US State DEPT. DISPATCH, VOLUME 6, SUPPLEMENT NUMBER 1, FEBRUARY 1995

US DEPARTMENT OF STATE DISPATCH
VOLUME 6, SUPPLEMENT NUMBER 1, FEBRUARY 1995
PUBLISHED BY THE BUREAU OF PUBLIC AFFAIRS

Law of the Sea Convention

Letters of Transmittal and
Submittal and Commentary

ITEMS IN THIS ISSUE:
I Transmittal Letter -- President Clinton
II Submittal Letter -- Secretary Christopher
III Commentary--The 1982 United Nations Convention on the Law of the
Sea and the Agreement on Implementation of Part XI
1 Introduction
2 Maritime Zones
3 Baselines
4 Bays and Other Features
5 Navigation and Overflight
Internal Waters
Territorial Sea
Straits Used for International Navigation
Archipelagic States
The Contiguous Zone
The Exclusive Economic Zone
High Seas
6 Protection and Preservation of the Marine Environment
7 Living Marine Resources
8 The Continental Shelf
9 Deep Sea-bed Mining
10 Marine Scientific Research
11 Dispute Settlement
12 Other Matters
Maritime Boundary Delimitation
Enclosed or Semi-enclosed Seas
Right of Access of Land-locked States
to and from the Sea and Freedom of Transit
Other Rights of Land-locked States and
Geographically Disadvantaged States
13 Development and Transfer of Marine Technology
14 Definitions
15 General Provisions
16 Final Provisions

ITEM I:

TRANSMITTAL LETTER
Text of a letter from the President to the U.S. Senate, October 7, 1994.

To the Senate of the United States:

I transmit herewith, for the advice and consent of the Senate to accession, the United Nations Convention on the Law of the Sea, with Annexes, done at Montego Bay, December 10, 1982 (the "Convention"), and, for the advice and consent of the Senate to ratification, 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. Also transmitted for the information of the Senate is the report of the Department of State with respect to the Convention and Agreement, as well as Resolution II of Annex I and Annex II of the Final Act of the Third United Nations Conference on the Law of the Sea.

The United States has basic and enduring national interests in the oceans and has consistently taken the view that the full range of these interests is best protected through a widely accepted international framework governing uses of the sea. Since the late 1960s, the basic U.S. strategy has been to conclude a comprehensive treaty on the law of the sea that will be respected by all countries. Each succeeding U.S. Administration has recognized this as the cornerstone of U.S. oceans policy. Following adoption of the Convention in 1982, it has been the policy of the United States to act in a manner consistent with its provisions relating to traditional uses of the oceans and to encourage other countries to do likewise.

The primary benefits of the Convention to the United States include the following:

-- The Convention advances the interests of the United States as a global maritime power. It preserves the right of the U.S. military to use the world's oceans to meet national security requirements and of commercial vessels to carry sea-going cargoes. It achieves this, inter alia, by stabilizing the breadth of the territorial sea at 12 nautical miles; by setting forth navigation regimes of innocent passage in the territorial sea, transit passage in straits used for international navigation, and archipelagic sea lanes passage; and by reaffirming the traditional freedoms of navigation and overflight in the exclusive economic zone and the high seas beyond.

-- The Convention advances the interests of the United States as a coastal State. It achieves this, inter alia, by providing for an exclusive economic zone out to 200 nautical miles from shore and by securing our rights regarding resources and artificial islands, installations and structures for economic purposes over the full extent of the continental shelf. These provisions fully comport with U.S. oil and gas leasing practices, domestic management of coastal fishery resources, and international fisheries agreements.

-- As a far-reaching environmental accord addressing vessel source pollution, pollution from seabed activities, ocean dumping, and land-based sources of marine pollution, the Convention promotes continuing improvement in the health of the world's oceans.

-- In light of the essential role of marine scientific research in
understanding and managing the oceans, the Convention sets forth
criteria and procedures to promote access to marine areas, including
coastal waters, for research activities.

-- The Convention facilitates solutions to the increasingly complex
problems of the uses of the ocean--solutions that respect the essential
balance between our interests as both a coastal and a maritime nation.

-- Through its dispute settlement provisions, the Convention provides
for mechanisms to enhance compliance by Parties with the Convention's
provisions.

Notwithstanding these beneficial provisions of the Convention and
bipartisan support for them, the United States decided not to sign the
Convention in 1982 because of flaws in the regime it would have
established for managing the development of mineral resources of the
seabed beyond national jurisdiction (Part XI). It has been the
consistent view of successive U.S. Administrations that this deep seabed
mining regime was inadequate and in need of reform if the United States
was ever to become a Party to the Convention.

Such reform has now been achieved. The Agreement, signed by the United
States on July 29, 1994, fundamentally changes the deep seabed mining
regime of the Convention. As described in the report of the Secretary
of State, the Agreement meets the objections the United States and other
industrialized nations previously expressed to Part XI. It promises to
provide a stable and internationally recognized framework for mining to
proceed in response to future demand for minerals.

Early adherence by the United States to the Convention and the Agreement
is important to maintain a stable legal regime for all uses of the sea,
which covers more than 70 percent of the surface of the globe.
Maintenance of such stability is vital to U.S. national security and
economic strength.

I therefore recommend that the Senate give early and favorable
consideration to the Convention and to the Agreement and give its advice
and consent to accession to the Convention and to ratification of the
Agreement. Should the Senate give such advice and consent, I intend to
exercise the options concerning dispute settlement recommended in the
accompanying report of the Secretary of State.

William J. Clinton

ITEM II:

SUBMITTAL LETTER
Text of a letter from the Secretary of State to the President, September
23, 1994.

The President:

I have the honor to submit to you the 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 on July 29, 1994, subject to
ratification. I recommend that the Convention and the Agreement be
transmitted to the Senate for its advice and consent to accession and
ratification, respectively.

The Convention sets forth a comprehensive framework governing uses of
the oceans. It was adopted by the Third United Nations Conference on
the Law of the Sea (the Conference), which met between 1973 and 1982 to
negotiate a comprehensive treaty relating to the law of the sea.

The Agreement, adopted by United Nations General Assembly Resolution
A/RES/48/263 on July 28, 1994, contains legally binding changes to that
part of the Convention dealing with the mining of the seabed beyond the
limits of national jurisdiction (Part XI and related Annexes) and is to
be applied and interpreted together with the Convention as a single
instrument. The Agreement promotes universal adherence to the
Convention by removing obstacles to acceptance of the Convention by
industrialized nations, including the United States.

I also recommend that Resolution II of Annex I, governing preparatory
investment in pioneer activities relating to polymetallic nodules, and
Annex II, a statement of understanding concerning a specific method to
be used in establishing the outer edge of the continental margin, of the
Final Act of the Third United Nations Conference on the Law of the Sea
be transmitted to the Senate for its information.

The Convention

The Convention provides a comprehensive framework with respect to uses
of the oceans. It creates a structure for the governance and protection
of all marine areas, including the airspace above and the seabed and
subsoil below. After decades of dispute and negotiation, the Convention
reflects consensus on the extent of jurisdiction that States may
exercise off their coasts and allocates rights and duties among States.

The Convention provides for a territorial sea of a maximum breadth of 12
nautical miles and coastal State sovereign rights over fisheries and
other natural resources in an Exclusive Economic Zone (EEZ) that may
extend to 200 nautical miles from the coast. In so doing, the
Convention brings most fisheries under the jurisdiction of coastal
States. (Some 90 percent of living marine resources are harvested
within 200 nautical miles of the coast.)

The Convention imposes on coastal States a duty to conserve these
resources, as well as obligations upon all States to cooperate in the
conservation of fisheries populations on the high seas and such
populations that are found both on the high seas and within the EEZ
(highly migratory stocks, such as tuna, as well as "straddling stocks").
In addition, it provides for special protective measures for anadromous
species, such as salmon, and for marine mammals, such as whales.

The Convention also accords the coastal State sovereign rights over the
exploration and development of non-living resources, including oil and
gas, found in the seabed and subsoil of the continental shelf, which is
defined to extend to 200 nautical miles from the coast or, where the
continental margin extends beyond that limit, to the outer edge of the
geological continental margin. It lays down specific criteria and
procedures for determining the outer limit of the margin.

The Convention carefully balances the interests of States in controlling
activities off their own coasts with those of all States in protecting
the freedom to use ocean spaces without undue interference. It
specifically preserves and elaborates the rights of military and
commercial navigation and overflight in areas under coastal State
jurisdiction and on the high seas beyond. It guarantees passage for all
ships and aircraft through, under and over straits used for
international navigation and archipelagos. It also guarantees the high
seas freedoms of navigation, overflight and the laying and maintenance
of submarine cables and pipelines in the EEZ and on the continental
shelf.

For the non-living resources of the seabed beyond the limits of national
jurisdiction (i.e., beyond the EEZ or continental margin, whichever is
further seaward), the Convention establishes an international regime to
govern exploration and exploitation of such resources. It defines the
general conditions for access to deep seabed minerals by commercial
entities and provides for the establishment of an international
organization, the International Seabed Authority, to grant title to mine
sites and establish necessary ground rules. The system was
substantially modified by the 1994 Agreement, discussed below.

The Convention sets forth a comprehensive legal framework and basic
obligations for protecting the marine environment from all sources of
pollution, including pollution from vessels, from dumping, from seabed
activities and from land-based activities. It creates a positive and
unprecedented regime for marine environmental protection that will
compel parties to come together to address issues of common and pressing
concern. As such, the Convention is the strongest comprehensive
environmental treaty now in existence or likely to emerge for quite some
time.

The essential role of marine scientific research in understanding and
managing the oceans is also secured. The Convention affirms the right
of all States to conduct marine scientific research and sets forth
obligations to promote and cooperate in such research. It confirms the
rights of coastal States to require consent for such research undertaken
in marine areas under their jurisdiction. These rights are balanced by
specific criteria to ensure that coastal States exercise the consent
authority in a predictable and reasonable fashion to promote maximum
access for research activities.

The Convention establishes a dispute settlement system to promote
compliance with its provisions and the peaceful settlement of disputes.
These procedures are flexible, in providing options as to the
appropriate means and fora for resolution of disputes, and
comprehensive, in subjecting the bulk of the Convention's provisions to
enforcement through binding mechanisms. The system also provides
Parties the means of excluding from binding dispute settlement certain
sensitive political and defense matters.

Further analysis of provisions of the Convention's 17 Parts, comprising
320 articles and nine Annexes, is set forth in the Commentary that is
enclosed as part of this Report.

The Agreement

The achievement of a widely accepted and comprehensive law of the sea
convention--to which the United States can become a Party--has been a
consistent objective of successive U.S. administrations for the past
quarter century. However, the United States decided not to sign the
Convention upon its adoption in 1982 because of objections to the regime
it would have established for managing the development of seabed mineral
resources beyond national jurisdiction. While the other Parts of the
Convention were judged beneficial for U.S. ocean policy interests, the
United States determined the deep seabed regime of Part XI to be
inadequate and in need of reform before the United States could consider
becoming Party to the Convention.

Similar objections to Part XI also deterred all other major
industrialized nations from adhering to the Convention. However, as a
result of the important international political and economic changes of
the last decade--including the end of the Cold War and growing reliance
on free market principles--widespread recognition emerged that the
seabed mining regime of the Convention required basic change in order to
make it generally acceptable. As a result, informal negotiations were
launched in 1990, under the auspices of the United Nations Secretary-
General, that resulted in adoption of the Agreement on July 28, 1994.

The legally binding changes set forth in the Agreement meet the
objections of the United States to Part XI of the Convention. The
United States and all other major industrialized nations have signed the
Agreement.

The provisions of the Agreement overhaul the decision-making procedures
of Part XI to accord the United States, and others with major economic
interests at stake, adequate influence over future decisions on possible
deep seabed mining. The Agreement guarantees a seat for the United
States on the critical executive body and requires a consensus of major
contributors for financial decisions.

The Agreement restructures the deep seabed mining regime along free
market principles and meets the U.S. goal of guaranteed access by U.S.
firms to deep seabed minerals on the basis of reasonable terms and
conditions. It eliminates mandatory transfer of technology and
production controls. It scales back the structure of the organization
to administer the mining regime and links the activation and operation
of institutions to the actual development of concrete commercial
interest in seabed mining. A future decision, which the United States
and a few of its allies can block, is required before the organization's
potential operating arm (the Enterprise) may be activated, and any
activities on its part are subject to the same requirements that apply
to private mining companies. States have no obligation to finance the
Enterprise, and subsidies inconsistent with GATT are prohibited.

