U.N. Convention on the Law of the Sea: Living Resources Provisions

U.N. Convention on the Law of the Sea:
Living Resources Provisions
Updated June 11, 2008
Eugene H. Buck
Specialist in Natural Resources Policy
Resources, Science, and Industry Division



U.N. Convention on the Law of the Sea:
Living Resources Provisions
Summary
The United Nations Convention on the Law of the Sea (LOS Convention) was
agreed to in 1982, but the United States never became a signatory nation. The
current Administration has reiterated support for U.S. accession to the LOS
Convention, and the Senate Committee on Foreign Relations reported the LOS
Convention on December 19, 2007. The Senate may choose to address the
ambiguities of the LOS Convention with its power to make declarations and
statements as provided for in Article 310 of the LOS Convention. Such declarations
and statements can be useful in promulgating U.S. policy and putting other nations
on notice of U.S. interpretation of the LOS Convention.
A possible benefit of U.S. ratification would be the international community’s
anticipated positive response to such U.S. action. In addition, early U.S. participation
in the development of policies and practices of the International Tribunal for the Law
of the Sea, the Commission on the Limits of the Continental Shelf, and the
International Seabed Authority could help to forestall future problems related to
living marine resources. On the other hand, some U.S. interests view U.S.
ratification as potentially complicating enforcement of domestic marine regulations,
and remain concerned that the LOS Convention’s language concerning arbitrary
refusal of access to surplus (unallocated) living resources might be a potential source
of conflict (in addition to concerns about other provisions of the Convention). These
uncertainties reflect the absence of any comprehensive assessment of the social and
economic impacts of LOS implementation by the United States.
This report describes provisions of the LOS Convention relating to living
marine resources and discusses how these provisions comport with current U.S.
marine policy. As presently understood and interpreted, these provisions generally
appear to reflect current U.S. policy with respect to living marine resource
management, conservation, and exploitation. Based on these interpretations, they are
generally not seen as imposing significant new U.S. obligations, commitments, or
encumbrances, while providing several new privileges, primarily related to
participation in commissions developing international ocean policy. No new
domestic legislation appears to be required to implement the living resources
provisions of the LOS Convention. This report will be updated as circumstances
warrant.



Contents
Living Resources Provisions.....................................2
Conservation and Exploitation....................................3
Straddling and Transboundary Fish Stocks..........................4
Highly Migratory Species.......................................5
Marine Mammals..............................................5
Sea Turtles...................................................6
Anadromous Stocks............................................6
Catadromous Species...........................................7
Sedentary Species.............................................7
High Seas....................................................7
Access by Disadvantaged Nations.................................8
Marine Habitat Protection.......................................8
Dispute Settlement for Living Resources...........................9
Conclusion ..................................................10



U.N. Convention on the Law of the Sea:
Living Resources Provisions
On November 16, 1994, the 1982 United Nations Convention on the Law of the
Sea (LOS Convention) entered into force, but not for the United States. The LOS
Convention was the culmination of more than 10 years of intense negotiation.
However, the United States chose not to participate in the LOS Convention in the
early 1980s without changes to parts dealing with deep seabed mineral resources
beyond national jurisdiction. After a 1994 agreement amended parts of the LOS
Convention dealing with deep seabed mineral resources, the LOS Convention,
Annexes, and Agreement package was formally submitted to the U.S. Senate on
October 7, 1994, for advice and consent to accession and ratification (Senate Treaty
Doc. 103-39). More recently, the George W. Bush Administration has reiterated its
support for U.S. accession to the LOS Convention. In the 110th Congress, the LOS
Convention was reported on December 19, 2007, by the Senate Committee on
Foreign Relations (S.Exec.Rept. 110-9).
The LOS Convention and a subsequent 1994 Agreement on deep seabed mining
are extensive, complex documents touching on a wide range of policy issues and U.S.
interests. From the perspective of the United States, some of the most significant
areas addressed by the Convention deal with naval power and maritime commerce,
coastal state interests, marine environment protection, marine scientific research, and
international dispute settlement.1 A number of issues may arise during any Senate
consideration of the LOS Convention, including the question of whether the 1994
Agreement adequately addresses the deep seabed portions of the Convention that
were at the core of U.S. opposition to the original LOS Convention. Policy issues
relating to areas beyond living resources that are likely to draw Senate attention are
discussed more fully in CRS Report RS21890 and include:
!the dispute settlement process set forth in the LOS Convention and the U.S.
declarations on dispute settlement;
!the relationship between U.S. law and various parts of the LOS Convention
regarding use of the world’s oceans;
!U.S. acceptance of the LOS Convention/Agreement interpretation and
application of the common heritage of mankind concept;
!the provisional application procedures as a precedent in the U.S. treaty
process;


1Additional information on other provisions of the Convention is available in CRS Report
RS21890, The U.N. Law of the Sea Convention and the United States: Developments Since
October 2003, by Marjorie Ann Browne.

