

standpoint of United States interests.It is equally possible that, by the timecommercial mining takes place, devel-oping States as well as industrializedcountries will recognize the Enterpriseas a relic of the past and not seek tomake it operational.

Budget of the Authority. Article173 of the Convention provides that theadministrative budget of the Authoritywill be met by assessed contributionsmade by States Parties to the Conven-tion until the time that other funds (i.e.,revenues from mining or voluntary con-tributions) are adequate to meet theadministrative expenses of the Author-ity. Section 1(14) of the Annex to theAgreement modifies these provisionsby requiring that, until the Agreemententers into force, the administrativeexpenses of the Authority will be metthrough the budget of the United Na-tions.

The decision to draw on the UnitedNations budget was based on the needto provide for provisional application ofthe Agreement prior to its entry intoforce (see below), in order to allowStates that had not yet become party tothe Convention, such as the UnitedStates, to participate in the Authority.States that had already ratified or ac-ceded to the Convention insisted thatthose States which participated in theAuthority only through their provi-sional application of the Agreementshould also support the budget. Tem-porary funding through the UnitedNations provided a convenient meansto accomplish this.

At the last session of the Prepcom(August 1994), the United Statesachieved a budget recommendation tothe United Nations General Assemblythat was approximately 30 percentlower than Secretariat estimates for1995. It assumes a staff for the Author-ity of six professionals and 17 supportpersonnel. The total budget is esti-mated at $2,489,600 and will notnecessitate an increase in the overallUnited Nations budget for the 1994-95biennium, as it will largely be offset bysavings from the discontinuation of ac-tivities in support of the Prepcom.

Privileges and Immunities

Articles 177-183 of the Convention,as␣well as article 13 of Annex IV tothe␣Convention, require States Partiesto provide certain privileges and immu-nities to the Authority and to certainpersons connected to the Authority.In␣the near term, due to the limitedinterest in deep sea-bed mining andthe␣attendant need for only low-levelactivity by the Authority, the foresee-able activities of the Authority thatmay occur in the United States whichwould implicate these privileges andimmunities will take place at UnitedNations Headquarters in New␣York,where representatives of the Author-ity’s member States and members ofthe Authority’s secretariat may travelfor meetings.

With respect to such activities, theUnited States is already obligated toprovide all relevant privileges and im-munities pursuant to existingagreements in force for the UnitedStates, including the Agreement be-tween the United Nations and theUnited States regarding the headquar-ters of the United Nations, as amended(TIAS 1676, 5961, 6176, 6750, 9955; 61Stat(4) 3416; 17 UST 74, 17 UST 2319;20 UST 2810, 32 UST 4414; 11 UNTS11, 554 UNTS 308, 581 UNTS 362; 687UNTS 408) and the Convention on thePrivileges and Immunities of theUnited Nations (TIAS 6900; 21 UST1418; 1 UNTS 16).

The Agreement and ItsRelationship to the Convention

The Agreement revises, in a legallybinding manner, the objectionable pro-visions of Part XI. As discussed above,these revisions satisfactorily addressthe objections raised by the UnitedStates and other industrialized coun-tries to Part XI.

The Agreement contains two parts,a main body and an Annex. All of thesubstantive revisions to Part XI appearin the Annex, while the main body ofthe Agreement establishes the legal re-lationship between the Convention andthe Agreement, provides options bywhich States may consent to be bound


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by the Agreement, and sets forth theterms of entry into force of the Agree-ment and of its provisional application,and addresses certain subsidiary is-sues.

Article 1 of the Agreement obli-gates States Parties to undertake toimplement Part XI in accordance withthe Agreement. Article 2 states thatthe provisions of the Convention andthose of the Agreement are to be inter-preted and applied together as onesingle instrument; in the event of anyinconsistency, the provisions of theAgreement prevail. These articlesmake the original provisions of Part XIlegally subject to those of the Agree-ment.

Under article 3, the Agreement be-came open for signature by States andcertain other entities (including the Eu-ropean Union) during a twelve-monthperiod beginning on the date on whichthe United Nations General Assemblyadopted the Agreement, i.e., July 28,1994. Article 4(1) and (2) seek to en-sure that States may thereafter onlybecome party to the Agreement andthe Convention together.

Article 4(3) allows States to chooseamong several alternative proceduresby which to express their consent to bebound by the Agreement. The UnitedStates signed the Agreement subject toratification, pursuant to article 4(3)(b).

Article 4(3)(c), together with article5, provide another mechanism by whichthose States that have already ratifiedor acceded to the Convention (a cat-egory that does not include the UnitedStates) may become party to theAgreement. Any such State may signthe Agreement and become party to itwithout further action unless that Stateotherwise notifies the Depositarywithin twelve months of the Agree-ment’s adoption. In the event of suchnotification, the notifying State is eli-gible to accede to the Agreement underarticle 4(3)(d).

This simplified procedure resolvedan overarching difficulty in the effortto␣revise Part XI. During negotiationof the Agreement, those States, includ-ing the United States, that had notratified the Convention because of ob-jections to Part XI insisted on the needfor a legally binding instrument

to␣revise Part XI. Many of thoseStates that had ratified the Conventioninsisted that they would not return totheir parliaments and seek formal ap-proval of a new instrument that wouldrevise Part XI.

The simplified procedure satisfiesboth objectives in a legally sound man-ner. Under customary internationallaw, as reflected in article 12(1)(a) ofthe Vienna Convention on the Law ofTreaties (92nd Congress, 1st Session,Senate Executive “L”), “the consentof␣a State to be bound by a treaty isexpressed by signature of its represen-tative when . . . the treaty providesthat signature should have that effect.”In the case of the Agreement, article4(3)(c) and article 5 provide that, forany State that has ratified or accededto the Convention, signature of theAgreement will bind the signatoryState to the Agreement 12 monthsafter the Agreement’s adoption, unlessthat State notifies the Depositary oth-erwise.

One distinct advantage of the sim-plified procedure is that it allows alarge number of States that have al-ready ratified or acceded to theConvention easily to become party tothe Agreement as well, thereby reduc-ing the possibility that some States willremain party only to the Convention.

Article 6 governs entry into force ofthe Agreement. By its terms, theAgreement will enter into force 30 daysafter the date on which 40 States haveestablished their consent to be boundby it, provided that at least seven ofthose States meet the criteria estab-lished for pioneer investors in deepsea-bed mining set forth in ResolutionII of the Third United Nations Confer-ence on the Law of the Sea and that, ofthose seven States, five are developedStates. The United States is a pioneerinvestor in deep sea-bed mining forthese purposes.

Article 7 provides for provisionalapplication of the Agreement pendingits entry into force. If the Agreementdoes not enter into force by November16, 1998, due to the failure of the requi-site States with mining interests toadhere to it, provisional applicationmust terminate.

Provisional application advancesimportant U.S. objectives. Withoutprovisional application of the Agree-ment, the Convention would enter intoforce on November 16, 1994 unrevised;i.e., the provisions of the Agreementthat resolve the objectionable featuresof Part XI would not be effective. TheAuthority would begin to function un-der the terms of the Convention,unaffected by the remedial provisionsintroduced by the Agreement.

