Law of the Sea Treaty
United Nations Convention on the Law of the Sea
Treaty Number: 103-39
Transmitted: October 06, 1994
Short Title: United Nations Convention on the Law of the Sea
Type: International Law and Organization
Countries: n/a
Formal Title: United Nations Convention on the Law of the Sea , with Annexes, done at Montego Bay, December 10, 1982 (the "Convention"), and the Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, with Annex, adopted at New York, July 28, 1994 (the Agreement"), and signed by the United States, subject to ratification, on July 29, 1994.
Senate Executive Report(s): 108-10
Related Document(s): 86-14; Ex.Rept. 108-10
Source: United Nations
Legislative Actions
Floor Action: October 07, 1994 - Received in the Senate and referred to the Committee on Foreign Relations by unanimous consent.
Committee Action: October 14, 2003 - Committee on Foreign Relations. Hearings held.
Committee Action: October 21, 2003 - Committee on Foreign Relations. Hearings held.
Committee Action: February 25, 2004 - Committee on Foreign Relations. Ordered to be reported without amendment favorably.
Floor Action: March 11, 2004 - Reported favorably by Senator Lugar, Committee on Foreign Relations with printed Ex. Rept.108-10 and a resolution of advice and consent to ratification with declarations and understandings. Executive Calendar No. 13.
Resolution: As recommended by the Committee on Foreign Relations:
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO DECLARATIONS AND UNDERSTANDINGS.
The Senate advises and consents to the accession to the United Nations Convention on the Law of the Sea , with annexes, adopted on December 10, 1982 (hereafter in this resolution referred to as the "Convention"), and to the ratification of the Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea , with annex, adopted on July 28, 1994 (hereafter in this resolution referred to as the "Agreement") (Treaty Doc.103-39), subject to the declarations of section 2, to be made under articles 287 and 298 of the Convention, the declarations and understandings of section 3, to be made under article 310 of the Convention, and the conditions of section 4.
SEC. 2. DECLARATIONS UNDER ARTICLES 287 AND 298.
The advice and consent of the Senate under section 1 is subject to the following declarations:
(1) The Government of the United States of America declares, in accordance with article 287(1), that it chooses the following means for the settlement of disputes concerning the interpretation or application of the Convention:
(A) a special arbitral tribunal constituted in accordance with Annex VIII for the settlement of disputes concerning the interpretation or application of the articles of the Convention relating to (1) fisheries, (2) protection and preservation of the marine environment, (3) marine scientific research, and (4) navigation, including pollution from vessels and by dumping; and
(B) an arbitral tribunal constituted in accordance with Annex VII for the settlement of disputes not covered by the declaration in subparagraph (A).
(2) The Government of the United States of America declares, in accordance with article 298(1), that it does not accept any of the procedures provided for in section 2 of Part XV (i ncluding, inter alia, the Sea -Bed Disputes Chamber procedure referred to in article 287(2)) with respect to the categories of disputes set forth in subparagraphs (a), (b), and (c) of article 298(1). The United States further declares that its consent to accession to the Convention is conditioned upon the understanding that, under article 298(1)(b), each State Party has the exclusive right to determine whether its activities are or were "military activities" and that such determinations are not subject to review.
SEC. 3. OTHER DECLARATIONS AND UNDERSTANDINGS UNDER ARTICLE 310.
The advice and consent of the Senate under section 1 is subject to the following declarations and understandings:
(1) The United States understands that nothing in the Convention, including any provisions referring to "peaceful uses" or "peaceful purposes," impairs the inherent right of individual or collective self-defense or rights during armed conflict.
(2) The United States understands, with respect to the right of innocent passage under the Convention, that -
(A) all ships, including warships, regardless of, for example, cargo, armament, means of propulsion, flag, origin, destination, or purpose, enjoy the right of innocent passage;
(B) article 19(2) contains an exhaustive list of activities that render passage non-innocent;
(C) any determination of non-innocence of passage by a ship must be made on the basis of acts it commits while in the territorial sea , and not on the basis of, for example, cargo, armament, means of propulsion, flag, origin, destination, or purpose; and
(D) the Convention does not authorize a coastal State to condition the exercise of the right of innocent passage by any ships, including warships, on the giving of prior notification to or the receipt of prior permission from the coastal State.