!the nature of U.S. commitments undertaken by a decision of the International
Seabed Authority (ISA) Council — what does a Council decision commit the
U.S. government to do?
!should Congress have a role and if so, under what circumstances; and
!the cost and financing of the ISA and U.S. participation therein, now and in
the future.
The remainder of this report focuses on the living marine resource provisions of the
LOS Convention.
Living Resources Provisions
The living resources (i.e., fish, shellfish, sea turtles, and marine mammals)
provisions of the LOS Convention recognize international interdependence on these
resources and provide a framework for their cooperative and sustainable
management. These provisions, comprising Articles 61 through 73, deal specifically
with:
!conservation (Article 61),
!exploitation (Article 62),
!transboundary and straddling stocks (Article 63),
!highly migratory stocks (Article 64),
!marine mammals (Article 65),
!anadromous stocks (Article 66),
!catadromous stocks (Article 67),
!sedentary species (Article 68),
!rights of landlocked nations (Article 69),
!rights of geographically disadvantaged nations (Article 70),
!non-applicability of Articles 69 and 70 (Article 71),
!restrictions on transfer of rights (Article 72), and
!enforcement by coastal nations (Article 73).
In addition, sedentary continental shelf species are more specifically addressed in
Article 77(4), living resources on the high seas are considered in Articles 116-120,
and marine habitat protection is provided by Articles 192-196. As presently
understood and interpreted, these provisions generally reflect current U.S. policy with
respect to living marine resource management, conservation, and exploitation as
reflected primarily in the Magnuson-Stevens Fishery Conservation and Management
Act.2 However, increasingly complex ocean policy is being formulated within the
LOS regime, without strong U.S. participation to address U.S. concerns.
In support of current U.S. maritime policy, the U.S. government, particularly the
U.S. Coast Guard, currently expends considerable resources enforcing U.S. and
international fishing and living resources laws in the U.S. Exclusive Economic Zone
(EEZ) off both the Atlantic and Pacific coasts as well as Hawaii, Howland-Baker,
Guam, Northern Marianas Islands, Puerto Rico, and other remote U.S. EEZ areas and


216 U.S.C. §§ 1801, et seq.

in the high seas drift net area of the western Pacific.3 Recognizing the existing level
of U.S. commitment and based on current U.S. interpretation, the living resource
provisions of the LOS Convention are generally not seen as imposing significant new
U.S. obligations, commitments, or encumbrances involving living resources and their
management. The LOS Convention could provide several new privileges, primarily
related to participation in commissions developing international ocean policy. Some
measure of increased stability in international living marine resource policy can be
inferred as a beneficial aspect of U.S. participation in the LOS regime. It appears that
no new domestic legislation would be required to implement the living resources
provisions of the LOS Convention.
Conservation and Exploitation
The LOS Convention recognizes the broad authority of a coastal nation over
living resources within its territorial sea and exclusive economic zone (EEZ) to a
maximum of 200 miles seaward from the baselines used to measure the territorial
sea.4 In managing living resources, coastal nations are to determine allowable
catches and promote optimal resource use. To this end, drafters of the LOS
Convention were intentionally ambiguous in their attempt to make the LOS
Convention acceptable to a broad range of constituents. Thus, the terms maximum
sustainable yield (Article 61) and optimum utilization (Article 62) are open to broad
interpretation and may require further definition to provide additional guidance on
how sustainable management of living marine resources is to be attained.5
Except for Article 65, the LOS Convention shows some bias toward optimal
exploitation of the resource, with little explicit recognition of non-consumptive
management objectives which might reduce harvests to substantially less than
optimal or maximum sustainable yield levels.6 Articles 61(2) and 61(3) do provide
a mandatory obligation to ensure that living resources are not endangered by over-
exploitation and that threatened species are restored to levels which can produce their
maximum sustainable yield. In addition, the phrase “as qualified by relevant
environmental and economic factors,” appearing in Article 61(3), provides a basis for
harvesting at rates both above or below the maximum sustainable yield. However,
the subsequent examples of how this qualification is to be interpreted focus on ways
to protect against overharvesting or possible justification for exceeding the maximum
sustainable yield, rather than providing any explicit acknowledgment that valid
reasons may exist for refraining altogether from harvesting to achieve non-
consumptive goals (e.g., tourism in reef environments or biodiversity conservation)


