The U.N. Law of the Sea Convention and the United States: Developments Since October 2003

The U.N. Law of the Sea Convention and
the United States: Developments Since
October 2003
Marjorie Ann Browne
Specialist in International Relations
Foreign Affairs, Defense, and Trade Division
Summary
On October 31, 2007, the Senate Foreign Relations Committee voted to
recommend Senate advice and consent to U.S. adherence to the 1982 U.N. Convention
on the Law of the Sea and the 1994 Agreement Relating to Implementation of Part XI
of that Convention. This followed the statement by President Bush on May 15, 2007,
urging “the Senate to act favorably on U.S. accession” to the Convention. CRS Issue
Brief IB95010, The Law of the Sea Convention and U.S. Policy, serves as a basic CRS
source for discussion of issues related to the United States and the Convention and
Agreement, whereas this short report focuses on events and issues that emerged since¹
October 2003. It summarizes the committee’s proposed resolution of advice and
consent in 2004 and presents some of the issues raised in support of and in opposition
to U.S. adherence. This report will be updated periodically.
Introduction
On October 31, 2007, following hearings on September 27 and October 4, 2007, the
Senate Committee on Foreign Relations voted to recommend Senate advice and consent
to U.S. adherence to the U.N. Convention on the Law of the Sea. On May 15, 2007,
President George Bush had issued a statement on Advancing U.S. Interests in the World’s
Oceans in which he “urged the Senate to act favorably on U.S. accession to the United
Nations Convention on the Law of the Sea during this session of Congress.” He
continued,
Joining will serve the national security interests of the United States, including the
maritime mobility of our armed forces worldwide. It will secure U.S. sovereign rights
over extensive marine areas, including the valuable natural resources they contain.
Accession will promote U.S. interests in the environmental health of the oceans. And

¹ A copy of the Issue Brief is available from this author.

it will give the United States a seat at the table when the rights that are vital to our²
interests are debated and interpreted.
On February 25, 2004, the Senate Committee on Foreign Relations, by a vote of 19
to 0, had recommended that the Senate give its advice and consent to U.S. accession to
the 1982 U.N. Convention on the Law of the Sea and ratification of the 1994 Agreement
Relating to the Implementation of Part XI of the Convention.³ The committee on October
14 and 21, 2003, held hearings on the Convention package, which was transmitted to the
Senate on October 7, 1994.⁴ The Senate did not consider the treaty, which was returned^th
to the committee at the end of the Congress. It was not considered in the 109 Congress.
Background
The Convention established a legal regime governing activities on, over, and under
the world’s oceans. In December 1982, when the Convention was opened for signature,
the United States and some other industrialized countries did not sign the Convention,
maintaining that important changes were needed to the parts that dealt with deep seabed
resources beyond national jurisdiction. After consultations, an agreement relating to Part
XI of the Convention was adopted on July 28, 1994. The Convention entered into force
on November 16, 1994, and the Agreement, on July 28, 1996. As of October 26, 2007,
the Convention had 155 parties and the Agreement, 131 parties.
Issues Since October 2003 — and the Senate Response
The issues raised in the 1982-1994 period dealt primarily with the regime and
international organization associated with the deep seabed area beyond national
jurisdiction. Much of the debate during and since the October 2003 hearings related to
more traditional law of the sea topics.⁵ They included use of the military activities
exemption in application of the mandatory dispute settlement machinery; protection of
U.S. security interests in the face of current terrorist threats; delimitation of the
continental shelf beyond 200 nautical miles; and a concern that continued absence by the
United States in the bodies⁶ set up by the Convention and Agreement will act negatively
against the interests of the United States.
The Senate Foreign Relations Committee fashioned a resolution of advice and
consent that included in section 2, declarations under Articles 287 and 298 of the
Convention regarding settlement of disputes; in section 3, 24 declarations or

² Available at [http://www.whitehouse.gov/news/releases/2007/05/print/20070515-2.html]
³ See S. Ex. Rpt. 108-10, March 11, 2004.
⁴ Treaty Document 103-39; a link to this text is available at [http://lugar.senate.gov/sfrc/sea.html].
⁵ In addition to the Senate Foreign Relations Committee, hearings were held by the Senate
Environment and Public Works Committee on March 23, 2004 (S. Hrg. 108-498); the Senate
Armed Services Committee on April 8, 2004 (published in 2005); the Senate Select Committee
on Intelligence on June 8, 2004; and the House International Relations Committee on May 12,

2004 (Serial No. 108-136).