The Agreement provides for grandfathering the seabed mine site claims
established on the basis of the exploration work already conducted by
companies holding U.S. licenses on the basis of arrangements "similar to
and no less favorable than" the best terms granted to previous
claimants; further, it strengthens the provisions requiring
consideration of the potential environmental impacts of deep seabed
mining.

The Agreement provides for its provisional application from November 16,
1994, pending its entry into force. Without such a provision, the
Convention would enter into force on that date with its objectionable
seabed mining provisions unchanged. Provisional application may
continue only for a limited period, pending entry into force.
Provisional application would terminate on November 16, 1998, if the
Agreement has not entered into force due to failure of a sufficient
number of industrialized States to become Parties. Further, the
Agreement provides flexibility in allowing States to apply it
provisionally in accordance with their domestic laws and regulations.

In signing the agreement on July 29, 1994, the United States indicated
that it intends to apply the agreement provisionally pending
ratification. Provisional application by the United States will permit
the advancement of U.S. seabed mining interests by U.S. participation in
the International Seabed Authority from the outset to ensure that the
implementation of the regime is consistent with those interests, while
doing so consistent with existing laws and regulations.

Further analysis of the Agreement and its Annex, including analysis of
the provisions of Part XI of the Convention as modified by the
Agreement, is also set forth in the Commentary that follows.

Status of the Convention And the Agreement

One hundred and fifty-two States signed the Convention during the two
years it was open for signature. As of September 8, 1994, 65 States had
deposited their instruments of ratification, accession or succession to
the Convention. The Convention will enter into force for these States
on November 16, 1994, and thereafter for other States 30 days after
deposit of their instruments of ratification or accession.

The United States joined 120 other States in voting for adoption of the
Agreement on July 28, 1994; there were no negative votes and seven
abstentions. As of September 8, 1994, 50 States and the European
Community have signed the Agreement, of which 19 had previously ratified
the Convention. Eighteen developed States have signed the Agreement,
including the United States, all the members of the European Community,
Japan, Canada and Australia, as well as major developing countries, such
as Brazil, China and India.

Relation to the 1958 Geneva Conventions

Article 311(1) of the LOS Convention provides that the Convention will
prevail, as between States Parties, over the four Geneva Conventions on
the Law of the Sea of April 29, 1958, which are currently in force for
the United States: the Convention on the Territorial Sea and the
Contiguous Zone, 15 UST 1606, TIAS. No. 5639, 516 UNTS 205 (entered into
force September 10, 1964); the Convention on the High Seas, 13 UST.
2312, TIAS. No. 5200, 450 UNTS 82 (entered into force September 30,
1962); Convention on the Continental Shelf, 15 UST 471, TIAS No. 5578,
499 UNTS 311 (entered into force June 10, 1964); and the Convention on
Fishing and Conservation of Living Resources of the High Seas, 17 UST
138, TIAS No. 5969, 559 UNTS 285 (entered into force March 20, 1966).
Virtually all of the provisions of these Conventions are either
repeated, modified, or replaced by the provisions of the LOS Convention.

Dispute Settlement

The Convention identifies four potential fora for binding dispute
settlement:

-- The International Tribunal for the Law of the Sea constituted under
Annex VI;
-- The International Court of Justice;
-- An arbitral tribunal constituted in accordance with Annex VII; and
-- A special arbitral tribunal constituted in accordance with Annex
VIII for specified categories of disputes.

A State, when adhering to the Convention, or at any time thereafter, is
able to choose, by written declaration, one or more of these means for
the settlement of disputes under the Convention. If the parties to a
dispute have not accepted the same procedure for the settlement of the
dispute, it may be submitted only to arbitration in accordance with
Annex VII, unless the parties otherwise agree. If a Party has failed to
announce its choice of forum, it is deemed to have accepted arbitration
in accordance with Annex VII.

I recommend that the United States choose special arbitration for all
the categories of disputes to which it may be applied and Annex VII
arbitration for disputes not covered by the above, and thus that the
United States make the following declaration:

The Government of the United States of America declares, in accordance
with paragraph 1 of Article 287, 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 (A) above.

Subject to limited exceptions, the Convention excludes from binding
dispute settlement disputes relating to the sovereign rights of coastal
States with respect to the living resources in their EEZs. In addition,
the Convention permits a State to opt out of binding dispute settlement
procedures with respect to one or more enumerated categories of
disputes, namely disputes regarding maritime boundaries between
neighboring States, disputes concerning military activities and certain
law enforcement activities, and disputes in respect of which the United
Nations Security Council is exercising the functions assigned to it by
the Charter of the United Nations.

I recommend that the United States elect to exclude all three of these
categories of disputes from binding dispute settlement, and thus that
the United States make the following declaration:

The Government of the United States of America declares, in accordance
with paragraph 1 of Article 298, that it does not accept the procedures
provided for in section 2 of Part XV with respect to the categories of
disputes set forth in subparagraphs (a), (b) and (c) of that paragraph.

Recommendation

The interested Federal agencies and departments of the United States
have unanimously concluded that our interests would be best served by
the United States becoming a Party to the Convention and the Agreement.

The primary benefits of the Convention to the United States include the
following:

-- The Convention advances the interests of the United States as a
global maritime power. It preserves the right of the U.S. military to
use the world's oceans to meet national security requirements and of
commercial vessels to carry sea-going cargoes. It achieves this, inter
alia, by stabilizing the breadth of the territorial sea at 12 nautical
miles; by setting forth navigation regimes of innocent passage in the
territorial sea, transit passage in straits used for international
navigation, and archipelagic sea lanes passage; and by reaffirming the
traditional freedoms of navigation and overflight in the EEZ and the
high seas beyond.

-- The Convention advances the interests of the United States as a
coastal State. It achieves this, inter alia, by providing for an EEZ
out to 200 nautical miles from shore and by securing our rights
regarding resources and artificial islands, installations and structures
for economic purposes over the full extent of the continental shelf.
These provisions fully comport with U.S. oil and gas leasing practices,
domestic management of coastal fishery resources, and international
fisheries agreements.

-- As a far-reaching environmental accord addressing vessel source
pollution, pollution from seabed activities, ocean dumping and land-
based sources of marine pollution, the Convention promotes continuing
improvement in the health of the world's oceans.

-- The Convention facilitates solutions to the increasingly complex
problems of the uses of the ocean--solutions which respect the essential
balance between our interests as both a coastal and a maritime nation.

-- Through its dispute settlement provisions, the Convention provides
for mechanisms to enhance compliance by Parties with the Convention's
provisions.

-- The Agreement fundamentally changes the deep seabed mining regime of
the Convention. It meets the objections the United States and other
industrialized nations previously expressed to Part XI. It promises to
provide a stable and internationally recognized framework for mining to
proceed in response to future demand for minerals.

The United States has been a leader in the international community's
effort to develop a widely accepted international framework governing
uses of the seas. As a Party to the Convention, the United States will
be in a position to continue its role in this evolution and ensure
solutions that respect our interests.

All interested agencies and departments, therefore, join the Department
of State in unanimously recommending that the Convention and Agreement
be transmitted to the Senate for its advice and consent to accession and
ratification respectively. They further recommend that they be
transmitted before the Senate adjourns sine die this fall.

The Department of State, along with other concerned agencies, stands
ready to work with Congress toward enactment of legislation necessary to
carry out the obligations assumed under the Convention and Agreement and
to permit the United States to exercise rights granted by the
Convention.

Warren Christopher

ITEM III:

COMMENTARY--THE 1982 UNITED NATIONS CONVENTION ON THE LAW OF THE SEA AND
THE AGREEMENT ON IMPLEMENTATION OF PART XI

ITEM 1:

INTRODUCTION

The United Nations Convention on the Law of the Sea, opened for
signature on December 10, 1982 (the Convention or LOS Convention)
creates a structure for the governance and protection of all of the sea,
including the airspace above and the sea-bed and subsoil below. In
particular, it provides a framework for the allocation of jurisdiction,
rights and duties among States that carefully balances the interests of
States in controlling activities off their own coasts and the interests
of all States in protecting the freedom to use ocean spaces without
undue interference.

This Commentary begins with a discussion of the maritime zones
recognized by the Convention, emphasizing the rules regarding navigation
and overflight in these areas. Next, the framework for the protection
and preservation of the marine environment of these areas is examined.
Thereafter, the Commentary reviews the regimes for dealing with the
resources in these areas under the following headings:

-- Living marine resources, including fishing;

-- Non-living resources, including those of the continental shelf and
the deep sea-bed beyond the limits of national jurisdiction; and,

-- Marine scientific research.

The various mechanisms for settling disputes regarding these provisions
are next examined. Finally, the Commentary considers other provisions
of the Convention, including those relating to maritime boundary
delimitation, enclosed and semi-enclosed seas, land-locked and
geographically disadvantaged States, and technology transfer, as well as
the definitions and the general and final provisions of the Convention.

ITEM 2:

MARITIME ZONES

The Convention addresses the balance of coastal and maritime interests
with respect to all areas of the sea. From the absolute sovereignty
that every State exercises over its land territory and superjacent
airspace, the exclusive rights and control that the coastal State
exercises over maritime areas off its coast diminish in stages as the
distance from the coastal State increases. Conversely, the rights and
freedoms of maritime States are at their maximum in regard to activities
on the high seas and gradually diminish closer to the coastal State.
The balance of interests between the coastal State and maritime States
thus varies in each zone recognized by the Convention.

The location of these zones under the Convention may be summarized as
follows (and is illustrated in Figure 1).

Internal waters are landward of the baselines along the coast. They
include lakes, rivers and many bays.

Archipelagic waters are encircled by archipelagic baselines established
by independent archipelagic States.

The territorial sea extends seaward from the baselines to a fixed
distance. The Convention establishes 12 nautical miles as the maximum
permissible breadth of the territorial sea. (One nautical mile equals
1,852 meters or 6,067 feet; all further references to miles in this
Commentary are to nautical miles.)

The contiguous zone, exclusive economic zone (EEZ) and continental shelf
all begin at the seaward limit of the territorial sea.

The contiguous zone may extend to a maximum distance of 24 miles from
the baselines.

The EEZ may extend to a maximum distance of 200 miles from the
baselines.

The continental shelf may extend to a distance of 200 miles from the
baselines or, if the continental margin extends beyond that limit, to
the outer edge of the continental margin as defined by the Convention.
The regime of the continental shelf applies to the sea-bed and subsoil
and does not affect the status of the superjacent waters or airspace.

The regime of the high seas applies seaward of the EEZ; significant
parts of that regime, including freedom of navigation and overflight,
also apply within the EEZ.

The sea-bed beyond national jurisdiction, called the Area in the
Convention, comprises the sea-bed and subsoil beyond the seaward limit
of the continental shelf.

Internal Waters

Article 8(1) defines internal waters as the waters on the landward side
of the baseline from which the breadth of the territorial sea is
measured. This definition carries forward the traditional definition of
internal waters found in article 5 of the 1958 Geneva Convention on the
Territorial Sea and the Contiguous Zone, 15 UST 1606, TIAS No. 5639, 516
UNTS 205 (Territorial Sea Convention). The importance of baselines and
the rules relating to them are discussed in the next section.

Territorial Sea

Article 2 describes the territorial sea as a belt of ocean which is
measured seaward from the baseline of the coastal State and subject to
its sovereignty. This sovereignty also extends to the airspace above
and to the sea-bed and subsoil. It is exercised subject to the
Convention and other rules of international law relating to innocent
passage, transit passage, archipelagic sea lanes passage and protection
of the marine environment. Under article 3, the coastal State has the
right to establish the breadth of its territorial sea up to a limit not
exceeding 12 miles, measured from baselines determined in accordance
with the Convention.

The adoption of the Convention has significantly influenced State
practice. Prior to 1982, as many as 25 States claimed territorial seas
broader than 12 miles (with attendant detriment to the freedoms of
navigation and overflight essential to U.S. national security and
commercial interests), while 30 States, including the United States,
claimed a territorial sea of less than 12 miles. Since 1983, State
practice in asserting territorial sea claims has largely coalesced
around the 12 mile maximum breadth set by the Convention. As of January
1, 1994 128 States claim a territorial sea of 12 miles or less; only 17
States claim a territorial sea broader than 12 miles.