3The Coast Guard’s FY2009 budget request includes $719.1 million for domestic fisheries
enforcement in the U.S. EEZ and $117.6 million for foreign fisheries enforcement protecting
the U.S. EEZ boundary and enforcing international fishery agreements.
4However, coastal nation sovereign rights over sedentary species (see “Sedentary Species,”
below) may extend beyond 200 miles, to the extent of the continental shelf.
5With a view to this broad interpretation, some nations have used the maximum sustainable
yield and optimum utilization language to justify commercial whaling.
6The approach taken in Article 65 of the LOS Convention explicitly recognizes the rights
of coastal nations to prohibit the exploitation of marine mammals.

or to respond to moral/ethical concerns (e.g., large sharks, dolphins, and whales
should not be killed). Regardless, determination of allowable catch within a coastal
nation’s EEZ is not subject to compulsory procedures leading to binding dispute
settlement.
Under the LOS Convention, if a coastal nation is unable to harvest the entire
allowable catch, other nations must be given access to these resources, subject to
appropriate terms and conditions. Resource populations are to be managed such that
they can produce harvests at maximum sustainable yield levels. The U.S. Fishery
Conservation and Management Act of 1976 (16 U.S.C. §§ 1801, et seq., now known
as the Magnuson-Stevens Act) was crafted to parallel closely most of the draft LOS
Convention’s provisions for living resources.7
The LOS Convention, in Article 61(4), encourages attention to associated or
dependent species. If interpreted narrowly, this might encompass incidental bycatch
concerns by calling for consideration of these associated or dependent species so that
their reproduction is not seriously threatened. More broadly, however, attention to
ocean ecosystems would reflect the highly complex web of biological relationships
where food chain and commensal associations create intricate interdependencies.
Some marine conservation regimes, such as those under the Convention on the
Conservation of Antarctic Marine Living Resources, are sensitive to these concerns
and attempt to manage living marine resources from an “ecosystem” approach.
Straddling and Transboundary Fish Stocks
Straddling fish stocks (ranging between national EEZs and international waters)
and transboundary stocks are to be managed cooperatively through bilateral or
multilateral international agreements involving coastal nations through whose waters
these fish stocks range as well as any nations fishing these stocks in international
waters. The United States acted in concert with these provisions by negotiating the
Convention on the Conservation and Management of Pollock Resources in the
Central Bering Sea (Senate Treaty Doc. 103-27) to govern harvest and management
of fish stocks migrating between international waters in the Bering Sea (the “donut
hole”) and adjacent waters under national jurisdiction.8 An example of an effective
bilateral agreement on a transboundary fish stock is the 1953 Convention for the
Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea
between the United States and Canada. Concerns remain over attempts to
cooperatively manage anchovy fisheries along the United States-Mexico Pacific
boundary. The 1995 Agreement for the Implementation of the Provisions of the
United Nations Convention of the Law of the Sea of 10 December 1982 Relating to
the Conservation and Management of Straddling Fish Stocks and Highly Migratory


7Initial work on the LOS Convention began in 1958, so the essence of many provisions had
been agreed to by 1976, when the Magnuson-Stevens Act was enacted.
8However, the Central Bering Sea Convention does not provide for compulsory dispute
settlement. The Senate agreed to a resolution of advice and consent to ratification of this
convention on October 7, 1994. This agreement entered into force on December 8, 1995.