⁶ The International Seabed Authority and its Councils, the Commission on the Limits of the
Continental Shelf, and the International Tribunal for the Law of the Sea.

understandings under Article 310 of the Convention; and in section 4, five paragraphs that
dealt with amendment of the Convention.
Article 287 (1) of the Convention allows for a declaration on the dispute settlement
machinery a State Party chooses to use in disputes concerning the interpretation or
application of articles of the Convention. Under the committee-recommended resolution,
the United States would choose a special arbitral tribunal under Annex VIII in disputes
relating to “fisheries, protection and preservation of the marine environment, marine
scientific research, and navigation, including pollution from vessels and by dumping.”
The United States would choose an arbitral tribunal under Annex VII for the settlement
of disputes not covered in the above list.
Article 298 (1) of the Convention provides that a State may declare it does not accept
any of the procedures for dispute settlement in any of three types of disputes. Under
section 2 of the recommended resolution of advice and consent, the United States would
submit a declaration exempting itself from all three categories of disputes — those
concerning the interpretation or application of Article 15 on the territorial sea, Article 74
on the exclusive economic zone and Article 83 on the continental shelf relating to
boundary delimitations or those involving historic bays or titles; disputes concerning
military activities and disputes concerning certain law enforcement activities; and disputes
in which the United Nations Security Council is exercising its U.N. Charter functions.
The U.S. declaration would also state the U.S. understanding that under Article 298
(1)(b), “each State Party has the exclusive right to determine whether its activities are or
were ‘military activities’ and that such determinations are not subject to review.”
Article 310 provides that a State may make declarations or statements aimed at
harmonizing its laws and regulations with the Convention, provided that these
declarations or statements do not “purport” to exclude or to modify the legal effect of the
Convention’s provisions in their application to that State. Section 3 of the recommended
resolution set out declarations or statements of understanding in 24 separate paragraphs.
Some of these reiterated Convention language to emphasize this country’s understanding
and interpretation of that language. These included such topics as the right of innocent
passage; transit passage defined; high seas freedoms in the exclusive economic zone;
marine scientific research; the sovereign right of a State to impose and enforce conditions
for entry of foreign vessels into its ports, rivers, harbors, and so forth; a coastal State’s
exclusive right to determine the allowable catch of living resources in its exclusive
economic zone; and “Sanitary laws and regulations” in Article 33 to protect human health
from pathogens being introduced to the territorial sea.
Section 4 listed five paragraphs of conditions, all related to the amendment process
for the Convention, requiring the President to provide copies of proposed amendments
to the Senate Committee on Foreign Relations and to consult with the committee in
certain circumstances. Two conditions would be included in the U.S. instrument of
accession, to the effect that the President shall submit all amendments to the Senate for
its advice and consent and that the United States shall take necessary steps to ensure that
certain amendments are adopted in conformity with the treaty clause of the Constitution.