Since 1988, the United States has claimed a 12 mile territorial sea
(Presidential Proclamation 5928, December 27, 1988). Since the
President's Ocean Policy Statement of March 10, 1983, the United States
has recognized territorial sea claims of other States up to a maximum
breadth of 12 miles.

Contiguous Zone

Article 33 recognizes the contiguous zone as an area adjacent to the
territorial sea in which the coastal State may exercise the limited
control necessary to prevent or punish infringement of its customs,
fiscal, immigration, and sanitary laws and regulations that occurs
within its territory or territorial sea. Unlike the territorial sea,
the contiguous zone is not subject to coastal State sovereignty; vessels
and aircraft enjoy the same high seas freedom of navigation and
overflight in the contiguous zone as in the EEZ. The maximum
permissible breadth of the contiguous zone is 24 miles measured from the
baseline from which the breadth of the territorial sea is measured.

In 1972, the United States claimed a contiguous zone beyond its
territorial sea (historically claimed as 3 miles) out to 12 miles from
the coastal baselines (Department of State Public Notice 358, 37 Federal
Register 11,906). Since 1988, when the United States extended its
territorial sea to 12 miles, the U.S. contiguous zone and territorial
sea claims have thus been coterminous. Under the Convention, the United
States could set the seaward limit of its contiguous zone at 24 miles,
enhancing its ability to deal with illegal immigration, drug trafficking
by sea and public health matters.

Exclusive Economic Zone (EEZ)

The establishment of the EEZ in the Convention represents a substantial
change in the law of the sea. The underlying purpose of the EEZ regime
is to balance the rights of coastal States, such as the United States,
to resources (e.g., fisheries and offshore oil and gas) and to protect
the environment off their coasts with the interests of all States in
preserving other high seas rights and freedoms.

Article 55 defines the EEZ as an area beyond and adjacent to the
territorial sea, subject to the specific legal regime established in
Part V, which elaborates the jurisdiction, rights and duties of the
coastal State and the rights, freedoms and duties of other States.
Pursuant to article 56, the coastal State exercises sovereign rights for
the purpose of exploring and exploiting, conserving and managing the
natural resources of the EEZ, whether living or non-living. It also has
significant rights in the EEZ with respect to scientific research and
the protection and preservation of the marine environment. The coastal
State does not have sovereignty over the EEZ, and all States enjoy the
high seas freedoms of navigation, overflight, laying and maintenance of
submarine cables and pipelines, and related uses in the EEZ, compatible
with other Convention provisions. However, all States have a duty, in
the EEZ, to comply with the laws and regulations adopted by the coastal
State in accordance with the Convention and other compatible rules of
international law.

Article 57 requires the seaward limit of the EEZ to be no more than 200
miles from the baseline from which the breadth of the territorial sea is
measured. The United States declared its EEZ with this limit by
Presidential Proclamation 5030 on March 10, 1983. Congress incorporated
the claim in amending the Magnuson Fishery Conservation and Management
Act, 16. U.S.C. $ 1801 et seq., Pub. L. 99-659.

As of March 1, 1994, 93 States claim an EEZ. No State claims an EEZ
beyond 200 miles from its coastal baselines, although, as discussed
below in the section on navigation and overflight, several States claim
the right to restrict activities within their EEZs beyond that which the
Convention authorizes.

The EEZ of the United States is among the largest in the world,
extending through considerable areas of the Atlantic, Pacific and Arctic
Oceans, including those around U.S. insular territories. From the
perspective of managing and conserving resources off its coasts, the
United States gains more from the provisions on the EEZ in the
Convention than perhaps any other State.

High Seas

Pursuant to article 86, the regime of the high seas applies seaward of
the EEZ. The Convention elaborates the regime of the high seas,
including the principles of the freedom of the high seas, as it
developed over centuries, and supplements the regime with new safety and
environmental requirements and express recognition of the freedom of
scientific research. As discussed below in connection with living
marine resources, the Convention makes the right to fish on the high
seas subject to significant additional requirements relating to
conservation and to certain rights, duties and interests of coastal
States.

Continental Shelf

Pursuant to article 76, the continental shelf of a coastal State
comprises the sea-bed and subsoil of the submarine areas that extend
beyond its territorial sea throughout the natural prolongation of its
land territory to the outer edge of the continental margin, or to a
distance of 200 miles from the baselines from which the breadth of the
territorial sea is measured where the outer edge of the continental
margin does not extend up to that distance. The coastal State alone
exercises sovereign rights over the continental shelf for the purpose of
exploring it and exploiting its natural resources. The natural
resources of the continental shelf consist of the mineral and other non-
living resources of the sea-bed and subsoil together with the living
organisms belonging to sedentary species. Substantial deposits of oil
and gas are located in the continental shelf off the coasts of the
United States and other countries.

The Sea-bed Beyond National Jurisdiction�

The Convention defines as the Area the sea-bed and ocean floor and
subsoil thereof beyond the limits of national jurisdiction. Possible
exploration and development of the mineral resources found at or beneath
the sea-bed of the Area are to be undertaken pursuant to the
international regime established by the Convention, as revised by the
Agreement, on the basis of the principle that these resources are the
common heritage of mankind. The Area remains open to use by all States
for the exercise of high seas freedoms for defense, scientific research,
telecommunications and other purposes.

Airspace

The Convention does not treat airspace as distinct zones. However, its
provisions affirm that the sovereignty of a coastal State extends to the
airspace over its land territory, internal waters and territorial sea.
The breadth of territorial airspace is necessarily the same as the
breadth of the underlying territorial sea. International airspace
begins at the outer limit of the territorial sea.

ITEM 3:

BASELINES

A State's maritime zones are measured from the baseline. The rules for
drawing baselines are contained in articles 5 through 11, 13 and 14 of
the Convention. These rules distinguish between normal baselines
(following the low-water mark along the coast) and straight baselines
(which can be employed only in specified geographical situations). The
baseline rules take into account most of the wide variety of
geographical conditions existing along the coastlines of the world.

Baseline claims can extend maritime jurisdiction significantly seaward
in a manner that prejudices navigation, overflight and other interests.
Objective application of baseline rules contained in the Convention can
help prevent excessive claims in the future and encourage governments to
revise existing claims to conform to the relevant criteria.

Normal Baseline

Pursuant to article 5, the normal baseline used for measuring the
breadth 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
atolls or of islands having fringing reefs, the normal baseline is the
seaward low-water line on the drying reef charted as being above the
level of chart datum. While the Convention does not address reef
closing lines, any such line is not to adversely affect rights of
passage, freedom of navigation, and other rights for which the
Convention provides.

Straight Baselines

Purpose. The purpose of authorizing the use of straight baselines is to
allow the coastal State, at its discretion, to enclose those waters
which, as a result of their close interrelationship with the land, have
the character of internal waters. By using straight baselines, a State
may also eliminate complex patterns, including enclaves, in its
territorial sea, that would otherwise result from the use of normal
baselines in accordance with article 5. Properly drawn straight
baselines do not result in extending the limits of the territorial sea
significantly seaward from those that would result from the use of
normal baselines.

With the advent of the EEZ, the original reason for straight baselines
(protection of coastal fishing interests) has all but disappeared.
Their use in a manner that prejudices international navigation,
overflight, and communications interests runs counter to the thrust of
the Convention's strong protection of these interests. In light of the
modernization of the law of the sea in the Convention, it is reasonable
to conclude that, as the Convention states, straight baselines are not
normal baselines, straight baselines should be used sparingly, and,
where they are used, they should be drawn conservatively to reflect the
one rationale for their use that is consistent with the Convention,
namely the simplification and rationalization of the measurement of the
territorial sea and other maritime zones off highly irregular coasts.

Areas of Application. Straight baselines, in accordance with article 7,
may be used only in two specific geographic circumstances, that is, (a)
in localities where the coastline is deeply indented and cut into, or
(b) if there is a fringe of islands along the coast in the immediate
vicinity of the coast. Even if these basic geographic criteria exist in
any particular locality, the coastal State is not obliged to employ the
method of straight baselines, but may (like the United States and other
countries) instead continue to use the normal baseline and permissible
closing lines across the mouths of rivers and bays.

"Localities Where the Coastline Is Deeply Indented and Cut Into."
"Deeply indented and cut into" refers to a very distinctive coastal
configuration. The United States has taken the position that such a
configuration must fulfill all of the following characteristics:

-- In a locality where the coastline is deeply indented and cut into,
there exist at least three deep indentations;
-- The deep indentations are in close proximity to one another; and
-- The depth of penetration of each deep indentation from the proposed
straight baseline enclosing the indentation at its entrance to the sea
is, as a rule, greater than half the length of that baseline segment.

The term "coastline" is the mean low-water line along the coast; the
term "localities" refers to particular segments of the coastline.

"Fringe of Islands Along the Coast in the Immediate Vicinity of the
Coast." "Fringe of islands along the coast in the immediate vicinity of
the coast" refers to a number of islands, within the meaning of article
121(1). The United States has taken the position that a such a fringe
of islands must meet all of the following requirements:

-- The most landward point of each island lies no more than 24 miles
from the mainland coastline;
-- Each island to which a straight baseline is to be drawn is not more
than 24 miles apart from the island from which the straight baseline is
drawn; and
-- The islands, as a whole, mask at least 50% of the mainland coastline
in any given locality.

Criteria for Drawing Straight Baseline Segments. The United States has
taken the position that, to be consistent with article 7(3), straight
baseline segments must:

-- Not depart to any appreciable extent from the general direction of
the coastline, by reference to general direction lines which in each
locality shall not exceed 60 miles in length;
-- Not exceed 24 miles in length; and
-- Result in sea areas situated landward of the straight baseline
segments that are sufficiently closely linked to the land domain to be
subject to the regime of internal waters.

Minor Deviations. Straight baselines drawn with minor deviations from
the foregoing criteria are not necessarily inconsistent with the
Convention.

Economic Interests. Economic interests alone cannot justify the
location of particular straight baselines. In determining the alignment
of particular straight baseline segments of a baseline system which
satisfies the deeply indented or fringing islands criteria, in
accordance with article 7(5), only those economic interests may be taken
into account which are peculiar to the region concerned and only when
the reality and importance of the economic interests are clearly
evidenced by long usage.

Basepoints. Except as noted in article 7(4), basepoints for all
straight baselines must be located on land territory and situated on or
landward of the low-water line. No straight baseline segment may be
drawn to a basepoint located on the land territory of another State.

Use of Low-tide Elevations as Basepoints in a System of Straight
Baselines. In accordance with article 7(4), only those low-tide
elevations which have had built on them lighthouses or similar
installations may be used as basepoints for establishing straight
baselines. Other low-tide elevations may not be used as basepoints
unless the drawing of baselines to and from them has received general
international recognition. The United States has taken the position
that "similar installations" are those that are permanent, substantial
and actually used for safety of navigation and that "general
international recognition" includes recognition by the major maritime
users over a period of time.

Effect on Other States. Article 7(6) provides that a State may not
apply the system of straight baselines in such a manner as to cut off
the territorial sea of another State from the high seas or an EEZ. In
addition, article 8(2) provides that, where the establishment of a
straight baseline has the effect of enclosing as internal waters areas
which had not previously been considered as such, a right of innocent
passage as provided in the Convention shall exist in those waters.
Article 35(a) has the same effect with respect to the right of transit
passage through straits.

Unstable Coastlines. As provided in article 7(2), where a coastline,
which is deeply indented and cut into or fringed with islands in its
immediate vicinity, is also highly unstable because of the presence of a
delta or other natural conditions, the appropriate basepoints may be
located along the furthest seaward extent of the low-water line. The
straight baseline segments drawn joining these basepoints remain
effective, notwithstanding subsequent regression of the low-water line,
until the baseline segments are changed by the coastal State in
accordance with international law reflected in the Convention.

Other Baseline Rules

Low-tide Elevations. Under article 13, the low-water line on a low-tide
elevation may be used as the baseline for measuring the breadth of the
territorial sea only where that elevation is situated wholly or partly
at a distance not exceeding the breadth of the territorial sea measured
from the mainland or an island. Where a low-tide elevation is wholly
situated at a distance exceeding the breadth of the territorial sea from
the mainland or an island, even if it is within that distance measured
from a straight baseline or bay closing line, it has no territorial sea
of its own. Low-tide elevations can be mud flats, or sand bars.

Combination of Methods. Article 14 authorizes the coastal State to
determine each baseline segment using any of the methods permitted by
the Convention that suit the specific geographic condition of that
segment, i.e., the methods for drawing normal baselines, straight
baselines, or closing lines (discussed below).