Provisional application also pro-vides a means to give effect to theremedial provisions of the Agreementwithout using the cumbersome amend-ment procedures contained in theConvention itself. Those amendmentprocedures would at the very least sub-stantially delay the entry into force ofthose provisions and could preventthem from ever coming into force.

By virtue of its signature of theAgreement, the United States agreedto apply the Agreement provisionallybeginning November 16, 1994. Article7(2) provides flexibility in allowingStates to apply it provisionally “in ac-cordance with their national or internallaws and regulations.” This approach,which is similar to that taken in otherinternational agreements that havebeen provisionally applied, ensures thatexisting legislation provides sufficientauthority to implement likely U.S. obli-gations during the period of provisionalapplication.

By provisionally applying theAgreement, the United States can pro-mote its sea-bed mining interests byparticipating in the very first meetingsof the Authority, at which criticaldecisions are likely to be taken. Asdiscussed above, the Agreement givesthe United States considerable influ-ence over the decisions of the Author-ity, which would be lost if the UnitedStates did not participate from the out-set.

Provisional application of theAgreement is consistent with interna-tional and U.S. law. Article 25 of theVienna Convention on the Law of Trea-ties provides for the provisionalapplication of agreements pendingtheir entry into force. Substantial


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State practice has developed in this re-gard; a growing list of internationalagreements have been provisionally ap-plied.

The United States has provisionallyapplied numerous agreements, includ-ing several international commodityagreements and other treaties pendingtheir entry into force for the UnitedStates.

Articles 8 through 10 of the Agree-ment address subsidiary issues relatingto the application of the Agreement.

United States Deep Sea-bedMining Legislation

The DSHMRA constitutes the nationallicensing and permitting regime forU.S. entities engaged in deep sea-bedmining activities.

The basic premise of the DSHMRAis that the interests of the UnitedStates would best be served by U.S.participation in a widely acceptabletreaty governing the full range of oceanuses, including establishment of an in-ternational regime for development ofmineral resources of the sea-bed be-yond national jurisdiction. Recognizingin 1980 that an acceptable internationalregime had not been achieved, Con-gress enacted the DSHMRA both toprovide a legal framework within whichU.S. entities could continue deep sea-bed mining activities during theinterim period pending an acceptabletreaty (and environmental protectionconcerns could be addressed), and to fa-cilitate a smooth transition from thisnational regime to the future interna-tional regime established by such atreaty.

Anticipating the components of anacceptable international regime, Con-gress incorporated into the DSHMRAbasic elements that are similar to thosenow found in Part XI as modified bythe Agreement. These include:

• Recognition of U.S. support forthe principle that the deep sea-bedmineral resources are the commonheritage of mankind (30 U.S.C.§␣1401(a)(7));

• A disclaimer of sovereignty overareas or resources of the deep sea-bed(30 U.S.C. § 1402(a));

• Recognition of the likelihood ofpayments to an international organiza-tion with respect to hard mineralresources (30 U.S.C. § 1402(a)(15));

• Provision of measures forprotection of the marine environ-ment, including an environmentalimpact statement and monitoring(e.g.,␣30 U.S.C. § 1419(a) and (f)); and

• Establishment of a regime basedon a first-in-time priority of right, onobjective, nondiscriminatory criteriaand regulations, and on security of ten-ure through granting of exclusiverights for a fixed time period and withlimitations on the ability to modify au-thorization obligations.

In addition to these basic elements,Subchapter II of the DSHMRA setsforth criteria that would need to be metfor an international regime to be ac-ceptable to the United States, namely,assured and nondiscriminatory accessfor U.S. citizens, under reasonableterms and conditions, to deep sea-bedresources, and assured continuity inmining activities undertaken by U.S.citizens prior to entry into force ofthe␣agreement under terms, conditions,and restrictions that do not imposesignificant new economic burdensthat␣have the effect of preventing con-tinuation of operations on a viableeconomic basis (30 U.S.C. § 401(1)).The DSHMRA also recognizes that atreaty must be judged by the totality ofits provisions (30 U.S.C. § 1441(2)).

As described above, the Agreementclearly revises Part XI in a mannerthat satisfies these criteria. Of particu-lar importance in this context are theelimination of production controls,mandatory technology transfer by op-erators, the annual U.S.$1,000,000 feeduring exploration and the onerous eco-nomic rent provisions of Part XI; theprovision to U.S. entities of non-dis-criminatory access to deep sea-bedmineral resources on terms no less fa-vorable than those provided forregistered pioneer investors; the limi-tations on contract modifications; therestraints imposed on the operation ofthe Enterprise; and the revisions to thedecision-making provisions of Part XIthat will allow the United States toprotect its interests and those of U.S.citizens.

Provisional application of theAgreement, discussed above, advancesa central policy reflected in theDSHMRA of providing for a smoothtransition and continuity of activity be-tween the regime established in theDSHMRA and an acceptable interna-tional regime established by treaty.For the reasons set forth above, provi-sional application provides the onlyworkable transition to the new treatyregime.

The DSHMRA seeks to ensurethat␣the transition to an internationalregime does not result in prematuretermination of on-going commercialrecovery operations by U.S. citizens.In fact, no commercial sea-bed miningis␣currently being conducted by U.S.citizens or by those of other nations,nor is such activity anticipated in thenear future.

Under these circumstances, and inview of article 7(2) of the Agreement(providing for provisional application inaccordance with national or internallaws or regulations), amendments tothe DSHMRA will not be necessaryduring the provisional applicationperiod. International agreements re-garding mutual respect of claims inforce with nations of other pioneer in-vestors will also remain in force duringthis period. As implementation of theinternational regime proceeds, theAdministration will consult with Con-gress regarding the need for additionallegislation prior to entry into force ofthe Convention and the Agreement forthe United States.

MARINE SCIENTIFIC RESEARCH(Articles 40, 87, 143, 147; Part XIII,Articles 238-265; Final Act,Annex␣VI)

The Convention recognizes the essen-tial role of marine scientific research inunderstanding oceanic and related at-mospheric processes and in informeddecision-making about ocean uses andcoastal waters. Part XIII affirms theright of all States to conduct marinescientific research and sets forth obli-gations to promote and cooperate insuch research. The Convention encour-ages publication or dissemination of thedata and information resulting from


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marine scientific research, consistentwith the general U.S. policy of advocat-ing the free and full disclosure of theresults of scientific research.

Part XIII confirms the rights ofcoastal States to require consent formarine scientific research undertakenin marine areas under their jurisdic-tion. These rights are balanced byspecific criteria to ensure that the con-sent authority is exercised in predict-able and reasonable fashion so as topromote maximum access for researchactivities.

The United States is a leader in theconduct of marine scientific researchand has consistently promoted maxi-mum freedom for such research. Theframework offered by the Conventionoffers the best means of pursuing thisobjective, while recognizing extendedcoastal State resource jurisdiction.Although the United State does notexercise the option of requiring consentfor marine scientific research in theU.S. EEZ, the Convention’s proceduresand criteria for obtaining coastal Stateconsent to conduct marine scientificresearch in areas under national juris-diction provide a sound basis forensuring access by U.S. scientists tosuch areas.