Fish Stocks9 (Senate Treaty Doc. 104-24) more specifically addresses concerns for
these stocks in a manner consistent with the LOS Convention.10
Highly Migratory Species
Prior to 1990, the U.S. position on certain highly migratory species was contrary
to that of the LOS Convention in that the United States did not claim national
jurisdiction over tunas. However, the Fishery Conservation Amendments of 1990
(P.L. 101-627) modified U.S. policy to be consistent with the LOS Convention by
amending the Magnuson-Stevens Act to extend national jurisdiction to include tunas.
Article 64 of the LOS Convention calls for cooperative management of highly
migratory species to ensure their conservation and promote their optimum harvest,
within and beyond the EEZ. The United States is party to agreements in both the
Atlantic and Pacific consistent with the provisions of Article 64. In the Pacific, the
1950 Convention Between the United States of America and the Republic of Costa
Rica for the Establishment of an Inter-American Tropical Tuna Commission serves
this purpose by involving six nations. The 1966 International Convention for the
Conservation of Atlantic Tunas involves 22 nations. The 1995 Straddling Stocks
Agreement more specifically addresses concerns for highly migratory stocks in a
manner consistent with the LOS Convention and involves 36 nations. More recently,
the Convention on the Conservation and Management of Highly Migratory Fish
Stocks in the Western and Central Pacific Ocean was signed by 19 nations, but has
not yet entered into force. Annex I to the LOS Convention provides a list of species
designated as highly migratory. The United States is a signatory to these four
agreements.
Marine Mammals
Article 65 of the LOS Convention provides that coastal nations may manage and
regulate marine mammals more strictly than otherwise provided by the LOS
Convention. International cooperation for conservation is mandated, with specific
direction that cetaceans (i.e., whales and dolphins) be conserved, managed, and
studied internationally. Article 120 extends this understanding to marine mammals
on the high seas. Whales and dolphins are identified in the list of highly migratory
species provided in Annex I to the LOS Convention.
Article 65 calls for cooperation with a view to “conservation.” In the case of
cetaceans, nations are to work through “appropriate international organizations” for
their conservation. Protection for most cetaceans is provided currently through a
moratorium on commercial whaling imposed by the International Whaling
Commission (IWC) under the authority of the International Convention for the11
Regulation of Whaling. Additional protection for most of the large whales, in the


9Hereinafter referred to as the “Straddling Stocks Agreement.”
10The Senate agreed to a resolution of advice and consent to ratification of this Agreement
on June 27, 1996. This Agreement entered into force on December 11, 2001.
11Additional information on how this convention functions is available in out-of-print CRS
(continued...)

form of trade restrictions, derives from their inclusion in Appendices of the 1973
Convention on International Trade in Endangered Species of Wild Fauna and Flora
(C ITES ). 12
Sea Turtles
Sea turtles are considered indirectly under the LOS Convention, because they
are associated with harvested species,13 and because most sea turtle species are
recognized internationally as being either threatened or endangered. Article
61(2)/61(4) provides some protection for threatened or endangered populations as
well as species associated with harvested species. However, the “shall take into
consideration” language of Article 61(4) does not mandate strong protective
measures. Article 194(5) encourages habitat protection beneficial to threatened and
endangered species. Regardless of LOS Convention provisions and similar to whales
discussed above, extensive protection for sea turtles, in the form of trade restrictions,
derives from their inclusion in the Appendices of CITES.
Anadromous Stocks
Anadromous species spend most of their lives in the ocean, but enter freshwater
to spawn. Salmon, sturgeon, and striped bass are some of the anadromous species
of interest to the United States. The LOS Convention assigns primary interest in and
responsibility for anadromous fish stocks to the nations in whose rivers the stocks
originate. Fishing for anadromous stocks is prohibited on the high seas, except in
cases where economic dislocation might result. Coastal nations through whose
waters anadromous fish migrate are required to cooperate with the nations wherein
the anadromous stocks originated. Enforcement of regulations concerning
anadromous fish stocks beyond the EEZ is to be accomplished through negotiated
agreement. The United States actively participates in a cooperative bilateral salmon
agreement with Canada as well as broader regional agreements for both Atlantic and
Pacific stocks.14
Catadromous Species
Catadromous species spend most of their lives in freshwater, but enter the ocean
to spawn. American eels are the primary catadromous species of interest to the


11(...continued)
Report 97-55F, Norwegian Commercial Whaling: Issues for Congress, by Carl W. Ek and
Eugene H. Buck, available from either of the authors.
12Additional information on CITES is available in CRS Report RL32751, The Convention
on International Trade in Endangered Species of Wild Fauna and Flora (CITES):
Background and Issues, by Pervaze A. Sheikh and M. Lynne Corn.
13Sea turtles may drown when caught in fishing gear.
14Treaty Between the Government of the United States of America and the Government of
Canada Concerning Pacific Salmon, Ottawa, 1985 (TIAS 11091); Convention for the
Conservation of Salmon in the North Atlantic Ocean, Reykjavik, 1982 (TIAS 10789); and
Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean,
Moscow, 1992 (Senate Treaty Doc. 102-30).