Harbor Works. In accordance with article 11, only those permanent man-
made harbor works which form an integral part of a harbor system, such
as jetties, moles, quays, wharves, breakwaters and sea walls, may be
used as part of the baseline for delimiting the territorial sea.

Mouths of Rivers. If a river flows directly into the sea without
forming an estuary, pursuant to article 9, the baseline shall be a
straight line drawn across the mouth of the river between points on the
low-water line of its banks. If the river forms an estuary, the
baseline is determined under the provisions relating to juridical bays.

ITEM 4:

BAYS AND OTHER FEATURES

Juridical Bays

A "juridical bay" is a bay meeting the criteria of article 10(2). Such
a bay is a well-marked indentation on the coast whose penetration is in
such proportion to the width of its mouth as to contain land-locked
waters and constitute more than a mere curvature of the coast. An
indentation is not a juridical bay unless its area is as large as, or
larger than, that of the semi-circle whose diameter is a line drawn
across the mouth of that indentation.

For the purpose of measurement, article 10(3) provides that the
indentation is that area lying between the low-water mark around the
shore of the indentation and a line joining the low-water mark of its
natural entrance points. Where, because of the presence of islands, an
indentation has more than one mouth, the semi-circle shall be drawn on a
line as long as the sum total of the lengths of the lines across the
different mouths. Islands within an indentation shall be included as if
they were part of the water area of the indentation for satisfaction of
the semi-circle test.

Under article 10(4), if the distance between the low-water marks of the
natural entrance points of a juridical bay of a single State does not
exceed 24 miles, the juridical bay may be defined by drawing a closing
line between these two low-water marks, and the waters enclosed thereby
shall be considered as internal waters. Where the distance between the
low-water marks exceed 24 miles, a straight baseline of 24 miles shall
be drawn within the juridical bay in such a manner as to enclose the
maximum area of water that is possible within a line of that length.

Historic Bays

Article 10(6) exempts so-called historic bays from the rules described
above. To meet the standard of customary international law for
establishing a claim to a historic bay, a State must demonstrate its
open, effective, long-term, and continuous exercise of authority over
the bay, coupled with acquiescence by foreign States in the exercise of
that authority. An actual showing of acquiescence by foreign States in
such a claim is required, as opposed to a mere absence of opposition.
The United States has in the past claimed Delaware Bay and the
Chesapeake Bay as historic. These bodies also satisfy the criteria for
juridical bays reflected in the Convention.

Charts and Publication

Article 16(1) requires that the normal baseline be shown on large-scale
nautical charts, officially recognized by the coastal State.
Alternatively, the coastal State must provide a list of geographic
coordinates specifying the geodetic data. The United States depicts its
baseline on official charts with scales ranging from 1:80,000 to about
1:200,000. Drying reefs used for locating basepoints shall be shown by
an internationally accepted symbol for depicting such reefs on nautical
charts, pursuant to article 6.

To comply with article 16(2), the coastal State must give due publicity
to such charts or lists of geographical coordinates, and deposit a copy
of each such chart or list with the Secretary-General of the United
Nations.

Closure lines for bays meeting the semi-circle test must be given due
publicity, either by chart indications or by listed geographic
coordinates.

Islands

Article 121(1) defines an island as a naturally formed area of land,
surrounded by water, which is above water at high tide. Baselines are
established on islands, and maritime zones are measured from those
baselines, in the same way as on other land territory. In addition, as
previously indicated, there are special rules for using islands in
drawing straight baselines and bay closing lines, and even low-tide
elevations (which literally do not rise to the status of islands) may be
used as basepoints in specified circumstances. These special rules are
not affected by the provision in article 121(3) that rocks which cannot
sustain human habitation or economic life of their own shall have no EEZ
or continental shelf.

Artificial Islands and Off-shore Installations

Pursuant to articles 11, 60(8), 147(2) and 259, artificial islands,
installations and structures (including such man-made objects as oil
drilling rigs, navigational towers, and off-shore docking and oil
pumping facilities) do not possess the status of islands, and may not be
used to establish baselines, enclose internal waters, or establish or
measure the breadth of the territorial sea, EEZ or continental shelf.
Articles 60, 177(2), and 260 provide criteria for establishing safety
zones of limited breadth to protect artificial islands, installations
and structures and the safety of navigation in their vicinity.

Roadsteads

Article 12 provides that roadsteads normally used for the loading,
unloading, and anchoring of ships, and which would otherwise be situated
wholly or partly beyond the outer limits of the territorial sea, are
included within the territorial sea. Roadsteads included within the
territorial sea must be clearly marked on charts by the coastal State.
Only the roadstead itself is territorial sea; roadsteads do not generate
territorial seas around themselves; the presence of a roadstead does not
change the legal status of the water surrounding it.

ITEM 5:

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 Convention contain a critical, effective and
delicate balance between the interests of the international community in
maintaining the freedom of navigation and those of coastal States in
their offshore areas. As discussed in the previous section of this
Commentary, the Convention creates a distinct legal regime for each
maritime zone. This section analyzes the rules set forth in each of
these regimes regarding the rights, duties and jurisdiction of coastal
States and maritime States relating to navigation and overflight.

The maritime zones off the coasts of the United States are among the
largest and most economically productive in the world. The United
States also remains the world's preeminent maritime power. Accordingly,
the importance to the United States in maintaining the complex balance
of interests represented by these provisions of the Convention cannot be
overstated.

There are five elements of the Convention essential to the maintenance
of this balance from the perspective of navigation, overflight,
telecommunications, and related uses:

-- The rules for enclosing internal waters and archipelagic waters
within baselines, and the prohibition on territorial sea claims beyond
12 miles from those baselines;

-- The express protection for and accommodation of passage rights
through internal waters, the territorial sea, and archipelagic waters,
including transit passage of straits and archipelagic sea lanes passage,
as well as innocent passage;

-- The express protection for and accommodation of the high seas
freedoms of navigation, overflight, laying and maintenance of submarine
cables and pipelines, and related uses beyond the territorial sea,
including broad areas where there are substantial coastal State rights
and jurisdiction, such as the EEZ and the continental shelf;

-- The prohibition on regional arrangements in areas that restrict the
exercise of these rights and freedoms by third States without their
consent; and

-- The right to enforce this balance through arbitration or
adjudication.

Rights, freedoms and jurisdiction recognized and established by the
Convention are subject to Part XII of the Convention on the Protection
and Preservation of the Marine Environment, discussed below. This
includes the duty of the flag State to ensure that its ships comply with
international pollution control standards, and the rule of sovereign
immunity set forth in article 236.

Internal Waters

Internal waters are those landward of the baseline. Article 2 makes
clear the generally recognized rule that coastal State sovereignty
extends to internal waters. In articles 218 and 220, the Convention
adds to general notions of sovereignty and jurisdiction over internal
waters by expressly authorizing port State enforcement action within
internal waters for pollution violations that have occurred elsewhere.
This authorization does not imply any limitation on other enforcement
actions that coastal States may choose to exercise in their ports or
other internal waters.

Subject to ancient customs regarding the entry of ships in danger or
distress (force majeure) and the exception noted below, the Convention
does not limit the right of the coastal State to restrict entry into or
transit through its internal waters, port entry, imports or immigration.

The exception to the right of the coastal State to deny entry into or
transit through its internal waters is found in article 8(2), which
provides:

When the establishment of a straight baseline . . . has the effect of
enclosing as internal waters areas which had not previously been
considered as such, a right of innocent passage as provided in this
Convention shall exist in those waters.

If a foreign flag vessel is found in a coastal State's internal waters
without its permission, the full range of reasonable enforcement
procedures is available against a foreign commercial vessel. With
respect to foreign warships and other government ships on non-commercial
service, which are immune from the enforcement jurisdiction of all
States except the flag State, it may be inferred that a coastal State
may require such a vessel to leave its internal waters immediately (cf.
article 30). In addition, a port State has the right to refuse to
permit foreign ships from entering or remaining within its internal
waters.

Territorial Sea

Right of Innocent Passage. One of the fundamental tenets in the
international law of the sea is that all ships enjoy the right of
innocent passage through another State's territorial sea. (Innocent
passage does not include a right of overflight or submerged passage.)
This principle finds expression in article 17, and is developed further
throughout Section 3 of Part II of the Convention (articles 17-32).
These precise and objective rules governing innocent passage represent a
significant advance in development of law of the sea concepts.

The Convention defines "passage" (article 18) and "innocent passage"
(article 19), and lists those activities considered to be non-innocent
or "prejudicial to the peace, good order or security of the coastal
State" (article 19(2)(a)-(l)).

The definition of passage in article 18 is essentially the same as that
in article 14(2) and (3) of the Territorial Sea Convention. Three new
elements appear in article 18. First, the Convention recognizes that
ports of a coastal State may be located outside that State's internal
waters (as, for example, a roadstead or an offshore deep water port).
Second, the Convention makes explicit that passage through the
territorial sea must be continuous and expeditious. Third, the
Convention provides that passage includes stopping and anchoring for the
purpose of rendering assistance to persons, ships or aircraft in danger
or distress, thereby expanding upon the customary right of "assistance
entry."

Article 19(2) adds to the basic definition of innocent passage, i.e.,
that passage is innocent so long as it is not prejudicial to the peace,
good order, or security of the coastal State, an all-inclusive list of
activities considered to be prejudicial to the peace, good order, and
security, and therefore inconsistent with innocent passage. (Such
activities do not include the use of equipment employed to protect the
safety or security of the ship.) This list provides criteria by which
States can determine whether a particular passage is innocent.

Article 19(2) refers to activities that occur in the territorial sea.
This means that any determination of non-innocence of passage by a
transiting ship must be made on the basis of acts it commits while in
the territorial sea. Thus cargo, means of propulsion, flag, origin,
destination, or purpose of the voyage cannot be used as criteria in
determining that the passage is not innocent. This point is of major
national security significance, in particular because some 40 percent of
U.S. Navy combatant ships use nuclear propulsion.

Article 20 requires that submarines and other underwater vehicles must
navigate on the surface and show their flag while in the territorial
sea, unless the coastal State decides to waive that requirement (as has
been done in the NATO context).

Article 25(1) authorizes the coastal State to take appropriate measures
in the territorial sea to prevent passage that is not innocent.
Pursuant to Article 25(2), the coastal State also may take the measures
necessary to prevent any breach of the conditions for admission of
foreign ships to internal waters, as well as calls at a port facility
outside internal waters.

Article 21(4) requires foreign ships exercising the right of innocent
passage to comply with the laws and regulations enacted by the coastal
State in conformity with the Convention, as well as all generally
accepted international regulations relating to the prevention of
collisions at sea. Subject to the provisions regarding ships entitled
to sovereign immunity, this duty applies to all ships. However, the
Convention provides no authority for 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.

Articles 21-24 add new and useful details regarding the rights and
duties of coastal States and foreign ships. For purposes such as
resource conservation, environmental protection, and navigational
safety, a coastal State may establish certain restrictions upon the
right of innocent passage of foreign vessels, as set out in article 21.
This list is essentially new in the Convention and is exhaustive.

Such restrictions must be reasonable and necessary and not have the
practical effect of denying or impairing the right of innocent passage.
Article 24(1) provides that the restrictions must not discriminate in
form or in fact against the ships of any State or those carrying cargoes
to, from, or on behalf of any State. Pursuant to article 22, the
coastal State may, where necessary having regard to the safety of
navigation, require foreign ships exercising the right of innocent
passage to utilize designated sea lanes and traffic separation schemes;
tankers, nuclear powered vessels, and ships carrying dangerous or
noxious substances may be required to utilize such designated sea lanes.
Article 23 requires such ships, when exercising innocent passage, to
carry documents and observe special precautionary measures established
for such ships by international agreements, including the International
Convention for the Safety of Life at Sea, 1974, 32 UST 47, TIAS No. 9700
(SOLAS).

Article 21(2) imposes an additional limitation, that such laws and
regulations shall not apply to the design, construction, manning, or
equipment of foreign ships unless they are giving effect to generally
accepted international rules or standards established by the
International Maritime Organization (IMO). This rule does not affect
the right of the coastal State to establish and enforce its own
requirements for port entry, or preclude cooperation between coastal
States to enforce their respective port entry requirements. States may
also agree to establish higher standards for their ships or for trade
between them.

Article 24(2) requires the coastal State to give appropriate publicity
to any dangers to navigation of which it has knowledge within its
territorial sea.