The term “marine scientific re-search,” while not defined in theConvention, generally refers to thoseactivities undertaken in the ocean andcoastal waters to expand knowledge ofthe marine environment and its pro-cesses. It is distinguished fromhydrographic survey, from military ac-tivities, including military surveys, andfrom prospecting and exploration.

General Provisions(Section 1, Articles 238-241)

Part XIII sets forth principles govern-ing the conduct of marine scientificresearch, proceeding from the right setforth in article 238 of all States (irre-spective of their geographic location),as well as competent international or-ganizations, to conduct marinescientific research in accordance withthe terms of the Convention. Article239 further calls upon States and com-petent international organizations topromote and facilitate such research.

Article 240 requires marine scien-tific research to be conducted exclu-sively for peaceful purposes. (See dis-cussion below regarding article 301.)It␣is to be carried out with appropriatescientific methods and means, compat-ible with the Convention; it is not tointerfere unjustifiably with other legiti-mate uses of the sea compatible withthe Convention; it is to be duly re-spected in the course of such otheruses; and it is to be conducted in com-pliance with all relevant regulationsadopted in conformity with the Con-vention, including those for theprotection and preservation of themarine environment.

Article 241 provides that marinescientific research is not to constitutethe legal basis for any claim to any partof the marine environment or its re-sources. This provision parallelssimilar provisions in articles 89 and137(1) and (3) on the high seas and theArea, respectively.

International Cooperation(Section 2, Articles 242-244)

Articles 242 and 243 elaborate uponthe␣obligation of States and competentinternational organizations to promoteinternational cooperation in marinescientific research and to cooperate,through conclusion of bilateral andmultilateral agreements, in creatingfavorable conditions for the conduct ofresearch and in integrating the effortsof scientists in studying marine phe-nomena and processes and theirinterrelationships.

Article 244 further obligates Statesand competent international organiza-tions to make available by publicationand dissemination through appropriatechannels information on proposed ma-jor research programs, as well asknowledge resulting from marine scien-tific research. To this end, States andcompetent international organizationsare called upon to promote actively theflow of data and information resultingfrom marine scientific research. Like-wise, the capabilities of developingcountries to carry out marine scientificresearch are to be promoted.

The Intergovernmental Oceano-graphic Commission (IOC) plays aleading role in marine scientific re-search programs, particularly incooperative undertakings with otherUnited Nations agencies and withother governmental and non-govern-mental organizations.

Conduct and Promotion ofMarine␣Scientific Research(Section 3, Articles 245-257)

The Convention sets forth the rightsand obligations of States and compe-tent international organizations withrespect to the conduct of marine scien-tific research in different areas.

Territorial Sea. Article 245 recog-nizes the unqualified right of coastalStates to regulate, authorize and con-duct marine scientific research in theterritorial sea. Therefore, access to theterritorial sea, and the conditions underwhich a research project can be con-ducted there, are under the exclusivecontrol of the coastal State (see also ar-ticles 21(1)(g), 19(2)(j)), 40 and 54).

EEZ and Continental Shelf. Un-der article 246, coastal States have theright to regulate, authorize and conductmarine scientific research in the EEZand on the continental shelf. Access byother States or competent internationalorganizations to the EEZ or continen-tal shelf for a marine scientific researchproject is subject to the consent of thecoastal State. The consent require-ment, however, is to be exercised inaccordance with certain standards andqualifications.

In normal circumstances, thecoastal State is under the obligationto␣grant consent. (It is explicitly pro-vided that circumstances may benormal despite the absence of diplo-matic relations.) The coastal State,nevertheless, has the discretion towithhold its consent if the researchproject is of direct significance for theexploration and exploitation of livingor␣non-living resources; involves drill-ing, the use of explosives or introduc-tion of harmful substances into themarine environment; or involves theconstruction, operation and use ofartificial islands, installations or


Law of the Sea

structures. (The first of these groundsfor withholding consent may be used onthe continental shelf beyond 200 milesonly in areas specially designated asunder development.) It may also with-hold consent if the sponsor of theresearch has not provided accurateinformation about the project or hasoutstanding obligations in respect ofpast projects.

The consent of a coastal State for aresearch project may be granted eitherexplicitly or implicitly. Article 248requires States or organizations spon-soring projects to provide to the coastalState, at least six months in advance ofthe expected starting date of the re-search activities, a full description ofthe project. The research activitiesmay be initiated six months after therequest for consent, unless the coastalState, within four months, has informedthe State or organization sponsoringthe research that it is denying consentfor one of the reasons set forth inarticle 246 or that it requires moreinformation about the project. If thecoastal State fails to respond to therequest for consent within four monthsfollowing notification, consent may bepresumed to have been granted (article252). This provision should encouragetimely responses from coastal States torequests for consent.

Consent may also be presumed un-der article 247 to have been granted bya coastal State for a research projectin␣its EEZ or on its continental shelfundertaken by a competent interna-tional organization of which it is amember, if it approved the project atthe time that the organization decidedto undertake the project and it has notexpressed any objection within fourmonths of the notification of the projectby the organization.

Article 249 sets forth specific condi-tions with which a State or competentinternational organization sponsoringresearch in the EEZ or on␣the conti-nental shelf of a coastal State mustcomply. These include the␣right ofthe␣coastal State to participate inthe␣project, in particular through inclu-sion of scientists on board researchvessels; provision to the coastal Stateof reports and access to data and

samples; assistance to the coastal State,if requested, in assessing and interpret-ing data and results; and ensuring thatresults are made internationally avail-able as soon as practicable. Additionalconditions may be established by thecoastal State with respect to a projectfalling into a category of research ac-tivities over which the coastal Statehas discretion to withhold consentpursuant to article 246.

If a State or competent interna-tional organization sponsoring researchin the EEZ or on the continental shelfof a coastal State fails to comply withsuch conditions, or if the research is notbeing conducted in accordance with theinformation initially supplied to thecoastal State, article 253 authorizes thecoastal State to require suspension ofthe research activities. If those carry-ing out the research do not complywithin a reasonable period of time, or ifthe non-compliance constitutes a majorchange in the research, the coastalState may require its cessation.

The High Seas and the Area.Article 87 expressly recognizes conductof marine scientific research as a free-dom of the high seas. Articles 256 and257 further clarify that marine scien-tific research may be conducted freelyby any State or competent interna-tional organization in the water columnbeyond the limits of the EEZ, as wellas in the Area, i.e., the sea-bed andocean floor, and the subsoil thereof,beyond the limits of national jurisdic-tion. Under article 143, research in theArea is to be carried out exclusively forpeaceful purposes. (See discussion ofarticle 301 below.)

Research Installations andEquipment (Section 4,Articles 258-262)

The conditions applicable to marinescientific research set forth in the Con-vention apply equally to the deploy-ment and use of installations and equip-ment to support such research (article258). Such installations and equipmentdo not possess the status of islands,though safety zones of a reasonablebreadth (not exceeding 500 meters)may be created around them, consis-tent with the Convention. They maynot be deployed in such fashion as to

constitute an obstacle to established in-ternational shipping routes. They mustbear identification markings indicatingthe State of registry or the interna-tional organization to which theybelong, and have adequate internation-ally agreed warning signals (articles259-262).