(3) The United States understands, concerning Parts III and IV of the Conventi on, that-
(A) all ships and aircraft, including warships and military aircraft, regardless of, for example, cargo, armament, means of propulsion, flag, origin, destination, or purpose, are entitled to transit passage and archipelagic sea lanes passage in their "normal mode";
(B) "normal mode" includes, inter alia-
(i) submerged transit of submarines;
(ii) overflight by military aircraft, including in military formation;
(iii) activities necessary for the security of surface warships, such as formation steaming and other force protection measures;
(iv) underway replenishment; and
(v) the launching and recovery of aircraft;
(C) the words "strait" and "straits" are not limited by geographic names or categories and include all waters not subject to Part IV that separate one part of the high seas or exclusive economic zone from another part of the high seas or exclusive economic zone or other areas referred to in article 45;
(D) the term "used for international navigation" includes all straits capable of being used for international navigation; and
(E) the right of archipelagic sea lanes passage is not dependent upon the designation by archipelagic States of specific sea lanes and/or air routes and, in the absence of such designation or if there has been only a partial designation, may be exercised through all routes normally used for international navigation.
(4) The United States understands, with respect to the exclusive economic zone, that-
(A) all States enjoy high seas freedoms of navigation and overflight and all other internationally lawful uses of the sea related to these freedoms, including, inter alia, military activities, such as anchoring, launching and landing of aircraft and other military devices, launching and recovering water-borne craft, operating military devices, intelligence collection, surveillance and reconnaissance a ctivities, exercises, operations, and conducting military surveys; and
(B) coastal State actions pertaining to these freedoms and uses must be in accordance with the Convention.
(5) The United States understands that "marine scientific research" does not include, inter alia-
(A) prospecting and exploration of natural resources;
(B) hydrographic surveys;
(C) military activities, including military surveys;
(D) environmental monitoring and assessment pursuant to section 4 of Part XII; or
(E) activities related to submerged wrecks or objects of an archaeological and historical nature.
(6) The United States understands that any declaration or statement purporting to limit navigation, overflight, or other rights and freedoms of all States in ways not permitted by the Convention contravenes the Convention. Lack of a response by the United States to a particular declaration or statement made under the Convention shall not be interpreted as tacit acceptance by the United States of that declaration or statement.
(7) The United States understands that nothing in the Convention limits the ability of a State to prohibit or restrict imports of goods into its territory in order to, inter alia, promote or require compliance with environmental and conservation laws , norms, and objectives.
(8) The United States understands that articles 220, 228, and 230 apply only to pollution from vessels (as referred to in article 211) and not, for example, to pollution from dumping.
(9) The United States understands, with respect to articles 220 and 226, that the "clear grounds" requirement set forth in those articles is equivalent to the "reasonable suspicion" standard under United States law .
(10) The United States understands, with respect to article 228(2), that-
(A) the "proceedings" referred to in that paragraph are the same as those referred to in article 228(1), namely those proceedings in respect of any violation of applicable laws and regulations or international rules and standards relating to the prevention, reduction and control of pollution from vessels committed by a foreign vessel beyond the territorial sea of the State instituting proceedings; and
(B) fraudulent concealment from an officer of the United States of information concerning such pollution would extend the three-year period in which such proceedings may be instituted.
(11) The United States understands, with respect to article 230, that-
(A) it applies only to natural persons aboard the foreign vessels at the time of the act of pollution;
(B) the references to "monetary penalties only" exclude only imprisonment and corporal punishment;
(C)8the requirement that an act of pollution be "wilful" in order to impose non-monetary penalties would not constrain the imposition of such penalties for pollution caused by gross negligence;
(D) in determining what constitutes a "serious" act of pollution, a State may consider, as appropriate, the cumulative or aggregate impact on the marine environment of repeated acts of pollution over time; and
(E) among the factors relevant to the determination whether an act of pollution is "serious," a significant factor is non-compliance with a generally accepted international rule or standard.
(12) The United States understands that sections 6 and 7 of Part XII do not limit the authority of a State to impose penalties, monetary or nonmonetary, for, inter alia -
(A) non-pollution offenses, such as false statements, obstruction of justice, and obstruction of government or judicial proceedings, wherever they occur; or
(B) any violation of national laws and regulations or applicable international rules and standards for the prevention, reduction and control of pollution of the marine environment that occurs w hile a foreign vessel is in any of its ports, rivers, harbors, or offshore terminals.
(13) The United States understands that the Convention recognizes and does not constrain the long-standing sovereign right of a State to impose and enforce conditions for the entry of foreign vessels into its ports, rivers, harbors, or offshore terminals, such as a requirement that ships exchange ballast water beyond 200 nautical miles from shore or a requirement that tank vessels carrying oil be constructed with double hulls.
(14) The United States understands, with respect to article 21(2), that measures applying to the "design, construction, equipment or manning" do not include, inter alia, measures such as traffic separation schemes, ship routing measures, speed limits, quantitative restrictions on discharge of substances, restrictions on the discharge and/or uptake of ballast water, reporting requirements, and record-keeping requirements.
