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 and
Liability Act, 42 U.S.C. $ 9601 et seq.

Pollution From or Through the Atmosphere (Article 212). There is at
present no global agreement directly governing marine pollution from or
through the atmosphere. The parties to MARPOL are currently negotiating
a possible new Annex VI that would address air pollution from ships.
Article 9 of the SPREP and Cartagena Conventions have broad obligations
relating to pollution to those regions from discharges into the
atmosphere. Domestically, such provisions are addressed through the
Clean Air Act, 42 U.S.C. $ 7401 et seq.

Enforcement (Articles 213-222)

Section 6 sets forth the rights and obligations of States to ensure
compliance with and to enforce measures adopted in accordance with
articles 207 through 212. In this respect, the Convention goes beyond
and strengthens existing international agreements, many of which do not
have express enforcement clauses.

Pursuant to article 229, nothing in the Convention affects the
institution of civil (as opposed to punitive) proceedings in respect of
any claim for loss or damage resulting from pollution of the marine
environment.

There are express enforcement provisions relating to pollution from
land-based sources (article 213), sea-bed activities (article 214),
activities in the Area (article 215), dumping (article 216), vessels
(articles 217-220), maritime casualties (article 221), and pollution
from or through the atmosphere (article 222). Although all of these
articles contain specific obligations, the provisions regarding the
enforcement for vessel source pollution are set out in detail.

Article 217 places a duty on flag States to ensure that vessels flying
their flag or of their registry comply with the measures adopted in
accordance with the Convention. Among other things, flag States must
ensure that vessels flying their flag or of their registry are in
compliance with international rules and standards, carry requisite
certificates, and are periodically inspected. If a vessel commits a
violation of applicable rules and standards, the flag State must provide
for immediate investigation and, where appropriate, institute
proceedings irrespective of where the violation or pollution has
occurred. Penalties must be adequate in severity to discourage
violations wherever they occur. Article 217 is consistent with article
4 of MARPOL, chapter I of the Annex to SOLAS, and article VI of STCW.

Section 6 also sets forth the rights of port States and coastal States
to take enforcement action against foreign flag vessels that do not
comply with measures adopted in accordance with the Convention.

Article 218 recognizes the authority of the port State to take
enforcement action in respect of a discharge from a vessel on the high
seas in violation of applicable international rules and standards.
(Discharges in the territorial sea or EEZ of the port State are
addressed in article 220(1).) The port State may also take enforcement
action in respect of a discharge violation in the internal waters,
territorial sea or EEZ of another State if requested by that State, the
flag State, or a State damaged or threatened by the discharge, or if the
violation has caused or is likely to cause pollution to the internal
waters, territorial sea, or EEZ of the port State.

Article 219 recognizes the authority of the port State to prevent a
vessel from sailing when it ascertains that the vessel is in violation
of applicable international rules and standards relating to
seaworthiness and thereby threatens damage to the marine environment.

Article 220 provides an overall enforcement scheme for vessel source
pollution based on various factors, including the location of the
vessel, the location of the act of pollution, and the severity of the
pollution. Article 220 affects only vessel discharges and does not
apply to enforcement with respect to other types of pollution, such as
by dumping.

Article 220 recognizes the authority of the coastal State to take
enforcement action with respect to a foreign flag vessel in its EEZ or
territorial sea, whether or not that vessel enters a port of the coastal
State. However, such enforcement authority is not unfettered. Article
220 balances the interests of coastal States in taking enforcement
action with rights and freedoms of navigation of flag States. It
recognizes express safeguards applicable to enforcement action against
foreign flag vessels (see section 7).

Article 220(1) recognizes the authority of a coastal State to take
enforcement action against a vessel voluntarily within its port or off-
shore terminal when a violation involving that vessel has occurred
within the territorial sea or the EEZ of the coastal State.

Under Article 220(2), where there are clear grounds for believing that a
vessel navigating in the territorial sea of a State has, during its
passage therein, violated laws and regulations of the coastal State
adopted in accordance with the Convention, the coastal State may
undertake physical inspection of the vessel relating to the violation
and may, where the evidence so warrants, institute proceedings,
including the detention of the vessel.