United States. The LOS Convention gives the coastal nations where these species
spend most of their lives the responsibility for managing them, and prohibits
harvesting them on the high seas. International cooperation is required where these
species migrate through more than one EEZ.
Sedentary Species
Sedentary species are addressed in Article 77(4) of the LOS Convention.
Coastal nation jurisdiction over sedentary species may extend beyond 200 miles, to
the extent of the continental shelf (as defined in Article 76). Although the meaning
of sedentary is defined, no listing of exactly which species are to be considered
sedentary is provided in the LOS Convention. Thus, controversy may arise over
access to certain species,15 and dispute resolution provided by the LOS Convention
may become necessary. Given the current differences of opinion and limited data,
additional scientific research may be required to better understand the sedentary
nature of certain shellfish, such as scallops.
Protection for sedentary species is further promoted by Article 136, which states
that the seabed, ocean floor, and subsoil beyond the limits of national jurisdiction are
the common heritage of humankind. This implies an obligation to protect the
seamounts and hydrothermal vents that support unique ecosystems. This view
receives additional support from Article 145, on protecting the marine environment
of the seabed, ocean floor, and subsoil beyond the limits of national jurisdiction and
conserving the natural resources of the seabed and ocean floor to prevent damage to
flora and fauna.
Other concerns may arise where the continental shelf beyond 200 miles is shared
between nations. For example, how might potential competing Russian and U.S.
interests in developing a snail fishery in the Bering Sea’s enclosed international
waters (the “donut hole”) be handled under the LOS regime?
High Seas
The LOS Convention preserves the freedom to fish on the high seas, subject to
other treaty obligations; the rights, duties, and interests of coastal nations; and an
obligation to cooperate in conserving and managing high seas living resources. The
LOS Convention’s obligation to cooperate in the conservation and management of
high seas living resources would represent a new commitment for the United States,
and is subject to compulsory dispute settlement should conflict arise. The 1995
Straddling Stocks Agreement addresses specific concerns for the conservation and
management of high seas stocks in a manner consistent with the LOS Convention.
In addition, the Senate agreed to a resolution of advice and consent to ratification for
the Agreement to Promote Compliance with International Conservation and
Management Measures by Fishing Vessels on the High Seas (Senate Treaty Doc.


15An example was a July 1994 dispute with Canada when two U.S. fishing vessels harvested
Icelandic scallops on extensions of the Canadian continental shelf outside Canada’s 200-
mile jurisdiction. U.S. officials conceded in November 1994 that the Canadian
interpretation, that Icelandic scallops were sedentary, was correct.