Other Issues of Concern to Congress
Since the committee vote, numerous expressions of opposition to and support for
U.S. adherence to the Convention and Agreement have been published. During his March
23, 2004, statement to the Senate Environment and Public Works Committee, Assistant
Secretary of State for Oceans and International Environmental and Scientific Affairs John
F. Turner set forth Administration responses to numerous opposing arguments.⁷
Proponents raised at least two sets of arguments to support “prompt” Senate approval
of the convention/agreement package. They maintained that U.S. adherence to and
participation in the Convention would protect U.S. interests during considerations of the
Commission on the Limits of the Continental Shelf and enable the United States to submit
its own limits, with extensive supporting data, and would provide an effective U.S. role
for the submission and consideration of proposed amendments to the Convention.
Commission on the Limits of the Continental Shelf
The mandate of the Commission is to examine and make recommendations on
coastal State extensions of their continental shelf beyond 200 nautical miles. The
Convention gives the coastal State sovereign jurisdiction over the resources, including oil
and gas, of its continental shelf. Under Article 76 of the Convention, a coastal State with
a broad continental margin may establish a shelf limit beyond 200 miles, subject to its
submission of the particulars of the limit and supporting scientific and technical data to
the Commission for review and recommendations. The Commission reviews the intended
limits and supporting documentation, referring to criteria set forth in Article 76, and
makes recommendations to the submitting State. While the “coastal State is not bound
to accept these recommendations,” Article 76, paragraph 8, stipulates that the “limits
established by a coastal State on the basis of these recommendations shall be final and
binding.”⁸ In this way, the Convention process would contribute to the goal of preventing
and reducing the possibility of “dispute and uncertainty.” Eight submissions have been
made since December 2001.⁹
The Amendment Process
The Convention’s provisions delayed the possibility of amendment until ten years
after its entry into force, that is until November 2004. Articles 312 through 316 deal with
amendment, with a special process set forth in Articles 314 and 316, paragraph 5, for any

⁷ See [http://www.state.gov/g/oes/rls/rm/2004/30723pf.htm]. See also statements before the
Senate Armed Services Committee on April 8, 2004, by William H. Taft IV, Admiral William
L. Schachte, and John Norton Moore, all of which contain responses to opposition comments.
⁸ See Treaty Document 103-39, pages 56-57 (in report by the State Department).
⁹ The Russian Federation made the first submission in December 2001. Brazil and Australia
made submissions in 2004; Ireland in 2005; New Zealand, Norway plus a joint submission by
France, Ireland, Spain, and the United Kingdom in 2006; and France in 2007. For the texts, see
under Submissions and Recommendations at [http://www.un.org/Depts/los/clcs_new/clcs_home.
htm].

Convention provisions relating exclusively to activities in the Area, defined as the seabed
and ocean floor and subsoil thereof beyond the limits of national jurisdiction.
For amendments to provisions not relating to activities in the Area, the Convention
sets forth two procedural options leading to adoption after a proposed amendment is sent
by a State Party to the U.N. Secretary-General:
^!proposal of amendment (s), with a request that a conference be held to
consider and adopt the proposed amendment. The convening of such a
conference would require favorable responses from at least half of the
States Parties within 12 months of the request. (Article 312)
^!proposal of amendment (s), with a request for adoption by a “simplified
procedure” without convening a conference. If, within 12 months of this
request, “a State Party objects to the proposed amendment or to ... its
adoption by the simplified procedure, the amendment shall be considered
rejected.” If, however, within the same time period, there has been no
objection, the proposed amendment “shall be considered adopted.”
(Article 313)
In either case, entry into force of an amendment after adoption requires ratification or
accession by two-thirds or by 60 States Parties, whichever is the greater number.
Amendments to provisions relating to activities in the Area require a different
procedure. Proposed amendments are to be sent to the Secretary-General of the
International Seabed Authority (ISA). The proposed amendment must be approved by the
ISA Assembly after prior approval (by consensus) by the ISA Council. Once approved,
the proposed amendment “shall be considered adopted.” Entry into force of any adopted
amendment requires ratification or accession by three fourths of States Parties, after which
it “shall enter into force for all [emphasis added] States Parties.”
The United States would need to be a Party to the Convention in order to block what
it might consider objectionable amendments in two of the three approaches discussed.
Under the conference option, it might, as an observer, muster sufficient influence on some
States Parties to affect a proposed amendment.
U.S. National Security Interests
Some opponents to U.S. adherence to the treaty package have suggested that such
adherence is contrary to U.S. national security interests, especially in a post-September
11 world. They maintained that under the treaty the United States would not be able to
carry out counter-terrorism programs such as the Proliferation Security Initiative (PSI)
under which shipments of weapons of mass destruction (WMD), etc., would be
interdicted. Referring to Articles 92 and 110 of the Convention, they stated that the treaty
does not explicitly guarantee a right to board or interdict when evidence of terrorist
intentions through WMD is involved.¹⁰