Under Article 220(3), where there are clear grounds for believing that a
vessel navigating in the EEZ or the territorial sea of a State has, in
the EEZ, committed a violation of applicable international rules and
standards for the prevention, reduction and control of pollution from
vessels, or laws and regulations of the coastal State conforming and
giving effect to such rules and standards, the coastal State may require
the vessel to provide information regarding its identity and port of
registry, its last and its next port of call and other relevant
information required to establish whether a violation has occurred.

Article 220(4) requires flag States to adopt laws and regulations and
take other measures so that their vessels comply with requests for
information by coastal States under paragraph 3.

Where a violation referred to in article 220(3) results in a substantial
discharge causing or threatening significant pollution of the marine
environment, article 220(5) authorizes the coastal State to undertake
physical inspection of the vessel for matters relating to the violation
if the vessel has refused to give information or if the information
supplied by the vessel is manifestly at variance with the evident
factual situation and if the circumstances of the case justify such
inspection.

Where a violation referred to in article 220(3) results in a discharge
causing major damage or threat of major damage to the coastline or
related interests of the coastal State, article 220(6) authorizes the
coastal State, under certain circumstances, to institute proceedings,
including detention of the vessel.

Pursuant to article 233, Sections 5 and 6 do not affect the legal regime
of straits. Article 233 applies to enforcement of laws and regulations
applicable to transit passage under article 42 and, by extension, to
archipelagic sea lanes passage under article 54.

Safeguards (Articles 223-233)

Section 7 establishes several safeguards concerning enforcement
authority. These include an obligation to facilitate proceedings
involving foreign witnesses and the admission of evidence submitted by
another State (article 223), a specification as to what officials and
vessels may exercise enforcement authority against foreign vessels
(article 224), a duty to avoid adverse consequences in the exercise of
enforcement powers (article 225), safeguards concerning delay and
physical inspection of foreign vessels (article 226), and a duty of non-
discrimination against foreign vessels (article 227).

Under article 226, States may not delay a foreign vessel "longer than is
essential" for the purposes of the investigations provided for in
articles 216, 218, and 220. Moreover, any physical inspection of a
foreign vessel is limited to an examination of such certificates,
records or other documents as the vessel is required to carry. Any
further physical examination may be undertaken only after such an
examination and only when: (i) there are clear grounds for believing
that the condition of the vessel or its equipment does not correspond
substantially with the particulars of those documents; (ii) the contents
of such documents are not sufficient to confirm or verify a suspected
violation; or (iii) the vessel is not carrying valid certificates and
records. While the Convention imposes different procedural restrictions
on physical inspections than U.S. law, it is anticipated that one or
more of the exceptions for allowing further physical examination will be
met in cases where there are "clear grounds" to believe a violation has
occurred.

Article 228, which applies only to vessel source pollution, sets forth
circumstances under which proceedings shall be suspended and
restrictions on institution of proceedings. For example, consistent
with the notion in Section 6 that the flag State is primarily
responsible for ensuring compliance with the Convention of vessels
flying its flag or of its registry, article 228(1) requires the
suspension of enforcement proceedings against foreign vessels if the
flag State institutes its own proceedings to impose penalties within six
months of the date on which proceedings were first initiated.
Suspension would not be required if the flag State fails to initiate
proceedings within six months, if the proceedings relate to a case of
major damage to the coastal State, or the flag State in question has
repeatedly disregarded its obligation to enforce effectively the
applicable international rules and standards in respect of violations
committed by its vessels. The suspended proceeding will be terminated
when the flag State has brought its proceedings to a conclusion.
Article 228(2) imposes a limitation of three years in which to commence
proceedings against foreign vessels.

Article 230, which applies only to vessel source pollution, provides
that only monetary penalties may be imposed with respect to violations
committed by foreign vessels beyond the territorial sea. With respect
to violations committed by foreign vessels in the territorial sea, non-
monetary penalties (i.e., incarceration) may be applied as well, but
only if the vessel has committed a willful and serious act of pollution.
The requirement that the act be "willful" would not constrain penalties
for gross negligence. Article 230 applies only to natural persons
aboard the vessel at the time of the discharge.