Article 26 provides that no charge (such as a transit fee) may be levied
upon foreign ships by reason only of their passage through the
territorial sea. The only charges which may be levied are for specific
services rendered to the ship, and any such charges must be levied
without discrimination.

Temporary Suspension of Innocent Passage. Article 25(3) provides that:
the coastal State may, without discrimination in form or in fact among
foreign ships, suspend temporarily in specified areas of its territorial
sea the innocent passage of foreign ships if such suspension is
essential for the protection of its security, including weapons
exercises. Such suspension shall take effect only after having been
duly published.

The prohibition against discrimination "in form or in fact" is designed
to protect against acts which overtly discriminate in a manner that is
prohibited by the article (discrimination "in form") and also against
acts that, although not overtly discriminatory, have a discriminatory
effect (discrimination "in fact"). "Weapons exercises" includes weapons
testing.

Rules Applicable to Merchant Ships and Government Ships Operated for
Commercial Purposes (Articles 27 and 28). Article 27, concerning
criminal jurisdiction on board a foreign ship, and article 28,
concerning civil jurisdiction in relation to foreign ships, are taken
almost verbatim from articles 19 and 20 of the Territorial Sea
Convention, respectively, but have been expanded to include the regime
of the EEZ and the rules of Part XII on the protection and preservation
of the marine environment introduced by the Convention.

Rules Applicable to Warships and Other Government Ships Operated for
Non-commercial Purposes (Articles 29 to 32). Warships are defined in
article 29 for the purposes of the Convention as a whole, including
articles 95, 107, 110, 111 and 236. The Convention expands upon earlier
definitions, no longer requiring that such a ship belong to the "naval"
forces of a nation, under the command of an officer whose name appears
in the "Navy list" and manned by a crew who are under regular "naval"
discipline. Article 29 instead refers to "armed forces" to accommodate
the integration of different branches of the armed forces in various
countries, the operation of seagoing craft by some armies and air
forces, and the existence of a coast guard as a separate unit of the
armed forces of some nations, such as the United States.

Under article 30, the sole recourse available to a coastal State in the
event of noncompliance by a foreign warship with that State's laws and
regulations regarding innocent passage is to require the warship to
leave the territorial sea immediately.

Article 31 provides that the flag State bears international
responsibility for any loss or damage caused by its warships or other
government ships operated for non-commercial purposes to a coastal State
as a result of noncompliance with applicable law. This provision is
consistent with the modern rules of State responsibility in cases of
State immunity.

Article 32 provides, in effect, that the only rules in the Convention
derogating from the immunities of warships and government ships operated
for non-commercial purposes are those found in articles 17-26, 30 and
31.

Straits Used for International Navigation (Part III, Articles 34-39, 41-
45)

The navigational provisions of the Convention concerning international
straits are fundamental to U.S. national security interests. Merchant
ships and cargoes, civil aircraft, naval ships and task forces, military
aircraft, and submarines must be able to transit international straits
freely in their normal mode as a matter of right, and not at the
sufferance of the States bordering straits. The United States has
consistently made clear throughout its history that it is not prepared
to secure these rights through bilateral arrangements. The continuing
U.S. position is that these rights must form an explicit part of the law
of the sea. Part III of the Convention guarantees these rights.

With the expansion of the maximum permissible breadth of the territorial
sea from 3 to 12 miles, it was necessary to develop stronger guarantees
for navigation and overflight on, over, and under international straits.
Such rules were critical to maintain the essential balance of interests
between States bordering straits and other concerned States.

Part III applies to all straits used for international navigation,
regardless of width, including their approaches, unless there is a high
seas/EEZ route through the strait of similar convenience with respect to
navigational and hydrographic characteristics. Part III applies three
legal regimes to different kinds of straits used for international
navigation.

Transit passage applies to straits connecting one part of the high
seas/EEZ and another part of the high seas/EEZ (article 37), except as
noted below. The great majority of strategically important straits,
e.g., Gibraltar, Bonifacio, Bab el Mandeb, Hormuz, Malacca, Singapore,
Sunda, Lombok, and the Northeast, Northwest, and Windward Passages fall
into this category. However, it is use for inter- national navigation,
not importance, that is the basic legal criterion, as described below.

Archipelagic sea lanes passage replaces transit passage as the relevant
regime that applies to straits within archipelagic waters and the
adjacent territorial sea, where archipelagic waters affecting such
straits are established in accordance with Part IV of the Convention.
This would be the situation, for example, in the Sunda and Lombok
straits were Indonesia to designate archipelagic sea lanes. Transit
passage applies to routes through islands groups to which the provisions
regarding archipelagic waters do not apply.

Non-suspendable innocent passage applies to straits connecting a part of
the high seas/EEZ and the territorial sea of a foreign State (article
45(1)(b)), and to straits connecting one part of the high seas/EEZ and
another part of the high seas/EEZ where the strait is formed by an
island of a State bordering the strait and its mainland, if there exists
seaward of the island a route through the high seas/EEZ of similar
convenience with regard to navigation and hydrographic characteristics
(article 38(1)).

In addition, the Convention does not alter the legal regime in straits
regulated by long-standing international conventions in force
specifically relating to such straits. This provision refers to the
Turkish Straits (the Bosporus and Dardanelles, connecting the Black Sea
and the Aegean Sea via the Sea of Marmara) and the Strait of Magellan.

Transit Passage. Part III of the Convention protects long-standing
navigation and overflight rights in international straits through the
concept of transit passage. This is the regime governing the right of
free navigation and overflight for ships and aircraft in transit in,
over, and under straits used for international navigation. Recognition
of such a right was a fundamental requirement for a successful
Convention. With the extension by coastal States of their territorial
seas to 12 miles, over 100 straits, which previously had high seas
corridors, became overlapped by such territorial seas. Without
provision for transit passage, navigation and overflight rights in those
straits would have been compromised.

Read together, articles 38(2) and 39(1)(c) define transit passage as the
exercise of the freedom of navigation and overflight solely for the
purpose of continuous and expeditious transit in the normal modes of
operation utilized by ships and aircraft for such passage. For example,
submarines may transit submerged and military aircraft may overfly in
combat formation and with normal equipment operation; surface warships
may transit in a manner necessary for their security, including
formation steaming and the launching and recovery of aircraft, where
consistent with sound navigational practices. Article 38(3) provides
that any activity which is not an exercise of the right of transit
passage remains subject to the other applicable provisions of the
Convention.

Under article 44, a State bordering an international strait may not
suspend transit passage through international straits for any purpose,
including military exercises. Further, article 42(2) requires that the
laws and regulations of the State bordering a strait relating to transit
passage not be applied so as to have the practical effect of denying,
hampering or impairing the right of transit passage.

Innocent Passage in International Straits. Under article 45(1)(b), the
regime of innocent passage, rather than transit passage, applies in
straits used for international navigation that connect a part of the
high seas or an EEZ with the territorial sea of a coastal State. There
may be no suspension of innocent passage through such straits, and there
is no right of overflight in such straits. These so-called "dead-end"
straits include Head Harbour Passage leading through Canadian
territorial sea to the United States' Passamaquoddy Bay.

Under articles 38(1) and 45(1)(a), the regime of non-suspendable
innocent passage also applies in those straits formed by an island of a
State bordering the strait and its mainland, where there exists seaward
of the island a route through the high seas or EEZ of similar
convenience with regard to navigational and hydrographical
characteristics.

International Straits Not Completely Overlapped by Territorial Seas.
The effect of article 36 is that ships and aircraft transiting through
or above straits used for international navigation which are not
completely overlapped by territorial seas and through which there is a
high seas or EEZ corridor suitable for such navigation enjoy the high
seas freedom of navigation and overflight while operating in and over
such a corridor.

Moreover, if the high seas route is not of similar convenience with
respect to navigational or hydrographical characteristics, the regime of
transit passage applies within such straits. Thus, for example, a
submarine may transit submerged through the territorial sea in a strait
not completely overlapped by territorial seas where the territorial sea
route is the only one deep enough for submerged transit.

"Straits Used for International Navigation." Under the Convention, the
criteria in identifying an international strait is not the name, the
size or length, the presence or absence of islands or multiple routes,
the history or volume of traffic flowing through the strait, or its
relative importance to international navigation. Rather, the decisive
criterion is its geography: The fact that it is capable of being used
for international navigation to or from the high seas or the EEZ.

The geographical definition contemplates a natural strait and not an
artificially constructed canal. Thus, the transit passage regime does
not apply to the Panama and Suez Canals.

Legal Status of Waters Forming International Straits. The regime of
passage through international straits does not affect the legal status
of these waters or the sovereignty or jurisdiction of the States
bordering straits (article 34(1)). Article 34(2) requires States
bordering straits to exercise their sovereignty and jurisdiction in
accordance with Part III and other rules of international law. States
bordering straits must not impede the right of transit passage.

Rights and Duties of States Bordering Straits. Articles 41-44 address
the rights and duties of States bordering straits relating to a number
of topics, including navigational safety and the prevention, reduction,
and control of pollution from ships engaged in transit passage.

Pursuant to article 41, States bordering straits may designate sea lanes
and prescribe traffic separation schemes to promote navigational safety.
However, such sea lanes and separation schemes must conform to generally
accepted international standards and be approved by the competent
international organization (i.e., the IMO) before the sea lanes and
traffic separation schemes may be put into effect. Ships in transit
must respect properly designated sea lanes and traffic separation
schemes. Such traffic separation schemes now exist in strategic straits
such as Hormuz, Gibraltar and Malacca.

Article 42 specifically authorizes States bordering straits to adopt
nondiscriminatory laws and regulations relating to transit passage
through straits in respect of the safety of navigation and regulation of
maritime traffic as provided in article 41; the prevention, reduction
and control of pollution by giving effect to applicable international
regulations regarding the discharge of oil, oily wastes and other
noxious substances in the strait (i.e., the Protocol of 1978 relating to
the International Convention for the Prevention of Pollution from Ships,
1973, with annexes (95th Cong., 1st Sess., Sen. Ex. E, 96th Cong., 1st
Sess., Sen. Ex. C (MARPOL) and any applicable regional agreement); the
prevention of fishing, including the stowage of fishing gear by fishing
vessels; and the loading or unloading of any commodity, currency or
person in contravention of the customs, fiscal, immigration or sanitary
laws and regulations of States bordering straits. Due publicity must be
given to these laws and regulations, and foreign ships exercising the
right of transit passage are required by article 42(4) to comply with
them (subject to the provisions of the Convention regarding ships
entitled to sovereign immunity).

Article 43 encourages users and States bordering straits to cooperate by
agreement in the establishment and maintenance of necessary navigational
or safety aids in the strait, and in other improvements in aid of
international navigation, and for the prevention, reduction and control
of pollution from ships. The IMO has been active in promoting such
cooperation.

Duties of Ships and Aircraft During Transit Passage (Article 39).
Article 39(1) defines the common duties both ships and aircraft have
while exercising the right of transit passage. They include the duty to
proceed without delay through or over the strait, to refrain from the
threat or use of force against States bordering straits, to refrain from
any activities other than those incident to their normal modes of
continuous and expeditious transit (unless rendered necessary by force
majeure or by distress), and to comply with other relevant provisions of
Part III.

In addition, ships in transit passage are required by article 39(2) to
comply with the International Regulations for Preventing Collisions at
Sea, 1972, 28 UST 3459, TIAS No. 8587 (COLREGS), and other generally
accepted international regulations, procedures and practices for safety
at sea and for the prevention, reduction and control of pollution from
ships (i.e., those adopted by the IMO).

Aircraft in transit passage are required to observe the ICAO Rules of
the Air (Annex 2 to the International Convention on Civil Aviation (61
Stat. 1180, TIAS No. 1591, 15 UNTS 295 (Chicago Convention)), as they
apply to civil aircraft. Article 39(3)(a) states that State aircraft
will normally comply with such safety measures and operate at all times
with due regard for the safety of navigation, as required by article
3(d) of the Chicago Convention. Aircraft in transit passage are also
required to maintain a continuous listening watch on the appropriate
frequency.

Archipelagic States (Part IV, Articles 46-54)

Part IV represents a successful resolution, following years of
controversy, of the effort, led by Indonesia and the Philippines, to
achieve a special regime for archipelagic States. The United States and
other maritime States were willing to recognize the concept of
archipelagic States only if its application were limited and precisely
defined and did not impede rights of navigation and overflight. In
effect, the concept of archipelagic States creates a geographic
situation requiring the same kind of solution as transit passage of
straits, i.e., the right of navigation and overflight on, over, and
under the waters enclosed. Acceptance of this principle guarantees
critical U.S. military and commercial navigation rights.