Responsibility and Liability(Section 5, Article 263)

Pursuant to article 263(1), States andcompetent international organizationsshall be responsible for ensuring thatmarine scientific research, whether un-dertaken by them or on their behalf, isconducted in accordance with the Con-vention. Pursuant to article 263(2),States and organizations shall be re-sponsible and liable for any measuresthey take in contravention of the Con-vention in respect of research by otherStates, their natural or juridical per-sons or by competent internationalorganizations and shall provide com-pensation for damage resulting fromsuch measures. With respect to dam-age caused by pollution of the marineenvironment arising out of marine sci-entific research undertaken by or onthe behalf of States and competent in-ternational organizations, such Statesor organizations shall be liable pursu-ant to article 235 (discussed above inconnection with Part XII of the Con-vention.)

Settlement of Disputes(Section 6, Articles 264-265)

The application of the dispute settle-ment provisions of the Convention tomarine scientific research is discussedbelow in the section on dispute settle-ment.

DISPUTE SETTLEMENT(Part XV, Articles 279-299;Annexes V-VIII)

The Convention establishes a disputesettlement system to promote compli-ance with its provisions and ensurethat disputes are settled by peacefulmeans. The system applies to disputesbetween States and, with respect todeep sea-bed mining, to disputes


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between States or miners and the Au-thority. The dispute settlementprocedures of the Convention are:

• Flexible, in that Parties have op-tions as to the appropriate means andfora for resolution of their disputes;

• Comprehensive, in that the bulkof the Convention’s provisions can beenforced through binding mechanisms;and

• Accommodating of matters ofvital national concern, in that they ex-clude certain sensitive categories ofdisputes (e.g., disputes involving EEZfisheries management) from bindingdispute settlement; they also permit aState Party to elect to exclude othersuch categories of disputes (e.g., dis-putes involving military activities)from binding dispute settlement.

The dispute settlement system ofthe Convention advances the U.S.policy objective of applying the ruleof␣law to all uses of the oceans. As aState Party, the United States couldenforce its rights and preserve its pre-rogatives through dispute settlementunder the Convention, as well as pro-mote compliance with the Conventionby other States Parties. At the sametime, the procedures would not requirethe United States to submit to bindingdispute settlement matters such asmilitary activities or the right to man-age fishery resources within the U.S.EEZ.

General Provisions(Articles 279-285)

Section 1 contains general provisionsconcerning the settlement of disputesunder the Convention. Article 279obligates the parties to a disputeconcerning the interpretation or appli-cation of the Convention to settle thedispute by peaceful means in accor-dance with the United NationsCharter. Articles 280 to 282 elaboratethe right of States to agree on alterna-tive means for settling their disputes.Article 284 provides for optionalconciliation in accordance with theprocedure set forth in Annex V,section␣1, or any other conciliationprocedure chosen by the parties tothe␣dispute.

Compulsory, Binding DisputeSettlement (Articles 286-296)

Section 2 addresses compulsory disputesettlement procedures entailing bind-ing decisions. Except as otherwiseprovided in section 3, if no settlementhas been reached under section 1, sec-tion 2 of Part XV provides for disputesconcerning the interpretation or appli-cation of the Convention to be sub-mitted, at the request of any party tothe dispute, to the court or tribunalhaving jurisdiction under this section.

Section 2 (article 287(1)) identifiesfour potential fora for compulsory,binding dispute settlement:

• The International Tribunal forthe Law of the Sea constituted underAnnex VI;

• The International Court of Jus-tice;

• An arbitral tribunal constitutedin accordance with Annex VII; and

• A special arbitral tribunal consti-tuted in accordance with Annex VIIIfor specified categories of disputes.

A State, when signing, ratifying, oracceding to the Convention, or at anytime thereafter, is able to choose, bywritten declaration, one or more ofthese means for the settlement of dis-putes under the Convention.

If the parties to a dispute havenot␣accepted the same procedure forsettlement of the dispute, it may besubmitted only to arbitration in accor-dance with Annex VII, unless theparties otherwise agree (article 287(5)).If a State Party has failed to announceits choice of forum, it shall be deemedto have accepted arbitration in accor-dance with Annex VII.

As stated in the Secretary ofState’s report to the President, it isrecommended that the United Statesmake the following declaration:

The Government of the United Statesof␣America declares, in accordance witharticle 287(1), that it chooses the follow-ing means for the settlement of disputesconcerning the interpretation or appli-cation of the Convention:

(A) a special arbitral tribunal consti-tuted in accordance with Annex VIIIfor the settlement of disputes concern-ing the interpretation or application ofthe articles of the Convention relatingto (1) fisheries, (2) protection and pres-ervation of the marine environment, (3)marine scientific research, and (4) navi-gation, including pollution from vesselsand by dumping; and

(B) an arbitral tribunal constitutedin accordance with Annex VII for thesettlement of disputes not covered bythe declaration in (A) above.

Choice of forum does not affect thejurisdiction of the Sea-Bed DisputesChamber of the International Tribunalfor the Law of the Sea, as provided forin Part XI (see below).

Article 290 authorizes a competentcourt or tribunal, which considers thatprima facie it has jurisdiction, to pre-scribe appropriate provisionalmeasures to preserve the respectiverights of the parties to the dispute or toprevent serious harm to the marine en-vironment, pending the final decision.The term “marine environment,” asused in the Convention, includes “ma-rine life,” so that a competent court ortribunal may prescribe provisional con-servation measures for living marineresources under this authority whetheror not such measures are necessary toprotect the respective rights of the par-ties.

Article 292 provides specifically forexpedited dispute settlement to ad-dress allegations that a State Party hasnot complied with the Convention’sprovisions for the prompt release of avessel flying the flag of another StateParty and its crew.

Article 293 provides for a court ortribunal having jurisdiction under sec-tion 2 to apply the Convention andother rules of international law not in-compatible with the Convention.

Any decision rendered by a court ortribunal having jurisdiction under sec-tion 2 is final and is to be complied withby all the parties to the dispute; how-ever, the decision has no binding forceexcept between the parties and in re-spect of that particular dispute (article296).


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Limitations on Compulsory,Binding Dispute Settlement(Articles 297-299)

Section 3 provides for limitations on,and optional exceptions to, the applica-bility of compulsory, binding disputesettlement under section 2.

Limitations . Disputes concerningthe exercise by a coastal State of itssovereign rights or jurisdiction are sub-ject to compulsory, binding disputesettlement under section 2 only in cer-tain cases (article 297(1)). These casesinvolve allegations that:

• A coastal State has acted in con-travention of the provisions of theConvention in regard to the freedomsand rights of navigation, overflight orthe laying of submarine cables andpipelines, or in regard to other interna-tionally lawful uses of the sea specifiedin article 58;

• A State, in exercising such rightsand freedoms, has violated the Conven-tion or certain laws and regulationsadopted by a coastal State; and

• A coastal State has violatedspecified rules and standards for theprotection of the marine environment.