103-24) on October 6, 1994. This agreement, developed under the leadership of the
U.N. Food and Agriculture Organization, reflects the intent of the LOS Convention
and extends its reach by limiting the reflagging of vessels in high seas fisheries. This
agreement entered into force on April 24, 2003, with 27 nations as parties.
Access by Disadvantaged Nations
Although the LOS Convention provides special access rights to surplus living
marine resources within coastal nation EEZs for nearby developing nations that are
landlocked or geographically disadvantaged, no nations meeting these criteria are
believed to exist within the same region as the United States. Regional, subregional,
or bilateral agreements would be negotiated to guide the provision of an equitable
allocation to any such disadvantaged nation. Regardless, it is the coastal nation alone
that determines whether any harvestable surplus exists within its EEZ, and such a
decision may not be challenged through dispute settlement procedures.
Marine Habitat Protection
Article 192 states a general obligation of parties to the LOS Convention to
protect and preserve the marine environment, while Article 193 states that resource
exploitation is to be conducted within this obligation to protect and preserve the
marine environment. This becomes more specific in Article 194(5), which calls
attention to measures “necessary to protect and preserve rare or fragile ecosystems
as well as the habitat of depleted, threatened or endangered species and other forms
of marine life.” Additional protection is provided by Article 61(4), which encourages
attention to bycatch and incidental catch by calling for commercial fishermen to
consider associated or dependent species so that their reproduction not be seriously
threatened. Preventing intentional or accidental introduction of harmful alien or
exotic species by all measures necessary is directed by Article 196. In addition,
Article 206 requires an environmental impact assessment where parties to the LOS
Convention have reasonable grounds for believing that planned activities may lead16
to substantial pollution or harmful changes to the marine environment.
The various articles of the LOS Convention that address pollution are relevant
to marine habitat protection. Parties to the LOS Convention are to prevent, reduce,
and control pollution of the marine environment (Article 194) from land-based
sources (Article 207); seabed activities under their jurisdiction (Article 208); and
vessels (Article 211). The expansion of enforcement rights of port/coastal nations
(Articles 218 and 220) is an important concession to nations, such as the United
States, that have a small merchant fleet and a large and productive EEZ.
Article 136 states that the seabed, ocean floor, and subsoil beyond the limits of
national jurisdiction are the common heritage of humankind, implying an obligation
to protect seamounts and hydrothermal vents that support unique ecosystems. Article

145, on protecting the marine environment of the seabed, ocean floor, and subsoil


16Critics have alleged that U.S. and NATO use of low-frequency active sonar without
adequate impact assessment is a breach of Article 206. See Elena McCarthy, International
Regulation of Underwater Sound (Boston: Kluwer Academic Publishers, 2004).

beyond the limits of national jurisdiction from pollution as well as protecting and
conserving the natural resources of the seabed and ocean floor to prevent damage to
flora and fauna, provides additional support for protection of these unique habitats.
Dispute Settlement for Living Resources
Article 297(3)(b) offers assurances that domestic EEZ fisheries matters cannot
be forced to undergo compulsory dispute settlement proceedings leading to binding
decisions under the LOS Convention:
... the coastal State shall not be obliged to accept the submission to such
settlement [compulsory procedures leading to binding decisions] of any dispute
relating to its sovereign rights with respect to the living resources in the
exclusive economic zone or their exercise, including its discretionary powers for
determining the allowable catch, its harvesting capacity, the allocation of
surpluses to other States and the terms and conditions established in its
conservation and management laws and regulations.
Article 297(3)(b) does provide that disputes can be submitted to conciliation when
(1) a coastal nation has failed to properly conserve and manage EEZ living resources
such that they become seriously endangered; (2) a coastal nation has arbitrarily
refused to determine allowable catches and capacity to harvest species desired by a
foreign nation; or (3) a coastal nation has arbitrarily refused to allocate a declared
surplus in a living resource to any foreign nation. However, Article 297(3)(c)
prohibits a conciliation commission from substituting its discretion for that of the
coastal nation. Conciliation procedures are outlined in Article 7(2) of Annex V,
which states that a conciliation commission’s report, including its conclusions and
recommendations, is not binding.
The history of the International Tribunal for the Law of the Sea (ITLOS),17
however, merits scrutiny. Article 292, providing for the prompt release of vessels,
allows for application to the ITLOS for the prompt release of any vessel flagged by
one member that is detained by another member. The vast majority of the cases
ITLOS has heard so far have been applications for the prompt release of fishing
vessels that have been accused of unauthorized fishing in the EEZ of a member.18
Some observe that these cases may really represent fishery disputes in disguise.19


17The International Tribunal for the Law of the Sea, composed of 21 independent members,
is an independent judicial body established by the LOS Convention to adjudicate disputes
arising out of the interpretation and application of the LOS Convention. Additional
information is available at [http://www.itlos.org/start2_en.html].
18For further discussion of ITLOS actions, see the testimony of Professor Bernard H.
Oxman, University of Miami School of Law, before the Senate Committee on Foreign
Relations on Oct. 4, 2007, available at [http://foreign.senate.gov/testimony/2007/Oxman
T e stimony071004.pdf].
19Howard S. Schiffman, “UNCLOS and Marine Wildlife Disputes: Big Splash or Barely a
Ripple?” Journal of International Wildlife Law and Policy, v. 4, no. 3 (2001): 257-278.