¹⁰ The Proliferation Security Initiative was started by President Bush May 31, 2003, and framed
in a Statement of Interdiction Principles, September 4, 2003. PSI participating states undertake
(continued...)

Legal Adviser William H. Taft IV during April 8, 2004, hearings before the Senate
Armed Services Committee addressed the relationship between the Convention and PSI.
“The Convention will not affect our efforts under the PSI to interdict vessels suspected
of engaging in the proliferation of weapons of mass destruction.” He added,
^T^h^e^Co^nve^ntⁱ^o^{n r}^e^c^o^gni^z^e^s^num^e^r^o^u^{s l}^e^ga^l^b^a^se^{s fo}^r^t^a^ki^{ng e}ⁿ^fo^r^c^e^m^eⁿ^t^a^c^tⁱ^oⁿ^a^g^aⁱ^nst^ve^sse^l^s
^an^d^aircraf^t^s^u^s^p^{ected of}^en^g^a^gⁱⁿ^gⁱⁿ^prolif^eration^of^w^eapon^s^of^m^a^s^s^des^t^ru^ction^,^f^o^r^ex^am^ple,
^ex^clu^s^iv^{e port an}^{d coas}^{tal State j}^u^ris^d^ictionⁱⁿⁱⁿ^t^e^rn^{al w}^a^ters^an^{d n}^a^tion^a^{l air s}^p^{ace; coas}^tal
^{State j}^u^ris^d^ictionⁱⁿ^th^{e territorial s}^{ea an}^{d con}^tig^u^o^u^s^zon^e^{; ex}^clu^s^iv^{e f}^l^ag^{State j}^u^ris^d^iction
^ov^{er v}^e^s^s^e^ls^on^th^{e h}ⁱ^g^h^s^eas^(w^hⁱ^ch^th^{e f}^l^ag^{State m}^a^y^,^eith^er^by^g^eⁿ^e^ral^ag^reem^en^tⁱⁿ^adv^aⁿ^c^e
^{or approv}^alⁱⁿ^res^pon^s^e^t^o^a^sp^eci^fⁱ^{c requ}^es^t^,^w^a^iv^{e in}^f^a^v^o^{r of}^oth^e^{r States}^{); an}^{d u}ⁿⁱ^v^e^rs^al
^j^u^rⁱ^sdⁱ^c^tⁱ^o^{n o}^v^e^r^st^a^t^e^l^e^{ss ve}^sse^l^s^.^Fur^t^he^r^,^no^t^hⁱ^ngⁱⁿ^t^h^e^Co^nve^ntⁱ^oⁿⁱ^m^p^aⁱ^r^s^t^h^eⁱ^nhe^r^e^nt^rⁱ^ght
^ofⁱⁿ^di^vⁱ^du^al^{or col}^l^ectⁱ^v^{e s}^e^l^f^-^d^ef^en^s^e^(a^poiⁿ^t^w^hⁱ^c^hⁱ^s^reaf^fⁱ^rm^{ed i}ⁿ^t^h^{e propos}^{ed R}^e^s^o^l^u^tⁱ^oⁿ
^of^A^d^vⁱ^{ce an}^{d C}^oⁿ^s^en^t).
The United States has concluded PSI ship boarding agreements with seven nations.¹¹
Among other statements made by Convention opponents were the following: “The
treaty effectively prohibits two functions vital to American security: collecting
intelligence in, and submerged transit of, territorial waters.” AND “The treaty’s Articles
19 and 20 attempt explicitly to regulate intelligence and submarine activities in what are
defined as ‘territorial’ seas. These are activities vital to U.S. security that we should
ensure remain unrestricted at all costs.”¹²
Taft stated that Articles 19 and 20 do not prohibit intelligence activities or