Disputes concerning marine scien-tific research fall within the scope ofcompulsory, binding dispute settlementunder section 2, with two exceptions(article 297(2)). The first exception in-volves the exercise by the coastal Stateof its explicit right or discretion towithhold consent (e.g., with respect toresearch directly related to resourcesor involving drilling). The second per-tains to the coastal State’s decision toexercise its right to suspend or cancel aresearch project for non-compliancewith certain required conditions.There is provision, however, for dis-putes falling within such exceptions tobe addressed through compulsory, non-binding conciliation under Annex V,section 2.

Under article 297(3), fisheries dis-putes are subject to compulsory,binding dispute settlement under sec-tion 2, except that a coastal State neednot submit to such settlement any dis-pute relating to its sovereign rightswith respect to the living resources inits EEZ, or the exercise thereof,

including, for example, its discretionarypowers for determining the allowablecatch. However, such disputes may,under certain conditions, be referred tocompulsory, nonbinding conciliationunder Annex V, section 2. Conciliationmay be invoked if it is alleged that acoastal State has:

• Manifestly failed to comply withits obligations to ensure throughproper conservation and managementmeasures that the maintenance of theliving resources in the exclusive eco-nomic zone is not seriously endangered;

• Arbitrarily refused to determine,at the request of another State, the al-lowable catch and its capacity toharvest living resources with respect tostocks which that other State is inter-ested in fishing; or

• Arbitrarily refused to allocate toany State, under articles 62, 69 and 70and under terms and conditions estab-lished by the coastal State consistentwith this Convention, the whole or partof the surplus it has declared to exist.

Optional Exceptions. Article 298provides for a State to opt out of one ormore of the dispute settlement proce-dures in section 2 with respect to oneor more enumerated categories of dis-putes. These include:

• Maritime boundary disputes (towhich compulsory, nonbinding concilia-tion may apply under certainconditions);

• Disputes concerning military ac-tivities and certain law enforcementactivities; and

• Disputes in respect of which theUN Security Council is exercising thefunctions assigned to it by the UnitedNations Charter.

As stated in the Secretary ofState’s report to the President, it isrecommended that the United Statesinvoke all three of these exceptionsand, thus, that the United States makethe following declaration:

The Government of the United States ofAmerica declares, in accordance withparagraph 1 of article 298, that it doesnot accept the procedures provided forin section 2 of Part XV with respect tothe categories of disputes set forth insubparagraphs (a), (b) and (c) of thatparagraph.

Particular RegimeFor Deep Sea-bed Mining

The Convention contains provisionsthat apply specifically to disputes relat-ing to deep sea-bed mining. Unlikeother disputes arising under the Con-vention, deep sea-bed mining disputesmay be brought before the Sea-BedDisputes Chamber of the InternationalTribunal for the Law of the Sea, estab-lished by article 14 and section 4 ofAnnex VI to the Convention.

Article 187 gives the Sea-Bed Dis-putes Chamber jurisdiction, inter alia,over disputes:

1) Between States Parties regard-ing the interpretation or application ofPart XI and its related annexes, asmodified by the Agreement;

2) Between the Authority andStates Parties regarding:

i) Acts or omissions of the Au-thority in contravention of theConvention or rules and regulationsadopted pursuant thereto,

ii) An allegation of acts by theAuthority in excess of its jurisdictionor a misuse its power, and

iii) Disapproval of a contract forexploration and exploitation rights;

3) Between the Authority and min-ing companies regarding:

i) The refusal to approve a planof work or legal issues arising duringthe approval process, and

ii) The interpretation or applica-tion of a contract and activitiesundertaken pursuant to an approvedplan of work.

In the case of disputes regardingthe interpretation or application of acontract, or acts or omissions of a partyto a contract, the mining companieshave standing to initiate proceedingsand need not rely on the sponsoringState. In addition, article 188 providesthat such disputes shall be submitted tocommercial arbitration at the requestof any party to the dispute.

Article 189 provides that theTribunal shall not substitute its discre-tion for that of the Authority. It alsoprovides that the Tribunal shall not de-clare invalid any rules and regulations


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adopted by the Authority, but shallconfine itself to determinations ofwhether their application in specificcases is consistent with the Conventionor with a contract, or whether the Au-thority has exceeded its jurisdiction orhas misused its power.

Arbitration Under Annex VII

Annex VII sets forth detailed rulesconcerning the procedure governingarbitration under this Annex:

• The list of potential arbitrators ismaintained by the Secretary-General ofthe United Nations; each Party maynominate up to four arbitrators to ap-pear on the list.

• An arbitral panel generally con-sists of five members. Each party tothe dispute appoints one member; theother three members are appointed byagreement between the parties. AnnexVII provides a mechanism for appoint-ments, should the parties be unable toagree on members; in general, thePresident of the International Tribunalfor the Law of the Sea makes the nec-essary appointments.

• The arbitral tribunal determinesits own procedure.

• Decisions of the tribunal are to beby majority vote.

• Arbitral awards are final andwithout appeal (unless otherwiseagreed) and are to be complied with bythe parties to the dispute.

Special Arbitration UnderAnnex VIII

Annex VIII contains somewhat differ-ent rules concerning the proceduregoverning arbitration of disputesconcerning the interpretation or appli-cation of articles of the Conventionrelating to (1) fisheries; (2) protectionand preservation of the marine envi-ronment; (3) marine scientific research;and (4) navigation, including pollutionfrom vessels and by dumping:

• States Parties may nominate twoexperts in each of these fields, whosenames shall appear on lists of expertsto be established and maintained.

• A special arbitral panel generallyconsists of five members, preferablyappointed from the relevant list. Each

party to the dispute appoints two mem-bers; the other member is appointed byagreement between the parties. AnnexVIII provides a mechanism for appoint-ments, should the parties be unable toagree on a fifth member; in general,the␣Secretary-General of the UnitedNations is to make the necessaryappointments.

• The provisions for arbitration un-der Annex VII shall otherwise apply.

• In addition, the parties to adispute may agree to request the spe-cial arbitral tribunal to carry out aninquiry and establish the facts givingrise to the dispute and, if the partiesfurther agree, to formulate recommen-dations which shall constitute a basisfor review by the parties.

OTHER MATTERS

MARITIME BOUNDARYDELIMITATION (Articles 15-16,74-75, 83-84)

Where the territorial seas, EEZs orcontinental shelves of States with oppo-site or adjacent coasts overlap, theConvention provides rules for thedelimitation of those zones.

With respect to the territorial sea,delimitation is to be based on equi-distance (i.e., a median line), unless his-toric title or other special circum-stances call for a delimitation differentfrom equidistance (article 15).

With respect to the EEZ and thecontinental shelf, articles 74 and 83 pro-vide that delimitation of the EEZ andthe continental shelf, respectively, areto be effected by agreement, on the ba-sis of international law, in order toachieve an equitable solution.

Pending agreement on delimitationof the EEZ or the continental shelf,the␣States concerned are to make everyeffort to enter into provisional arrange-ments of a practical nature and, duringthis transitional period, not to jeopar-dize or hamper the reaching of the finalagreement (articles 74(3) and 83(3)).Such arrangements are without preju-dice to the final delimitation of theEEZ or the continental shelf (article74(3)).