(15) The United States understands that the Convention supports a coastal State's exercise of its domestic authority to regulate discharges into the marine environment resulting from industrial operations on board a foreign vessel.
(16) The United States understands that the Convention supports a coastal State's exercise of its domestic authority to regulate the introduction into the marine environment of alien or new species.
(17) The United States understands that, with respect to articles 61 and 62, a coastal State has the exclusive right to determine the allowable catch of the living resources in its exclusive economic zone, whether it has the capacity to harvest the entire allowable catch, whether any surplus exists for allocation to other States, and to establish the terms and conditions under which access may be granted. The United States further understands that such determinations are, by virtue of article 297(3)(a), not subject to binding dispute resolution under the Convention.
(18) The United States understands that article 65 of the Convention lent direct support to the establishment of the moratorium on commercial whaling, supports the creation of sanctuaries and other conservation measures, and requires States to cooperate not only with respect to large whales, but with respect to all cetaceans.
(19) The United States understands that, with respect to article 33, the term "sanitary laws and regulations" includes laws and regulations to protect human health from, inter alia, pathogens being introduced into the territorial sea .
(20) The United States understands that decisions of the Council pursuant to procedures other than those set forth in article 161(8)(d) will involve administrative, institutional, or procedural matters and will not result in substantive obligations on the United States.
(21) The United States understands that decisions of the Assembly under article 160(2)(e) to assess the contributions of members are to be taken pursuant to section 3(7) of the Annex to the Agreement and that the United States will, pursuant to section 9(3) of the Annex to the Agreement, be guaranteed a seat on the Finance Committee established by section 9(1) of the Annex to the Agreement, so long as the Authority supports itself through assessed contributions.
(22) The United States declares, pursuant to article 39 of Annex VI, that decisions of the Seabed Disputes Chamber shall be enforceable in the territory of the United States only in accordance with procedures established by implementing legislation and that such decisions shall be subject to such legal and factual review as is constitutionally required and without precedential effect in any court of the United States.
(23) The United States-
(A) understands that article 161(8)(f) applies to the Council's approval of amendments to section 4 of Annex VI;
(B) declares that, under that article, it intends to accept only a procedure that requires consensus for the adoption of amendments to section 4 of Annex VI; and
(C) in the case of an amendment to section 4 of Annex VI that is adopted contrary to this understanding, that is, by a procedure other than consensus, will consider itself bound by such an amendment only if it subsequently ratifies such amendment pursuant to the advice and consent of the Senate.
(24) The United States declares that, with the exception of articles 177-183, article 13 of Annex IV, and article 10 of Annex VI, the provisions of the Convention and the Agreement, including amendments thereto and rules, regulations, and procedures thereunder, are not self-executing.
SEC. 4. CONDITIONS.
(a) In General.- The advice and consent of the Senate under section 1 is subject to the following conditions:
(1) Not later than 15 days after the receipt by the Secretary of State of a written communication from the Secretary-General of the United Nations or the Secretary-General of the Authority transmitting a proposal to amend the Convention pursuant to article 312, 313, or 314, the President shall submit to the Committee on Foreign Relations of the Senate a copy of the proposed amendment.
(2) Prior to the convening of a Conference to consider amendments to the Convention proposed to be adopted pursuant to article 312 of the Convention, the President shall consult with the Committee on Foreign Relations of the Senate on the amendments to be considered at the Conference. The President shall also consult with the Committee on Foreign Relations of the Senate on any amendment proposed to be adopted pursuant to article 313 of the Convention.
(3) Not later than 15 days prior to any meeting-
(A) of the Council of the International Seabed Authority to consider an amendment to the Convention proposed to be adopted pursuant to article 314 of the Convention, or
(B) of any ot her body under the Convention to consider an amendment that would enter into force pursuant to article 316(5) of the Convention,
the President shall consult with the Committee on Foreign Relations of the Senate on the amendment and on whether the United States should object to its adoption.
(4) All amendments to the Convention, other than amendments under article 316(5) of a technical or administrative nature, shall be submitted by the President to the Senate for its advice and consent.
(5) The United States declares that it shall take all necessary steps under the Convention to ensure that amendments under article 316(5) are adopted in conformity with the
treaty clause in article 2, section 2 of the United States
Constitution.
(b) Inclusion of Certain Conditions in Instrument of Ratification.- Conditions 4 and 5 shall be included in the United States instrument of ratification to the Convention.