Article 46 describes an archipelagic State as one "constituted wholly by
one or more archipelagos" and may include other islands. It defines an
"archipelago" as a:

group of islands, including parts of islands, inter-connecting waters
and other natural features which are so closely interrelated that such
islands, waters and other natural features form an intrinsic
geographical, economic and political entity, or which historically have
been regarded as such.

Thus, the special regime of Part IV only applies to island States; a
continental State may not claim archipelagic waters.

Archipelagic Baselines. A State may enclose archipelagic waters within
archipelagic baselines that satisfy the criteria specified in article
47. Depending on how the archipelagic baseline system is established,
the following 20 States could legitimately claim archipelagic waters:
Antigua & Barbuda, The Bahamas, Cape Verde, Comoros, Fiji, Grenada,
Indonesia, Jamaica, Kiribati (in part), Maldives, Marshall Islands (in
part), Papua New Guinea, Philippines, Saint Vincent and the Grenadines,
Sao Tome & Principe, Seychelles, Solomon Islands (five archipelagos),
Tonga, Trinidad & Tobago, and Vanuatu.

The legal status of archipelagic waters, of the air space over
archipelagic waters, and of their bed and subsoil is described in
article 49. Article 51 addresses existing agreements, traditional
fishing rights, and existing submarine cables. Archipelagic States
measure the breadth of their various maritime zones from the
archipelagic baselines. They may also draw closing lines delimiting
internal waters of individual islands following the rules set out in
articles 9-11.

Navigation and Overflight in Archipelagos. The right to navigate on,
under, and over archipelagic waters by all kinds of ships and aircraft
was a critical goal of the United States during the negotiations leading
to the Convention. As with respect to the right of transit passage
through international straits, the result of the negotiation fully
protects this right.

Archipelagic sea lanes passage is very similar to the concept of transit
passage. Article 53(3) defines archipelagic sea lanes passage as the
exercise of the rights of navigation and overflight in the normal mode
solely for the purpose of "continuous, expeditious and unobstructed
transit" through archipelagic waters. For example, submarines may
transit submerged and military aircraft may overfly in combat formation
and with normal equipment operation; surface warships may transit in a
manner necessary for their security, including formation steaming and
the launching and recovery of aircraft, where consistent with sound
navigational practices. The provisions regarding the width of
archipelagic sea lanes were specifically designed to accommodate
defensive formations and navigation practices normally used in open
waters. Article 54, referring back to article 44, provides that the
right of archipelagic sea lanes passage cannot be impeded or suspended
by the archipelagic State for any reason.

All ships and aircraft, including warships and military aircraft, enjoy
the right of archipelagic sea lanes passage while transiting through,
under, or over the waters of archipelagos and adjacent territorial seas
via archipelagic sea lanes. Articles 53(4) and 53(12) mean that
archipelagic sea lanes passage must be respected in all routes normally
used for international navigation and overflight, whether or not sea
lanes are actually designated under the Convention.

Article 53 permits an archipelagic State to designate sea lanes and air
routes for the exercise of archipelagic sea lanes passage. Such
archipelagic sea lanes "shall include all normal passage routes . . .
and all normal navigational channels . . . ." Each sea lane is defined
by a continuous line from the point of entry into the archipelago to the
point of exit. Ships and aircraft in designated archipelagic sea lanes
passage are required to remain within 25 miles from either side of the
axis line and must approach no closer to the coastline than 10 percent
of the distance between the nearest islands.

Archipelagic sea lanes must conform to generally accepted inter-
national regulations, and must be referred to the "competent
international organization," the IMO, with a view to their adoption,
before implementation. Only after adoption by the IMO may the
archipelagic State implement archipelagic sea lanes. No archipelagic
State has yet submitted any proposal to the IMO.

The elements of the transit passage regime for international straits
apply to archipelagic sea lanes passage. Article 54 applies, mutatis
mutandis, the provisions of articles 39 (duties of ships and aircraft
during their passage), 40 (research and survey activities), and 42 and
44 (laws, regulations, and duties of States bordering straits relating
to passage).

Article 52 provides that innocent passage applies in archipelagic waters
other than designated archipelagic sea lanes or the routes through which
archipelagic sea lanes passage is guaranteed. All the normal rules of
innocent passage apply, and there is no right of overflight or submerged
passage. In island groups where a State either may not claim
archipelagic waters under the Convention, or has not done so, the other
rules of the Convention apply, including the rules regarding transit
passage of straits.

The Contiguous Zone (Article 33)

In the contiguous zone, vessels and aircraft enjoy the same high seas
freedoms of navigation and overflight as in the EEZ.

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

From the perspective of the United States, Part V (articles 55-75)
provides a regime for the EEZ that achieves a proper, long-term balance
between coastal interests and maritime interests. These provisions
enable the coastal State to explore, exploit, conserve and manage
resources out to 200 miles from coastal baselines, while allowing other
States to navigate, overfly and conduct related activities in the EEZ.

The United States is far and away the world's primary beneficiary in
each respect. From a coastal perspective, the United States has an EEZ
which is among the largest and richest of any in the world, with
extensive living and non-living resources. From a maritime perspective,
U.S. military and commercial ships and aircraft, as well as U.S. trade
and communications, are guaranteed in the EEZs of other States essential
navigational and related freedoms, from military exercises to laying
cables and pipelines.

Article 56 defines the rights, jurisdiction, and duties of the coastal
State in the EEZ. Paragraph 1 of this article distinguishes sovereign
rights and jurisdiction, as follows:

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

(a) sovereign rights for the purpose of exploring and exploiting,
conserving and managing the natural resources, whether living or non-
living, of the waters superjacent to the sea-bed and of the sea-bed and
its subsoil, and with regard to other activities for the economic
exploitation and exploration of the zone, such as the production of
energy from the water, currents and winds;

(b) jurisdiction as provided for in the relevant provisions of the
Convention with regard to:
(i) the establishment and use of artificial islands, installations
and structures (i.e., article 60);
(ii) marine scientific research (i.e., Part XIII);
(iii) the protection and preservation of the marine environment
(i.e., Part XII, particularly article 220);

Article 56 enumerates the rights of the coastal State in the EEZ.
Article 56(1)(a) establishes the sovereign rights of the coastal State.
Article 56(1)(b) sets forth the nature and scope of coastal State
jurisdiction with respect to specific matters. The terms "sovereign
rights" and "jurisdiction" are used to denote functional rights over
these matters and do not imply sovereignty. A claim of sovereignty in
the EEZ would be contradicted by the language of articles 55 and 56 and
precluded by article 58 and the provisions it incorporates by reference.

Pursuant to Article 58, in the EEZ all States enjoy the high seas
freedoms of navigation and overflight, laying of submarine cables and
pipelines, and other internationally lawful uses of the seas related to
those freedoms, such as those associated with the operation of ships,
aircraft and submarine cables and pipelines, and which are compatible
with the other provisions of the Convention. Articles 88 to 115, which
(apart from the fuller enumeration of freedoms in article 87) set forth
the entire regime of the high seas on matters other than fisheries,
apply to the EEZ in so far as they are not incompatible with Part V.
These rights are the same as the rights recognized by international law
for all States on the high seas.

Military activities, such as anchoring, launching and landing of
aircraft, operating military devices, intelligence collection,
exercises, operations and conducting military surveys are recognized
historic high seas uses that are preserved by article 58. Under that
article, all States have the right to conduct military activities within
the EEZ, but may only do so consistently with the obligation to have due
regard to coastal State resource and other rights, as well as the rights
of other States as set forth in the Convention. It is the duty of the
flag State, not the right of the coastal State, to enforce this "due
regard" obligation.

The concept of "due regard" in the Convention balances the obligations
of both the coastal State and other States within the EEZ. Article
56(2) provides that coastal States "shall have due regard to the rights
and duties of other States" in the EEZ. Article 58(3) places similar
requirements on other States in exercising their rights, and in
performing their duties, in the EEZ. Although it is not specific,
article 59 provides a basis for resolving disputes over any rights and
duties not allocated by articles 56, 58 and other provisions of the
Convention. The conflict "should be resolved on the basis of equity and
in the light of all the relevant circumstances, taking into account the
respective importance of the interests involved to the parties as well
as to the international community as a whole."

Article 60 sets out the provisions permitting the coastal State to
construct and to authorize and regulate the construction, operation, and
use of artificial islands, installations and structures used for the
purposes provided for in article 56(1) and other economic purposes, and
other installations and structures that may interfere with the exercise
of the coastal State's rights in its EEZ. This provision does not
preclude the deployment of listening or other security-related devices.
Article 60(3) requires the coastal State to give "due notice" of
artificial islands, installations and structures and to remove those no
longer in use in accordance with generally accepted international
standards established by the IMO (e.g., IMO Assembly Resolution
A.672(16)). Article 60(4)-(6) permits the coastal State to establish
and give notice of reasonable safety zones around such structures not to
exceed 500 meters in breadth except in accordance with generally
accepted international standards or as recommended by the IMO, and
requires ships to respect the zone and generally accepted international
navigational standards.

Article 60(7) provides that artificial islands, installations and
structures, and the safety zones around them, may not be located where
they may cause interference with the use of recognized sea lanes
essential to international navigation.

Of the remaining 15 articles on the EEZ (articles 61-75), 13
specifically relate to living resources jurisdiction in the zone, and
are discussed below in the section on living marine resources; the other
two are discussed below in the section on maritime boundary
delimitation.

Consistent with article 73, the coastal State may, in the exercise of
its sovereign rights over living resources in the EEZ, take such
measures, including boarding, inspection, arrest, and judicial
proceedings against foreign vessels as are necessary to ensure
compliance with its rules and regulations adopted in conformity with the
Convention. Arrested vessels and their crews are to be promptly
released upon the posting of reasonable bond or other security. In
cases of arrest or detention of foreign vessels, the coastal State is
required to notify the flag State promptly, through appropriate
channels, of the action taken and of any penalties imposed.

While no State has claimed an EEZ extending beyond 200 miles from
coastal baselines, several of the States which have declared EEZs claim
rights to regulate activities within the EEZ well beyond those
authorized in the Convention. For example, Iran claims the right to
prohibit all foreign military activities within its EEZ. The United
States does not recognize such claims, which are not within the
competence of coastal States under the Convention. Accession to the
Convention will significantly enhance the ability of the United States
to deal with such excessive claims, and to prevent their proliferation,
on the basis of the balance of interests reflected in the Convention.

High Seas (Part VII, Articles 86-115)

Freedom to navigate and operate on, over, and under the high seas is a
central requirement of the United States. The high seas provisions of
the Convention reproduce the provisions of the 1958 Convention on the
High Seas, 13 UST 2312, TIAS No. 5200 (High Seas Convention), with some
very useful clarifications and updating that, for example, protect
scientific research and facilitate enforcement against drug smuggling
and unauthorized broadcasting. The relatively sparse anti-pollution
provisions of the High Seas Convention have been replaced by the strong
and elaborate environmental provisions discussed in the next section of
this Commentary.

Pursuant to article 87, all ships and aircraft, including warships and
military aircraft, enjoy freedom of movement and operation on and over
the high seas. For warships and military aircraft, this includes task
force maneuvering, flight operations, military exercises, surveillance,
intelligence gathering activities, and ordnance testing and firing.

All of these activities must be conducted with due regard for the rights
of other States and the safe conduct and operation of other ships and
aircraft. The exercise of any of these freedoms is subject to the
conditions that they be taken with "reasonable" regard, according to the
High Seas Convention, or "due" regard, according to the LOS Convention,
for the interests of other nations in light of all relevant
circumstances. There is no substantive difference between the two
terms. The "reasonable regard/due regard" standard requires any using
State to be cognizant of the interests of others in using a high seas
area, to balance those interests with its own, and to refrain from
activities that unreasonably interfere with the exercise of other
States' high seas freedoms in light of that balancing of interests.
Articles 87, 89, and 90 prohibit any State's attempt to impose its
sovereignty on the high seas; they are open to use by all States,
whether coastal or land-locked.