Where there is an agreement inforce between the States concerned,questions relating to the delimitation ofthe EEZ or the continental shelf are tobe determined in accordance with theprovisions of that agreement.

Implications for U.S. MaritimeBoundaries. The United States has28␣maritime boundary situations withits neighbors. To date, 10 of them havebeen negotiated or adjudicated inwhole or in part.

U.S. maritime boundary positionsare fully consistent with the rules re-flected in the Convention. Thesepositions were determined through aninteragency process in the late 1970s,prior to the U.S. extension of its mari-time jurisdiction to 200 miles. As aresult of that process, the UnitedStates determined that equidistancewas the appropriate boundary in mostcases, but that three situations re-quired a boundary other than theequidistant line: with Canada in theGulf of Maine/Georges Bank area; withthe U.S.S.R. (now the Russian Federa-tion) in the Bering and Chukchi Seasand North Pacific Ocean; and withthe␣Bahamas north of the Straits ofFlorida. These positions were reflectedin the outer limit of the U.S. EEZ,published in the Federal Register (No-vember 4, 1976, March 7 and May 12,1977, and January 11, 1978).

The Senate has given its advice andconsent to ratification of boundarytreaties related to the following areas:U.S.-Mexico (regarding the territorialsea boundary); U.S. (Puerto Rico andU.S. Virgin Islands)-Venezuela; U.S.(American Samoa)-Cook Islands; U.S.(American Samoa)-New Zealand(Tokelau); and U.S.-U.S.S.R. (now theRussian Federation). The Senate hasbefore it, for its advice and consent,treaties establishing equidistant lineboundaries with Cuba and Mexico. TheSenate also has before it two recentlyconcluded equidistant line treaties withthe United Kingdom in respect ofPuerto Rico and the U.S. Virgin Is-lands, and Anguilla and the BritishVirgin Islands. (Pending entry intoforce, the U.S.-Cuba boundary treaty isbeing applied provisionally pursuant toits terms, extended through biannualexchanges of notes. The U.S.-Mexico


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boundary is being applied through aninterim executive agreement. TheU.S.-Russia treaty is being applied pro-visionally pending ratification byRussia.)

With respect to the U.S.-Canadamaritime boundary in the Gulf ofMaine, most of that boundary wasdetermined through a 1984 award of aChamber of the International Court ofJustice. Regarding the United Statesand Japan, they have recorded an un-derstanding that recognizes that therespective outer limits of their mari-time jurisdiction coincide andconstitute a line of delimitation.

In addition to the President’sconstitutional authority in thisarea,␣Congress has authorized theSecretary of State to negotiatewith␣foreign States to establish theboundaries of␣the EEZ of the UnitedStates in relation to any such State(16␣U.S.C. §␣1822(d)) and called uponthe President to establish proceduresfor settling any outstanding interna-tional boundary disputes regardingthe␣outer continental shelf (43 U.S.C.§␣1333(a)(2)(B)).

ENCLOSED OR SEMI-ENCLOSEDSEAS (Part IX, Articles 122-123)

The Convention defines an enclosed orsemi-enclosed sea as a “gulf, basin orsea surrounded by two or more Statesand connected to another sea or theocean by a narrow outlet or consistingentirely or primarily of the territorialseas and exclusive economic zones oftwo or more coastal States” (article122).

The Convention calls upon Statesbordering an enclosed or semi-enclosedsea to cooperate in carrying out theirduties under the Convention, but givessuch States no greater or lesser rightsvis-a-vis third States. The Conventiondoes, however, specifically requirethem to endeavor to coordinate witheach other in the areas of managementof living resources, environmental pro-tection and scientific research and toinvite, as appropriate, other interestedStates and international organizationsto cooperate with them in these under-takings (article 123).

These provisions do not place orauthorize any additional restrictionsor␣limitations on navigation and over-flight with respect to enclosed orsemi-enclosed seas beyond those thatappear elsewhere in the Convention.

RIGHT OF ACCESS OF LAND-LOCKED STATES TO AND FROMTHE SEA AND FREEDOM OFTRANSIT (Part X, Articles 124-132)

Part X addresses the rights of access ofland-locked States to and from the sea.It draws from, and expands upon, ar-ticle 3 of the High Seas Convention.Part X also tracks quite closely the1965 Convention on Transit Trade ofLand-locked States, 19 UST 7383,TIAS No. 6592, 597 UNTS 42.

Article 124 defines several termsapplicable to this Part of the Conven-tion. In particular, a land-locked Stateis one which does not have a sea coast,and a transit State is one that is situ-ated between a land-locked State andthe sea, through whose territory trafficin transit passes.

Article 125 gives land-locked Statesthe right of access to and from the sea.The remaining articles of Part X ad-dress the specific rights and obligationsof land-locked and transit States. Ex-act terms of transit are to be agreedupon between the land-locked and tran-sit States concerned. The UnitedStates is neither. It does, however,have interests in trade with land-lockedStates and in their economic develop-ment. Those interests are furthered byPart X.

Worldwide, there are now 42 land-locked States:

Africa (15): Botswana, Burkina,Burundi, Central African Republic,Chad, Ethiopia, Lesotho, Malawi, Mali,Niger, Rwanda, Swaziland, Uganda,Zambia, Zimbabwe

Asia (12): Afghanistan, Armenia,Azerbaijan, Bhutan, Kazakhstan,Kyrgyzstan, Laos, Mongolia, Nepal,Tajikistan, Turkmenistan, Uzbekistan

Europe (13): Andorra, Austria,Belarus, Czech Republic, Holy See,Hungary, Liechtenstein, Luxembourg,F.Y.R.O.M.1, Moldova, San Marino,Slovakia, Switzerland

South America (2): Bolivia, Para-guay.

OTHER RIGHTS OFLAND-LOCKED STATESAND␣GEOGRAPHICALLYDISADVANTAGED STATES(Articles 69-71, 160-161, 254,266, 269, 272)

Several articles in the Convention re-quire that specific consideration begiven to land-locked and geographicallydisadvantaged States. Article 70(2) de-fines a geographically disadvantagedState (GDS) as one which either canclaim no EEZ of its own, or one whosegeographical situation makes it depen-dent upon the exploitation of livingresources in the EEZs of other coastalStates in its region or subregion. Thearticles relating to access to fisheriesare discussed above in connection withliving marine resources.

The Assembly of the Authority is toconsider problems of a general naturein connection with activities in theArea arising in particular for develop-ing States, particularly for land-lockedStates and geographically disadvan-taged States (article 160(1)(k)).

Article 254 provides for land-lockedStates and GDS to be given the oppor-tunity to participate in marine scientificresearch in areas off neighboringcoastal States. Articles 266, 269 and272 further call upon States, eitherdirectly or through competent interna-tional organizations, to endeavor topromote the development of marine sci-entific and technological capacitythrough programs of technical coopera-tion with land-locked States andgeographically disadvantaged States.