Index Terms :
103-39
LAW OF THE SEA
SEA
T.DOC. 103-39
UNITED NATIONS CONVENTION ON THE LAW OF THE
Control Number: 103TD00039
Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982
Overview
To address certain difficulties with the seabed mining provisions contained in Part XI of the Convention, which had been raised, primarily by the industrialized countries, the Secretary-General convened in July 1990 a series of informal consultations which culminated in the adoption, on 28 July 1994, of the Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982. The Agreement entered into force on 28 July 1996.
The Agreement was adopted on 28 July 1994 and entered into force on 28 July 1996. It consists of 10 articles dealing mainly with procedural aspects such as signature, entry into force and provisional application. Its article 2 deals with the relationship between the Agreement and Part XI of the Convention and it provides that the two shall be interpreted and applied together as a single instrument. In the event of an inconsistency between the Agreement and Part XI, however, the provisions of the Agreement shall prevail.
The Agreement has an annex, divided into nine sections, dealing with the various issues that were identified as problem areas during the informal consultations. These include costs to States Parties and institutional arrangements; decision-making mechanisms for the Authority; and future amendments of the Convention.
Law of the Sea - Settlement of Disputes
- International Jurisdiction, not Jurisdiction of American Law
The Charter of the United Nations requires all Members of the Organization to settle their international disputes by peaceful means in such a manner that international peace and security are not endangered. The United Nations Convention on the Law of the Sea builds on this commitment by providing a compulsory and binding framework for the peaceful settlement of all related disputes.
The Convention and the Settlement of Disputes
Part XV of the United Nations Convention on the Law of the Sea requires that States Parties to the Convention settle any dispute between them concerning the interpretation or application of the Convention by peaceful means in accordance with article 2, para. 3, of the Charter of the United Nations and shall seek a solution by the means indicated in article 33, para. 1, of the Charter. Where, however, no settlement has been reached, article 286 of the Convention stipulates that the dispute be submitted at the request of any party to the dispute to a court or tribunal having jurisdiction in this regard. Article 287 of the Convention defines those courts or tribunals as:
(a) The International Tribunal for the Law of the Sea (established in accordance with Annex VI of the Convention) including the Seabed Disputes Chamber;
(b) The International Court of Justice;
(c) An arbitral tribunal constituted in accordance with Annex VII of the Convention;
(d) A special arbitral tribunal constituted in accordance with Annex VIII for one or more of the categories of disputes specified therein.
Legal framework within the United Nations Convention on the Law of the Sea Procedures for settling seabed-related disputes (see Part XI, section 5, articles 186-191, and Part XV) Non-binding procedures (see Articles 279-285 and Annex V)
Compulsory procedures entailing binding decisions (see Article 287, Annexes VI, VII and VIII)
International Tribunal for the Law of the Sea
The International Tribunal for the Law of the Sea is the central forum established by the United Nations Convention on the Law of the Sea for the peaceful settlement of disputes. Its seat is at the Free and Hanseatic City of Hamburg, Germany. The Tribunal may sit and exercise its functions elsewhere whenever it considers this desirable.
Jurisdiction
(Above U.S. Courts)
The jurisdiction of the Tribunal comprises all disputes and all applications submitted to it in accordance with the United Nations Convention on the Law of the Sea and all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal.
The Tribunal has exclusive jurisdiction, through its Seabed Disputes Chamber, with respect to disputes relating to activities in the international seabed Area. These matters include disputes between States Parties concerning the interpretation or application of the provisions of the Convention, along with those of the Agreement relating to the Implementation of the Part XI of the Convention, concerning the deep seabed Area; as well as other categories of disputes as mentioned in article 187, Section 5, Part XI.
The Tribunal, through its Seabed Disputes Chamber, has jurisdiction to provide advisory opinions at the request of the Assembly or the Council of the International Seabed Authority on legal questions arising within the scope of their activities.
The Tribunal has special jurisdiction in matters calling for provisional measures. Pending the constitution of an arbitral tribunal to which a dispute is being sumitted under this section, any court or tribunal agreed upon by the parties or, failing agreement between parties to a dispute within two weeks of the request by either party for provisional measures, the Tribunal, or with respect to activities in the Area, the Seabed Disputes Chamber, may prescribe, modify or revoke provisional measures.
Where the authorities of a State Party have detained a vessel flying the flag of another State Party and it is alleged that the detaining State has not complied with the provisions of the Convention for the prompt release of the vessel or its crew upon the posting of a reasonable bond or other financial security, the question of release from detention may be submitted to the any court or tribunal agreed upon by the parties or, failing such agreement within 10 days from the time of detention, to a court or tribunal accepted by the detaining state or to the International Tribunal for the Law of the Sea, unless the parties otherwise agree.