Conclusion
As presently understood and interpreted, the LOS provisions generally appear
to reflect current U.S. policy with respect to living marine resource management,
conservation, and exploitation. Based on these interpretations, the living resource
provisions of the LOS Convention are generally not seen as imposing significant new
U.S. obligations, commitments, or encumbrances involving living resources and their
management. One possible benefit of U.S. ratification would be the international
community’s anticipated positive response to such U.S. action. In addition, U.S.
accession to the LOS Convention would provide the United States the opportunity
to nominate a representative to the Commission on the Limits of the Continental
Shelf and to seek clarification of U.S. continental shelf boundaries, thus addressing
concerns related to shared continental shelf areas such as the Bering Sea’s donut hole
and in the Chukchi Sea.20 Furthermore, accession could benefit the United States by
allowing U.S. participation in the International Seabed Authority and appointment
of U.S. representatives to its various subsidiary bodies.21
As the status of the International Whaling Commission (IWC) is currently in
dispute, some suggest that the United States, if ratifying the LOS Convention, might
offer a declaration recognizing the IWC as the “appropriate international
organization” to regulate cetaceans as a means to marginalize any competing
organizations that might seek to offer an alternative model of cetacean management.
Such U.S. action might empower and energize the IWC, an organization that the
United States has worked hard to develop as a key marine conservation body.
Moreover, U.S. accession to the LOS Convention would provide the United States
with the opportunity to nominate national representatives as judges on the ITLOS and
to fully participate in developing the practices of this important global body.
On the other hand, some U.S. interests view U.S. ratification as potentially
complicating enforcement of domestic marine regulations. These uncertainties
reflect the absence of any comprehensive assessment of the social and economic
impacts of LOS implementation by the United States.22 Although early ITLOS cases
do not indicate a problem, some in the United States remain concerned that the LOS
Convention’s language concerning arbitrary refusal of access to surplus (unallocated)
living resources might be a potential source of conflict. Additional concerns
surround whether and to what extent the United States could regulate ballast water
discharges to combat invasive species,23 supplemental to and in concert with


20For information on the possible redefinition of the extent of the U.S. continental shelf in
the Chukchi Sea, see [http://www.ens-newswire.com/ens/feb2008/2008-02-11-01.asp].
21Additional information on the International Seabed Authority is available at [http://www.
isa.org.j m/en/home].
22Additional information on concerns over other provisions of the Convention is available
in CRS Report RS21890, The U.N. Law of the Sea Convention and the United States:
Developments Since October 2003, by Marjorie Ann Browne.
23Additional information on ballast water management is available in CRS Report RL32344,
Ballast Water Management to Combat Invasive Species, by Eugene H. Buck.

international action taken by the International Maritime Organization (IMO).24 If the
LOS Convention is interpreted such that invasive species are covered under the
Convention’s broad definition of pollution, the United States (and other coastal
nations) could be constrained as to what preventive measures could be imposed on
ships operating outside our territorial sea.25
Proponents of the LOS Convention maintain that U.S. participation in the
development of policies and practices of the International Tribunal for the Law of the
Sea, the Commission on the Limits of the Continental Shelf, and the International
Seabed Authority could help to forestall future problems related to living marine
resources. In addition, they indicate that the Senate could choose to address some of
the intentional ambiguities of LOS Convention drafters with its power to make
declarations and statements as provided for in Article 310.26 Such declarations and
statements can be useful in promulgating U.S. policy and putting other nations on
notice of U.S. interpretation of the LOS Convention. A range of issues where U.S.
interpretive statements might be helpful was discussed at a Senate Committee on
Foreign Relations hearing on October 21, 2003.27


24 The IMO adopted the International Convention for the Control and Management of Ships’
Ballast Water and Sediments on February 13, 2004. This convention will enter into force
12 months after ratification by 30 nations, representing 35% of the world merchant shipping
tonnage.
25For further discussion of this issue, see the testimony of Vice Admiral Roger T. Rufe, Jr.,
U.S. Coast Guard (ret.) before the Senate Committee on Foreign Relations on Oct. 21, 2003,
available at [http://foreign.senate.gov/testimony/2003/RufeTestimony031021.pdf].
26Although reservations would have a more substantial legal effect, they are prohibited by
Article 309.
27Specific issues pertaining to living resources and their marine habitat were discussed in
the testimony cited in footnote 25, above.