Security Zones. Some coastal States have claimed the right to establish
military security zones, beyond the territorial sea, in which they
purport to regulate the activities of warships and military aircraft of
other nations by such restrictions as prior notification or
authorization for entry, limits on the number of foreign ships or
aircraft present at any given time, prohibitions on various operational
activities, or complete exclusion. There is no basis in the Convention,
or other sources of international law, for coastal States to establish
security zones in peacetime that would restrict the exercise of non-
resource-related high seas freedoms beyond the territorial sea.
Accordingly, the United States does not recognize the peacetime validity
of any claimed security or military zone seaward of the territorial sea
which purports to restrict or regulate the high seas freedoms of
navigation and overflight, as well as other lawful uses of the sea.

Peaceful purposes (article 88) is discussed below in connection with
article 301, on peaceful uses of the seas, in the section on general
provisions.

Nationality, Status, and Duties of Ships (Articles 91-96). Articles 91-
92 pertain to the nationality and status of ships. Article 91 requires,
inter alia, that, for a State to grant its nationality to a ship, there
must be a genuine link between the flag State and the ship. Article 92
provides that ships shall sail under the flag of one State only, save in
certain exceptional cases, and be subject only to that State's
jurisdiction while on the high seas. A ship that sails under two or
more flags, using them according to convenience, may not claim any of
the nationalities in question and may be treated as a stateless vessel.

Article 93 deals explicitly with ships flying the flag of the United
Nations and its specialized agencies or the International Atomic Energy
Agency. Article 94 sets out new, stricter duties of flag States with
respect to their vessels, including such duties regarding the safety of
navigation, that have been elaborated primarily under the auspices of
the IMO.

While the general rule of exclusive flag State jurisdiction over vessels
on the high seas has long standing in international law, the United
States and other members of the international community have developed
procedures for resolving problems that have arisen in certain contexts,
including drug smuggling, illegal immigration and fishing, when States
are unable or unwilling to exercise responsibility over vessels flying
their flag. These procedures, several of which are contained in
international agreements, typically seek to ensure that the flag State
gives expeditious permission to other States for the purpose of
boarding, inspection and, where appropriate, taking law enforcement
action with respect to its vessels.

Sovereign Immunity (Articles 29-32, 95-96, 236). The Convention
protects and strengthens the key principle of sovereign immunity for
warships and military aircraft. Although not a new concept, sovereign
immunity is a principle of vital importance to the United States. The
Convention provides for a universally recognized formulation of this
principle.

As discussed above, with respect to the territorial sea regime, articles
29 through 32 set forth the sovereign immunity rules applicable to
warships and other government ships operated for non-commercial
purposes.

Article 32 provides that, with such exceptions as are contained in
subsection A and in articles 30 and 31 (discussed above), nothing in the
Convention affects the immunities of warships and other government ships
operated for non-commercial purposes.

Regarding the definition of "warship," article 29 expands the
traditional definition to include all ships belonging to the armed
forces of a State bearing the external markings distinguishing the
character and nationality of such ships, under the command of an officer
duly commissioned by the government of that State and whose name appears
in the appropriate service list of officers, and manned by a crew which
is under regular armed forces discipline. A ship need not be armed to
be regarded as a warship.

Concerning government ships operated for non-commercial purposes, these
would include auxiliaries, which are vessels, other than warships, that
are owned or operated by the armed forces. Like warships, they are
immune from arrest and search, whether in port or at sea, and exempt
from foreign taxes and enforcement of foreign laws and regulations;
further, the flag State exercises exclusive control over all passengers
and crew onboard.

Articles 95-96 address these issues with respect to the high seas
regime. Article 95 provides that warships on the high seas have
complete immunity from the jurisdiction of any State other than the flag
State. Article 96 provides that ships owned or operated by a State and
used only on government non-commercial service shall, on the high seas,
have complete immunity from the jurisdiction of any State other than the
flag State.

Finally, article 236 makes clear that the provisions of Part XII do not
apply to any warship, naval auxiliary, other vessels or aircraft owned
or operated by a State and used, for the time being, only on government
non-commercial service. However, each State must ensure, by the
adoption of appropriate measures not impairing operations or operational
capabilities of such vessels or aircraft owned or operated by it, that
such vessels or aircraft act in a manner consistent, so far as is
reasonable and practicable, with the Convention.

Penal Jurisdiction in Matters of Collision or Any Other Incident of
Navigation (Article 97). Article 97 restates existing international law
relating to this subject.

Assistance to Persons, Ships, and Aircraft in Distress (Article 98).
The law has long realized the importance of rendering assistance to
persons in distress at sea. Article 98 replicates verbatim article 12
of the High Seas Convention. The duty to rescue also appears in the
International Convention for the Unification of Certain Rules Relating
to Salvage of Vessels at Sea, September 23, 1910, 37 Stat. 1658, TIAS
No. 576, and the International Convention on Salvage, 1989, article 10,
Sen. Treaty Doc. 102-12. Article 98 is implemented by 46 U.S.C. $$ 2303
& 2304.

Duty of Masters. In addition, the United States is a Party to the SOLAS
Convention, which requires the master of every merchant ship and private
vessel not only to speed to the assistance of persons in distress, but
to broadcast warning messages with respect to dangerous conditions or
hazards encountered at sea (Chapter V, Regulations 10 and 2).

Prohibition of the Transport Of Slaves (Article 99). Article 99 is
identical to article 13 of the High Seas Convention and relates to the
Convention to Suppress the Slave Trade and Slavery of September 25,
1926, 46 Stat. 2183, TS No. 778, 2 Bevans 607, 60 LNTS 253; the Protocol
of December 7, 1953 Amending the Slavery Convention of September 25,
1926, 7 UST 479, TIAS No. 3532, 182 UNTS 51; and the Supplementary
Convention on the Abolition of Slavery, the Slave Trade and Institutions
and Practices Similar to Slavery of September 5, 1956, 18 UST 3201, TIAS
No. 6418, 266 UNTS 3. This obligation is implemented in 18 U.S.C. $$
1581-88 (1982), and gives effect to the policy enunciated by the
Thirteenth Amendment to the Constitution of the United States.

The Slavery Convention, Amending Protocol, and Supplementary Convention
do not authorize nonconsensual high seas boarding by foreign flag
vessels. Nevertheless, article 22(1) of the High Seas Convention
authorized nonconsensual boarding by a warship where there exists
reasonable ground for suspecting that a vessel is engaged in the slave
trade. Article 110(1)(b) of the LOS Convention reaffirms this approach.

Piracy (Articles 100-107). Despised by all nations since earliest
recorded history, piracy continues to be a major problem in certain
parts of the world. Articles 100-107 reaffirm the rights and
obligations of all States to suppress piracy on the high seas.
The U.S. Constitution (article I, section 8) provides that:

The Congress shall have Power . . . to define and punish piracies and
felonies committed on the high seas, and offences against the Law of
Nations.

Congress has exercised this power by enacting 18 U.S.C. $ 1651, which
provides that:

Whoever, on the high seas, commits the crime of piracy as defined by the
law of nations, and is afterwards brought into or found in the United
States, shall be imprisoned for life.

Congress has further exercised this power, including with respect to
certain acts not regarded as piracy under international law, by enacting
18 U.S.C. $$ 1651-61 (piracy), 49 U.S.C. $$ 1472(i)-(n) (aircraft
piracy), 33 U.S.C. $$ 381-84 (regulations for suppression piracy), and
18 U.S.C. $$ 1654 (privateering). These statutes provide a firm basis
for implementing the relevant provisions of the Convention and other
applicable international law.

Suppression of International Narcotics Traffic (Article 108). Article
108 of the Convention provides a valuable additional tool in support of
the war on illicit drugs. This article requires all States to cooperate
in the suppression of illicit traffic in narcotic drugs and psychotropic
substances engaged in by ships on the high seas contrary to
international conventions. This article also permits any State which
has reasonable grounds for believing that a ship flying its flag is
engaged in illicit traffic to request the cooperation of other States to
suppress such traffic.

This principle finds expression in other international law, including in
the Single Convention on Narcotic Drugs, 1961, 18 UST 1407, TIAS No.
6298, 520 UNTS 204. Article 17 of the 1988 United Nations Convention
against Illicit Traffic in Narcotic Drugs and Psychotropic Substances,
Sen. Treaty Doc. 101-4, also mandates a consensual regime for the
boarding of foreign flag vessels suspected of drug trafficking at sea.
The United States has entered into a number of bilateral maritime
counter-narcotics agreements, for example with the United Kingdom (33
UST 4224, TIAS No. 10296, 1285 UNTS 197), Belize (TIAS No. 11914),
Panama (TIAS No. 11833) and Venezuela (TIAS No. 11827).

Implementing legislation in this field includes 49 U.S.C. $$ 781-789, 14
U.S.C. $ 89, 22 U.S.C. $2291, and 46 U.S.C. App. $ 1903 et seq.

Suppression of Unauthorized Broadcasting (Article 109). Article 109 is
designed to aid in the suppression of "pirate broadcasting" and supports
the Regulations annexed to the 1973 International Telecommunication
Convention, 28 UST 2495, TIAS No. 8572; the 1982 International
Telecommunication Convention, 99th Cong., 1st Sess. Treaty Doc. 99-6;
and the 1979 Radio Regulations, 97th Cong., 1st Sess. Treaty Doc. 97-21.
Unauthorized broadcasting from international waters is made a crime in
the United States by 47 U.S.C. $ 502 (1982).

Warship's Right of Approach

And Visit (Article 110). Article 110 of the Convention reaffirms the
right of warships, military aircraft or other duly authorized ships or
aircraft to approach and visit other vessels to ensure that they are not
engaged in various illegal activities. This is a right of great
importance to the United States. Article 110 permits the right of visit
to be exercised if there are reasonable grounds for suspecting that a
foreign flag vessel is engaged in piracy, the slave trade, or
unauthorized broadcasting; is without nationality; or is, in reality, of
the same nationality as the warship. The maintenance and continued
respect for these rights are essential to maritime counter-narcotics and
alien smuggling interdiction operations.

Hot Pursuit (Article 111). Article 111 of the Convention provides a
detailed elaboration of the concept of "hot pursuit," based on article
23 of the High Seas Convention. However, the Convention expands this
concept to take into account the development of the EEZ and archipelagic
waters, and provides further details with respect to aircraft engaged in
hot pursuit. These modifications increase U.S. ability to pursue
criminals, such as drug traffickers, as well as those who violate U.S.
fisheries laws.

Cables and Pipelines (Articles 79, 87(1)(c), 112-115). The provisions
on submarine cables and pipelines codify the right to lay and operate
them. These provisions replicate their counterparts in article 4 of the
Convention on the Continental Shelf, 15 UST 471, TIAS No. 5578, and
articles 26-29 of the High Seas Convention, which themselves reflect the
provisions of the 1884 Convention on the Protection of Submarine Cables,
24 Stat. 989, TS No. 380, as amended 25 Stat. 1414, TS Nos. 380-1 and
380-2, 380-3, 1 Bevans 89, 112, 114. The 1884 Submarine Cables
Convention is implemented in 47 U.S.C. $ 21 et seq. (1982).

Submarine cables include telegraph, telephone, and high-voltage power
cables, which are essential to modern communications. In light of the
extra-ordinary costs and increasing importance to the world economy of
undersea telecommunications cables, particularly the new fiber-optic
cables, it is significant that the Convention strengthens the
protections for the owners and operators of these cables in the event of
breakage.

Pipelines include those which deliver water, oil and natural gas, and
other commodities. The Convention recognizes that pipelines may pose an
environmental threat to the coastal State and, therefore, it increases
the authority of the coastal State on its continental shelf over the
location of pipelines and with respect to pollution therefrom.

ITEM 6:

PROTECTION AND PRESERVATION OF THE MARINE ENVIRONMENT (PART XII,
ARTICLES 192-237)

The Law of the Sea Convention is the strongest comprehensive
environmental treaty now in existence or likely to emerge for quite some
time. Part XII establishes, for the first time, a comprehensive legal
framework for the protection and preservation of the marine environment.
By addressing all sources of marine pollution, such as pollution from
vessels, sea-bed activities, ocean dumping, and land-based sources, Part
XII promotes continuing improvement in the health of the world's oceans.
It effectively and expressly balances economic and environmental
interests in general, and the interests of coastal states in protecting
their environment and natural resources with the rights and freedoms of
navigation in particular. Compliance with Part XII's environmental
obligations is subject to compulsory arbitration or adjudication.

Part XII thus creates a positive and unprecedented framework for marine
environmental protection that will encourage all Parties to take their
environmental obligations seriously and come together to address issues
of common and pressing concern.