DEVELOPMENT AND TRANSFEROF MARINE TECHNOLOGY(Part␣XIV, Articles 266-278)

Part XIV of the Convention is largelydeclaratory of policy and imposes fewspecific obligations. It will not compelany change in U.S. practices or policy.It encourages States to promote thedevelopment and transfer of marinetechnology, particularly in relation toachieving more widespread participa-tion in and benefit from marinescientific research activities coveredin␣Part XIII. Technology transfer

1Former Yugolsav Republic of Macedonia.


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regarding deep sea-bed mining was dis-cussed above, except for articles273-275, which are discussed below.

Article 266 urges States to cooper-ate in accordance with their capabilitiesin promoting development and transferof marine science and technology onfair and reasonable terms and condi-tions, as well as to promote the marinescientific and technological capacity ofStates, particularly developing coun-tries, which may need and requestassistance in this field. In promotingsuch cooperation, States are to havedue regard for the rights and duties ofholders, suppliers and recipients of ma-rine technology.

Article 268 lists basic objectivesto␣be promoted by States, directly orthrough competent internationalorganizations. These include the acqui-sition, evaluation and dissemination ofmarine technological knowledge andfacilitation of access to data and infor-mation; the development of appropriatemarine technology, as well as of the in-frastructure to facilitate transfer ofmarine technology; and the develop-ment of human resources throughtraining and education of developingcountry nationals. In that regard, theIMO has established the World Mari-time University in Malmo, Sweden, andthe International Maritime Law Insti-tute in Malta.

Article 269 identifies measures toachieve these objectives, including theestablishment of technical cooperationprograms; promotion of favorable con-ditions for conclusion of agreements,contracts and other similar arrange-ments, under equitable and reasonableconditions; holding conferences, semi-nars and symposia; promotion of theexchange of scientists and experts; andundertaking projects and promotion ofjoint ventures and other forms of bilat-eral and multilateral cooperation.

International cooperation to pro-mote development and transfer ofmarine technology should include useof␣existing programs (article 270);establishment of generally acceptedguidelines, criteria and standards forthe transfer of such technology on abilateral basis or within the framework

of international organizations (article271); and coordination of the activitiesof competent international organiza-tions (article 272).

Article 273 calls upon States tocooperate with competent internationalorganizations and the Authority to en-courage and facilitate transfer todeveloping countries and the Enter-prise of skills and marine technologyregarding activities in the Area (i.e.,exploration and exploitation of sea-bedminerals). With further respect to ac-tivities in the Area, article 274 urgesthe Authority itself, subject to therights and duties of holders, suppliersand recipients of marine technology,to␣provide training and employmentopportunities to developing country na-tionals; to make available, as requestedand particularly to developing coun-tries, technical documentation onrelevant technologies; and to facilitatetechnical assistance to developing coun-tries in acquiring skills and know-howas well as hardware.

Article 275 encourages States topromote, particularly in developingcoastal States, establishment ofnational marine scientific and techno-logical research centers, as well asstrengthening of existing centers, whilearticle 276 emphasizes the establish-ment of regional marine scientific andtechnological centers, particularly indeveloping countries. The functions ofsuch centers are to include training andeducation; management studies andstudies on the health of the marine en-vironment; organization of regionalconferences, seminars and symposia;acquisition and processing of marinescientific and technological data and in-formation, as well as dissemination ofresults of marine scientific and marinetechnological research; and compilationof information on specific technologiesand study of national policies on trans-fer of marine technology (article 277).

Under Part XIII (marine scientificresearch), as well as Part XIV, compe-tent international organizations arecalled upon to take all appropriate mea-sures directly or in close cooperation tocarry out their responsibilities underPart XIV (article 278).

DEFINITIONS (Part I, Article 1)

Various provisions of the Conventiondefine key terms. Article 1(1) containsthe definitions of five terms for pur-poses of the entire Convention: Area;Authority; activities in the Area; pollu-tion of the marine environment; anddumping. The first three of these defi-nitions relate to the regime for deepsea-bed mining and are discussedabove. The next two definitions relateto marine environmental issues, andare also discussed above.

Article 1(2) contains a standarddefinition for the term “States Parties”and also makes clear that the term ap-plies, mutatis mutandis, to certainother entities (such as the EuropeanCommunity) entitled to become partyto the Convention under article 305, inaccordance with the conditions relevantto each.

Certain terms are defined else-where in the Convention, but also forpurposes of the entire Convention: ar-chipelagic baselines (article 47);archipelagic sea lanes passage (article53(3)); archipelagic State (article 46);archipelago (article 46); bay (article10(2)); contiguous zone (article 33); con-tinental shelf (article 76); enclosed orsemi-enclosed sea (article 122); EEZ(article 55); innocent passage (article19(2)); internal waters (article 8); land-locked State (article 124(1)(a)); low-tideelevation (article 13(1); means of trans-port (article 124(1)(d)); passage (article18(1)); piracy (article 101); pirate shipor aircraft (article 103); territorial sea(article 2); transit passage (article38(2)); transit State (article 124(1)(c));unauthorized broadcasting (article 109);and warship (article 29).

Certain terms are given specificmeanings for a particular Part or agiven article of the Convention, par-ticularly in relation to deep sea-bedmining. Neither the term “ship” northe term “vessel” is defined in the Con-vention; the two are considered to besynonymous.

Few of these terms were defined inthe Territorial Sea Convention, theContinental Shelf Convention, or theHigh Seas Convention. The definitions


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included in the LOS Convention thusrepresent an advance in the effort tomake the law of the sea more preciseand predictable.

GENERAL PROVISIONS(Part XVI, Articles 300-304)

Part XVI of the Convention containsfive “general provisions” to guide theinterpretation and application of theConvention as a whole, or of specificparts of it.

Good Faith and Abuse of Rights(Article 300)

This article restates existing custom-ary law. The requirement of good faithreflects article 2(2) of the United Na-tions Charter and the fundamental rulepacta sunt servanda, reflected in ar-ticle 26 of the Vienna Convention onthe Law of Treaties.

Peaceful Uses of the Seas(Articles 88, 141, 143(1), 147(2)(d),155(2), 240(a), 242(1), 246(3), 301)

Article 301 reaffirms that all StatesParties, whether coastal or flag States,in exercising their rights and perform-ing their duties under the Conventionwith respect to all parts of the sea,must comply with their duty under ar-ticle 2(4) of the United Nations Charterto refrain from the threat or use offorce against the territorial integrity orpolitical independence of any States.

Other provisions of the Conventionecho this requirement. Article 88 re-serves the high seas for peacefulpurposes, while articles 141 and 155(2)reserves the Area for peaceful pur-poses. Under articles 143(1), 147(2)(d),240(a), 242(1) and 246(3), marine scien-tific research is required to beconducted for peaceful purposes.

None of these provisions createsnew rights or obligations, imposesrestraints upon military operations,or␣impairs the inherent right of self-defense, enshrined in article 51 ofthe␣United Nations Charter. Moregenerally, military activities which areconsistent with the principles of inter-national law are not prohibited bythese, or any other, provisions of theConvention.

Disclosure of Information(Article 302)

Without prejudice to the use of theConvention’s dispute settlement proce-dures, in fulfilling its obligations underthe Convention, a State Party is not re-quired to supply information thedisclosure of which is contrary to theessential interests of its security.