“submerged transit” in the territorial sea of other States. He continued,
^T^h^{e C}^oⁿ^v^eⁿ^tⁱ^oⁿ^’^s^provⁱ^sⁱ^oⁿ^s^onⁱⁿ^nocen^t^pas^s^a^g^e^{are v}^e^ry^sⁱ^mⁱ^l^a^{r t}^o^artⁱ^c^l^e^{14 i}ⁿ^t^h^{e 1958}
^Coⁿ^v^eⁿ^tioⁿ^oⁿ^th^{e T}^e^r^r^ito^rⁱ^{al Sea an}^d^th^{e Co}ⁿ^tig^u^o^u^s^Z^oⁿ^e^,^t^o^w^hⁱ^c^h^th^{e Un}^ited^{States is a}
^part^y^.^(T^h^e^{1982 C}^oⁿ^v^eⁿ^tⁱ^oⁿⁱ^sⁱⁿ^f^act^m^o^{re f}^a^v^o^rabl^{e t}^h^an^t^h^{e 1958 C}^oⁿ^v^eⁿ^tⁱ^oⁿ^{....) A}^s^hⁱ^p
^doesⁿ^o^t..^.^en^j^o^y^th^{e rig}^h^t^ofⁱⁿⁿ^o^cen^{t pas}^s^a^g^e^if^{, in}^th^{e cas}^{e of}^{a s}^u^bm^arin^{e, it n}^a^vⁱ^g^a^tes
^s^u^bm^erg^e^{d or if}^{, in}^th^{e cas}^{e of}^an^y^s^h^ip^,ⁱ^t^e^ngag^e^sⁱⁿ^an^{act in}^th^{e territorial s}^{ea aim}^e^{d at}
^co^llectin^gⁱⁿ^f^o^r^m^atioⁿ^to^th^{e p}^r^ej^u^d^{ice o}^f^th^{e d}^e^f^eⁿ^s^{e or s}^ecu^rity^of^th^{e coas}^{tal State, bu}^{t s}^u^ch
^activ^{ities ar}^{e n}^o^{t p}^r^o^h^ib^ited^b^y^th^{e Co}ⁿ^v^eⁿ^tioⁿ^.^Iⁿ^th^{is r}^e^sp^{ect, th}^{e Co}ⁿ^v^eⁿ^tioⁿ^m^a^k^e^{s n}^o^ch^an^g^e
ⁱⁿ^th^{e situ}^atioⁿ^th^{at h}^a^{s ex}^isted^f^o^r^m^aⁿ^y^y^ear^{s an}^d^uⁿ^d^er^w^h^ich^w^e^o^p^e^r^a^{te to}^d^a^y^.
In summary, the question of whether the Senate will consider the Convention in 2007
depends on whether the committee considers and possibly recommends it for positive
action. The President’s statement on May 15, 2007, may be a factor in the Senate’s
considerations. If the treaty is not considered or withdrawn, it will remain pending in the
committee.

¹⁰ (...continued)
effective measures for interdicting the transfer or transport of WMD, their delivery systems, and
related materials to and from states and non-state actors of proliferation concern, consistent with
national legal authorities and relevant international law and frameworks, including the U.N.
Security Council. See Department of State at [http://www.state.gov/t/np/c10390.htm].
¹¹ The seven are Liberia, Marshall Islands, and Panama in 2004; Croatia, Cyprus, and Belize in

2005; and Malta in 2007.

¹² See Gaffney, Frank J., Jr. “John Kerry’s Treaty.” National Review Online, February 26, 2004,
at [http://www.nationalreview.com] for the first quote and “Deep-six this treaty.” The
Washington Times, February 24, 2004, for the second quote.