Definitions (Article 1)

Article 1 defines two terms used in Part XII: "pollution of the marine
environment" and "dumping." The term "marine environment" is understood
to include living resources, marine ecosystems, and the quality of
seawater.

General Obligations (Articles 192-196)

Section 1 sets forth general provisions relating to the protection and
preservation of the marine environment. Article 192 clearly establishes
the legal duty of all States to protect and preserve the marine
environment. The remaining provisions require States, inter alia, to
adopt pollution control measures to ensure that activities under their
control are conducted so as not to cause environmental damage to other
States or result in the spread of pollution beyond their own offshore
zones.

Global and Regional Cooperation (Articles 197-201)

Section 2 provides for global and regional cooperation for the
protection and preservation of the marine environment. Cooperation
includes, inter alia, development of rules, standards, and recommended
practices and procedures for the protection and preservation of the
marine environment (article 197), notification of imminent or actual
damage to other States likely to be affected (article 198), development
of contingency plans to respond to pollution incidents (article 199),
promotion of research and exchange of information (article 200), and
establishment of appropriate scientific criteria for rules, standards
and recommended practices and procedures for the prevention, reduction
and control of pollution of the marine environment (article 201).
(Article 242 adds provisions for international cooperation in research
for environmental purposes.)

Technical Assistance (Articles 202-203)

Section 3 provides for the promotion of programs and appropriate
scientific and technical assistance related to protection and
preservation of the marine environment, especially to developing States.

Monitoring and Environmental Assessment (Articles 204-206)

Section 4 establishes rules for monitoring and environmental assessment.
Article 204 sets forth obligations relating to monitoring the risks or
effects of pollution on the marine environment, including the effects of
activities which States permit or in which they engage.

Article 206 relates to the environmental assessment of certain
activities on the marine environment. When States have reasonable
grounds for believing that planned activities under their jurisdiction
or control may cause substantial pollution of or significant and harmful
changes to the marine environment, they shall, as far as practicable,
assess the potential effects of such activities on the marine
environment and shall communicate reports of the results of such
assessments in the manner provided in article 205. (The requirements
for assessment of potential environmental impacts of deep sea-bed mining
activity are discussed below in connection with the deep sea-bed mining
provisions of the Convention and the 1994 Agreement generally.)

International Rules and National Legislation to Prevent, Reduce, and
Control Pollution of the Marine Environment (Articles 207-212)

Section 5 obligates States to adopt laws and regulations to prevent,
reduce and control pollution of the marine environment from land-based
sources, sea-bed activities subject to national jurisdiction, deep sea-
bed mining (activities in the Area), ocean dumping, vessels, and the
atmosphere. As a general rule, these articles require States to adopt
laws and regulations that are no less effective than international
rules; to endeavor to harmonize their policies at the regional level;
and to cooperate to develop international rules.

Although States are not legally bound by an international agreement to
which they are not party, the requirement that their national laws at
least have the same effect as, or be no less effective than,
internationally agreed minimum standards of environmental protection is
an important step forward in marine environmental protection.

Below is a discussion of the status of the development of international
standards, national legislation, and other international activity
relating to the sources of pollution identified in section 5, noting
where the United States has already implemented these articles.

Pollution From Land-based Sources (Article 207). The Convention will be
the first legally binding global agreement governing marine pollution
from land-based sources. Article 207 requires that national laws for
the prevention of marine pollution from land-based sources take into
account internationally agreed standards. The Montreal Guidelines for
the Protection of the Marine Environment Against Pollution from Land-
Based Sources, adopted by the Governing Council of the United Nations
Environment Program (Decision 13/18/II of the Governing Council of UNEP
of May 24, 1985), are internationally agreed guidelines adopted with a
view to assisting governments in developing international agreements and
national legislation relating to land-based sources of pollution.

Since land-based sources of pollution continue to account for
approximately 80 percent of all marine pollution, global discussions are
ongoing in an effort to address more fully this source of pollution. In
recognition of the importance of this problem and as an outgrowth of the
1992 United Nations Conference on Environment and Development, the
United States in late 1995 will host an international conference on
land-based sources of marine pollution. This conference is expected,
inter alia, to result in a global action plan to address land-based
sources of marine pollution.

On a regional basis, the United States is party to two regional
agreements that contain general provisions on land-based sources of
marine pollution: the Convention for the Protection of the Natural
Resources and Environment of the South Pacific Region (the SPREP
Convention), Sen. Treaty Doc. 101-21, and the Convention for the
Protection and Development of the Marine Environment of the Wider
Caribbean Region (the Cartagena Convention), TIAS No. 11085. Under the
auspices of the Cartagena Convention and the United Nations Regional
Seas Program, the United States and other Caribbean States are presently
considering the need for, and elements of, a possible protocol to the
Cartagena Convention on land-based sources of marine pollution. In
addition, the Protocol on Environmental Protection to the Antarctic
Treaty, Sen. Treaty Doc. 102-22, to which the United States is a
signatory, and the Arctic Environmental Protection Strategy address
land-based sources of marine pollution.

The United States already has national legislation addressing land-based
sources of marine pollution; this legislation takes into account the
recommendations of the Montreal Guidelines described above. U.S. laws
include the Clean Water Act, 33 U.S.C. $$ 1251-1387, which specifically
addresses marine water quality, and other statutes (such as the Solid
Waste Disposal Act, 42 U.S.C. $$ 6901-6992, the Comprehensive
Environmental Response, Compensation, and Liability Act, 42 U.S.C. $
9601-9675, and the Federal Insecticide, Fungicide, and Rodenticide Act,
7 U.S.C. $$ 136-136y) which regulate the release of pollutants and other
materials into the environment. See also the Refuse Act, 33 U.S.C. $
407 et seq., and the Coastal Zone Management Act of 1972, 16 U.S.C. $
1451 et seq.

Pollution From Sea-bed Activities Subject to National Jurisdiction
(Article 208). The Convention will be the first legally binding global
agreement governing pollution from sea-bed activities. Article 208
requires that coastal State laws governing pollution from sea-bed
activities be no less effective than international rules and standards.
Although there are many potential sea-bed activities, including the
mining of coral, placers, and sand, the most common sea-bed activity is
the exploration and exploitation of oil and gas. Internationally, the
need for regulation of this industry is reviewed periodically by the
IMO. Regionally, article 8 of the SPREP Convention and article 8 of the
Cartagena Convention address pollution from sea-bed activities.

The United States has domestic legislation that addresses pollution from
sea-bed activities of persons subject to U.S. jurisdiction, both in
areas subject to U.S. jurisdiction and beyond. These include the Outer
Continental Shelf Lands Act, 33 U.S.C. $$ 1331-1356 and the Deep Seabed
Hard Minerals Resources Act ("DSHMRA"), 30 U.S.C. $$ 1401 et seq.

Pollution From Deep Sea-bed Mining (Activities in the Area) (Article
209). International rules and national legislation relating to
pollution from deep sea-bed mining have yet to be developed. As
discussed in the section of this Commentary on deep sea-bed mining, the
environmental protection provisions of the Convention relating to
activities in the Area are quite strong and comprehensive. The 1994
Agreement further strengthens these provisions by requiring, inter alia,
that all applications for approval of plans of work be accompanied by an
assessment of the potential environmental impacts of the proposed
activities and that the International Sea-bed Authority adopt rules,
regulations and procedures on marine environmental protection as part of
its early functions prior to the approval of the first plan of work for
exploitation (Annex, section 1(5)(g), (7)). The DSHMRA addresses
pollution from sea-bed activities of persons subject to U.S.
jurisdiction in areas beyond national jurisdiction, including provision
for an environmental impact statement, monitoring, NPDES permits, and
emergency suspension of activities.

Pollution by Dumping (Article 210). Article 210 requires that national
laws regarding pollution from dumping be no less effective than the
global rules and standards. The global regime addressing pollution of
the marine environment by dumping is long-established. The Convention
on the Prevention of Marine Pollution by Dumping of Wastes and Other
Matter (the London Convention), 26 UST 2403, TIAS No. 8165, 1046 UNTS
120, governs the ocean dumping of all wastes and other matter.

Both the SPREP Convention (article 10) and the Cartagena Convention
(article 6) contain general provisions addressing ocean dumping on a
regional basis. In addition, a Protocol to the SPREP Convention
contains provisions that parallel those of the London Convention as it
existed in 1986.

Domestically, dumping is controlled by the Marine Protection, Research,
and Sanctuaries Act (Ocean Dumping Act), 33 U.S.C. $$ 1401-1445.

Pollution From Vessels (Article 211). The Convention's provisions
relating to pollution from vessels are developed in considerable detail.
They are a significant part of the overall balance between coastal and
maritime interests the Convention is designed to maintain over time.

Paragraph 1 requires States to establish international rules and
standards to prevent, reduce and control vessel source pollution and the
adoption of routeing systems to minimize the threat of accidents which
might cause pollution of the marine environment. Such rules and
standards are to be developed through the competent international
organization, which is recognized to be the IMO. The IMO has developed
several conventions that, directly or indirectly, address vessel source
pollution. One of the most important of these is the MARPOL Convention,
which contains general provisions on pollution from vessels,
supplemented by five Annexes pertaining to vessel discharges of oil
(Annex I), noxious liquid substances in bulk (Annex II), harmful
substances carried by sea in packaged forms, or in freight containers,
portable tankers or road and rail tank wagons (Annex III), sewage (Annex
IV), and garbage (Annex V). Other IMO conventions include SOLAS; the
1978 International Convention on Standards of Training, Certification
and Watchkeeping, 96th Cong., 1st Sess. Sen. Ex. EE (STCW); and the
International Convention on Oil Pollution Preparedness, Response, and
Cooperation, Sen. Treaty Doc. 102-11. At present, the United States is
party to all of the foregoing except MARPOL Annex IV.

Regionally, both the SPREP Convention (article 6) and the Cartagena
Convention (article 5) contain broad obligations concerning pollution
from vessels.

Paragraph 2 obligates States to adopt measures relating to vessels
flying their flag or of their registry. Such laws and regulations must
at least have the same effect as that of generally accepted
international rules and standards established through the competent
international organization or general diplomatic conference (e.g.,
MARPOL).

Paragraph 3 recognizes the authority of port States to establish their
own requirements relating to vessel source pollution as a condition of
entry of foreign vessels into their ports or internal waters or for a
call at their offshore terminals. Although port state authority has
long been exercised by many countries as a means of enforcing safety and
environmental measures, including the United States pursuant to the
Ports and Waterways Safety Act, 33 U.S.C. $$ 1223 & 1228, its prominent
recognition in the Convention and the provisions for cooperation among
port States are important steps forward in marine environmental
protection.

Paragraph 4 recognizes the authority of coastal States, in the exercise
of their sovereignty within their territorial sea, to establish
requirements relating to pollution from foreign vessels in their
territorial sea, including vessels exercising the right of innocent
passage. This authority is balanced by the proviso in paragraph 4 that
such laws and regulations shall, in accordance with Part II, section 3,
not hamper innocent passage of foreign vessels. However, passage is not
innocent if the vessel engages in "any act of wilful and serious
pollution contrary to this Convention" (article 19(2)(h)).

Paragraph 5 recognizes the authority of coastal States, for the purpose
of enforcement as provided for in section 6, to establish requirements
relating to pollution from foreign vessels in their EEZs. Unlike
requirements in the territorial sea, coastal State requirements
regarding pollution from foreign ships in the EEZ must conform to and
give effect to generally accepted international rules and standards
established through the competent international organization (i.e., the
IMO) or a general diplomatic conference.

Paragraph 6 sets forth circumstances under which coastal States may
establish special anti-pollution measures for foreign ships in
particular areas of their respective EEZs. Such measures, among other
things, require IMO approval. This paragraph strikes an important
balance between the need for universal respect for necessary
supplemental anti-pollution measures in particular coastal areas and the
need to protect freedom of navigation from unilateral coastal State
restrictions.

Domestically, vessel source pollution is governed primarily by the Act
to Prevent Pollution from Ships, 33 U.S.C. $$ 1901-1912, the Clean Water
Act, 33 U.S.C. $$ 1251- 1387, the Ports and Waterways Safety Act, 33
U.S.C. $ 1221 et seq., the Marine Protection, Research and Sanctuaries
Act (Ocean Dumping Act), 33 U.S.C. $ 1401 et seq., the Oil Pollution Act
of 1990, 33 U.S.C. $ 2761 et seq., the Refuse Act, 33 U.S.C. $ 407 et
seq., and the Comprehensive Environmental Response Compensation an