Composition
The Tribunal is composed of 21 independent members elected by States Parties to the Convention on the Law of the Sea from among persons with recognized competence in the field of the law of the sea and representing the principal legal systems of the world. The first election was held in August 1996.
Upon their election, the members of the Tribunal will elect a President and a Vice-President whose term of office shall be three years. The Tribunal also appoints its Registrar and other officers of the Registry as may be necessary. The President of the Tribunal, as well as the Registrar, reside at the seat of the Tribunal.
In hearing a dispute, all available members of the Tribunal may sit, although a quorum of 11 members is required to constitute the Tribunal. All disputes and applications submitted to the Tribunal shall be heard and determined by it, unless the dispute is to be submitted to the Seabed Disputes Chamber or the parties request that it be submitted to a special chamber.
The Seabed Disputes Chamber is to be composed of 11 members selected by a majority of the members of the Tribunal from among them. Members of the Chamber will serve for three years, and are eligible for re-election. A quorum of seven members is required to constitute the Chamber.
In addition to the Seabed Disputes Chamber, the Tribunal will form annually a chamber composed of five of its members which may hear and determine disputes by summary procedure. The Tribunal will also form special chambers for dealing with a particular dispute submitted to it if the parties so request. The composition of those chambers will be determined by the Tribunal with the approval of the parties. Finally, the Tribunal may form such other chambers, composed of three or more its members, as it considers necessary for dealing with particular categories of disputes.
Members of the Tribunal may not exercise any political or administrative function, or associate actively with or be financially interested in any of the operations of any enterprise concerned with the exploration for or exploitation of the resources of the sea or the seabed or other commercial use of the sea or the seabed.
Members of the Tribunal may not participate in the decision of any case in which they have previously taken part as agent, counsel or advocate for one of the parties, or as a member of a national or international court or tribunal, or in any other capacity.
Members of the Tribunal of the nationality of any of the parties to a dispute shall retain their right to participate as members. If the Tribunal, when hearing a dispute, includes upon its bench a member of the nationality of one of the parties, any other party may choose a person to participate as a member of the Tribunal. In cases where the Tribunal does not include a member of the nationality of the parties, each of the parties may choose a person to participate as a member.
Membership of the Tribunal, Nationality, Regional Group and Term of Office
The first members of the Tribunal were elected at the meeting of States Parties held on 1 August 1996. They were sworn in by the Secretary-General of the United Nations at a ceremonial inauguration on 18 October 1996 in Hamburg, Germany.
For the Tribunal election procedure as well as a table of the membership, their nationality and their term of office please visit the Tribunal's web site.
Applicable Law
The Tribunal will apply the provisions of the United Nations Convention on the Law of the Sea and other rules of international law not incompatible with the Convention in deciding disputes submitted to it. It does, however, have to the power to decide a case ex aequo et bono, if the parties so agree.
Procedure
Disputes are to be submitted to the Tribunal, depending on the case, either by notification of a special agreement, or by written application, addressed to the Registrar.
The Tribunal and its Seabed Disputes Chamber have the power to prescribe provisional measures. If the Tribunal is not in session or a sufficient number of its members is not available to constitute a quorum, the provisional measures can be prescribed by the chamber of summary procedure. Such measures are subject to review and revision by the Tribunal.
All hearings before the Tribunal are under the control of its President, and are to be public, unless the Tribunal decides otherwise or unless the parties demand that the public not be admitted.
States Parties not party to a dispute but which consider that they have an interest of a legal nature which may be affected by the decision in any dispute may submit a request to the Tribunal to be permitted to intervene. Whenever the interpretation or application of the Convention or any other agreement is in question, the Registrar will notify all States Parties to the Convention or to such agreements. Those parties have the right to intervene in the proceedings.
Decisions of the Tribunal are final and shall be complied with by all the parties to the dispute. However, decisions will not have a binding force except between the parties in respect of the particular dispute.
Unless otherwise decided by the Tribunal, each party shall bear its own costs.
International Court of Justice - general information and selected cases
The International Court of Justice is one of the courts or tribunals that may be chosen under the dispute settlement mechanisms of the United Nations Convention on the Law of the Sea.
Treaties passed by Congress that bind the American People
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Law of the Sea Treaty - Actual Treaty - 202 Pages - PDF
GAO REPORT - United Nations & Need for Sustained Oversight (PDF)
Select Bibliography on Settlement of Disputes concerning the Law of the Sea - PDF (33 Pages)
Law of the Sea Agreement on the Privileges and Immunities of Tribunal PDF
Relationship between UN and LOST Tribunal PDF
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