Archaeological and HistoricalObjects Found at Sea(Articles 33, 149 and 303)

Article 303 imposes a general duty onStates to protect objects of an archaeo-logical and historical nature found atsea and to cooperate for this purpose.This obligation was implemented bythe Abandoned Shipwreck Act of 1987,42 U.S.C. §§ 2101-2106, and implement-ing regulations 54 Fed. Reg. 13642et␣seq .; the National Marine SanctuaryAct, 16 U.S.C. section 1431 et seq; theArchaeological Resources ProtectionAct, 16 U.S.C. § 470aa-ll, and its uni-form regulations 43 CFR Part 7,36␣CFR Part 296, 18 CFR Part 1312,32␣CFR Part 229; the National HistoricPreservation Act, 16 U.S.C. § 470,36␣CFR Part 800; the Antiquities Actof 1906, 16 U.S.C. §§ 431-433; and theNational Register of Historic Places,36␣CFR Parts 60 & 63.

Coastal State competence to controlthe activities of foreign nationals andforeign flag ships in this regard is lim-ited to internal waters, its territorialsea, and if it elects, to its contiguouszone (article 303(2)). The United Stateshas not decided whether to extend itscontiguous zone for this purpose.

Under article 149, all such objectsfound on the sea-bed beyond the limitsof national jurisdiction must be pre-served and disposed of for the benefitof mankind as a whole. Particularregard must be paid to the preferentialrights of the State or country of origin,the State of cultural origin, or the Stateof historical or archaeological origin.

Article 303(3) clarifies that the Con-vention is not intended to affect therights of identifiable owners, admiraltylaw, and the laws and practices con-

cerning cultural exchanges. Article 303is without prejudice to other interna-tional agreements and rules ofinternational law regarding the protec-tion of objects of an archaeological andhistorical nature (article 303(4)). Forexample, in 1989, the United States andFrance entered into an agreement forthe protection and study of the wreckof the CSS Alabama, sunk by USSKearsarge on June 19, 1864, in watersnow forming part of the French territo-rial sea (TIAS No. 11687).

The term “objects of an archaeologi-cal and historical nature” is not definedin the Convention. It is not intended toapply to modern objects whatever theirhistorical interest.

Responsibility and LiabilityFor Damage (Article 304)

The many specific provisions of theConvention regarding State responsi-bility and liability for damage (articles31, 42(5), 106, 110(3), 139, 232, 235, 263)are without prejudice to existing rulesand the development of further rules.

FINAL PROVISIONS (Part XVII,Articles 305-320)

The final provisions of the Conventioncontain a number of innovations in ad-dition to the usual final clauses.

Signature (Article 305)

The Convention was open for signaturefor two years from the date of its adop-tion, December 10, 1982. By Decem-ber 9, 1984, the Convention had beensigned by 159 States and other entitiesentitled to sign it (Cook Islands, EEC,United Nations Council for Namibiaand Niue). Along with the UnitedStates, 13 other States then in exist-ence did not sign the Convention:Albania, Ecuador, Federal Republic ofGermany, the Holy See, Israel, Jordan,Kiribati, Peru, San Marino, Syria,Turkey, the United Kingdom, andVenezuela. The Trust Territory ofthe␣Pacific Islands and the West IndiesAssociated States also did not signthe␣Convention, although they wereeligible to do so.


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Ratification and Accession(Articles 306 and 307)

The Convention makes signature sub-ject to ratification. As of September 8,1994, 65 States had deposited their in-struments of ratification, accession orsuccession to the Convention.

Entry Into Force (Article 308)

Pursuant to article 308, the Conventionenters into force 12 months after the de-posit of the 60th instrument ofratification or accession. That instru-ment was deposited on November 16,1993; accordingly, the Convention willenter into force on November 16, 1994.

Thereafter, the Convention will en-ter into force for a State ratifying oracceding to it 30 days following depositof its instrument of ratification or acces-sion.

(The entry into force of the Agree-ment, and its effect in revising Part XI,is discussed above in the section relat-ing to deep sea-bed mining.)

Reservations, Exceptions,Declarations and Statements(Articles 309 and 310)

Article 309 prohibits reservations andexceptions to the Convention, exceptwhere expressly permitted by otherarticles. No other article permits reser-vations; only article 298 permitsexceptions and allows a Party to ex-clude certain categories of disputesfrom compulsory dispute settlement.

Article 310 provides that a Statemay make declarations or statementswhen signing, ratifying or acceding tothe Convention, provided they are notreservations, i.e., that they do not pur-port to exclude or modify the legaleffect of the provisions of the Conven-tion in their application to that State.

Relation to Other InternationalAgreements (Article 311)

The Convention considers the effect ofthe Convention on earlier agreements,and of later agreements on the Conven-tion, where the same State is party toboth, in a manner that is generally con-sistent with the Vienna Convention onthe Law of Treaties.

Agreements, existing or future,that are expressly permitted or pre-served by the Convention are notaffected by the Convention. Examplesof such agreements would include mari-time boundary treaties between Stateswith opposite or adjacent coasts.

Amendment (Articles 312-316)

The Convention creates distinct re-gimes for amendments relating toactivities in the Area (i.e., deep sea-bedmining activities) and to all other partsof the Convention.

With respect to amendments notrelating to activities in the Area,amendments to the Convention may beadopted in either of two ways. First,beginning in November 2004, theStates Parties may convene a confer-ence, if more than half the StatesParties agree to do so, for the purposeof considering and adopting amend-ments to the Convention (article 312).

Second, proposed amendments thatare circulated at any time after entryinto force of the Convention shall beconsidered adopted if no State objectsto the amendment, or to use of the sim-plified procedure, within 12 months ofcirculation of the amendment (article313).

In either case, amendments aresubject to ratification. They enter intoforce only for States ratifying them,after they have been ratified by two-thirds of, but not fewer than 60, StatesParties (article 316(1)).

With respect to amendments relat-ing to activities in the Area (i.e., deepsea-bed mining), amendments to thedeep sea-bed mining regime can onlybe adopted upon the approval of theCouncil and Assembly of the Authority.The Council, on which the UnitedStates is guaranteed a seat in perpetu-ity (provided we are party), can onlyadopt such amendments by consensus(article 161(8)(d)).

Because the sea-bed mining regimecreates an institutional structure thatcan operate only on the basis of one setof rules applicable to all, amendmentsto this regime enter into force for allStates Parties one year after three-fourths of the States Parties ratify.

As noted above, the Agreementabolishes the Review Conference.

Denunciation (Withdrawal)(Article 317)

A State Party may denounce theConvention on one year’s notice.Article 317 also addresses certainconsequences of denunciation.

Status of Annexes (Article 318)

The Annexes form an integral part ofthe Convention.

Depositary (Article 319)

The Secretary-General of the UnitedNations is the depositary and isassigned the normal functions ofa␣Depositary, as well as those conse-quential to particular provisions inthe␣Convention.

Authentic Texts (Article 320)

The texts in the six official languages ofthe United Nations are equally authen-tic. ■

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