Article 231 provides for notification to the flag State and other States
concerned of any measure taken against the foreign vessel. Under
article 232, the enforcing State will be liable for damage or loss
caused by measures taken that are unlawful or exceed those reasonably
required in light of available information.

The extent to which, if at all, Sections 6 and 7 (on enforcement and
safeguards, respectively) will enhance and/or constrain U.S. enforcement
authorities is the subject of ongoing analysis.

Ice-Covered Areas (Article 234)

Section 8 authorizes coastal States to adopt and enforce laws and
regulations relating to marine pollution from vessels in ice-covered
areas within the limits of the EEZ, where particularly severe climatic
conditions and the presence of ice covering such areas for most of the
year create obstructions or exceptional hazards to navigation, and
pollution of the marine environment could cause major harm to, or
irreversible disturbance of, the ecological balance.

Pursuant to this article, a State may enact and enforce non-
discriminatory laws and regulations to protect such ice-covered areas
that are within 200 miles of its baselines established in accordance
with the Convention. Such laws and regulations must have due regard to
navigation and the protection and preservation of the marine
environment, based on the best available scientific evidence, and must
be otherwise consistent with other relevant provisions of the Convention
and international law, including the exemption for vessels entitled to
sovereign immunity under article 236.

The purpose of article 234, which was negotiated directly among the key
states concerned (Canada, the United States and the Soviet Union), is to
provide the basis for implementing the provisions applicable to
commercial and private vessels found in the 1970 Canadian Arctic Waters
Pollution Prevention Act to the extent consistent with that article and
other relevant provisions of the Convention, while protecting
fundamental U.S. security interests in the exercise of navigational
rights and freedom throughout the Arctic.

Responsibility and Liability (Article 235)

Section 9 provides that States are responsible for the fulfilment of
their international obligations concerning the protection and
preservation of the marine environment and that they shall be liable in
accordance with international law. It further provides that States
shall ensure recourse in their legal systems for relief from damage
caused by pollution of the marine environment. Finally, it obligates
States to cooperate in the implementation of existing international law
and the further development of international law relating to
responsibility and liability.

Sovereign Immunity (Article 236)

Section 10 provides that the provisions of the Convention regarding the
protection and preservation of the marine environment do not apply to
any warship, naval auxiliary, or other vessels and aircraft owned or
operated by a State and used, for the time being, only on government
non-commercial service. However, the second sentence of article 236
imposes on flag States the duty to ensure, by adopting appropriate
measures not impairing operations or operational capabilities of such
vessels or aircraft owned and operated by it, that such vessels and
aircraft act in a manner consistent, so far as is reasonable and
practicable, with the Convention.

This article acknowledges that military vessels and aircraft are unique
platforms not always adaptable to conventional environmental
technologies and equipment because of weight and space limitations,
harsh operating conditions, the requirements of long-term
sustainability, or other security considerations. In addition, security
needs may limit compliance with disclosure requirements.

Obligations Under Other Conventions on the Protection And Preservation
of the Marine Environment (Article 237)

Section 11 (article 237(1)) provides that the provisions in Part XII are
without prejudice to the specific obligations assumed by States under
agreements previously concluded which relate to the protection and
preservation of the marine environment and to agreement which may be
concluded in furtherance of the general principles set forth in the
Convention. Article 237(2) provides that specific obligations assumed
by States under other agreements should be carried out in a manner
consistent with the general principles and objectives of this
Convention. The United States does not anticipate any change in its
implementation of other agreements, since it currently implements such
agreements consistent with the principles and objectives of the
Convention.

ITEM 7:

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

Approximately 90 percent of living marine resources are harvested within
200 miles of the coast. By authorizing the establishment of EEZs, and
by providing for the sovereign rights and management authority of
coastal States over living resources within their EEZs, the Convention
has brought most living marine resources under the jurisdiction of
coastal States.

The Convention recognizes the need for consistent management of
ecosystems and fish stocks throughout their migratory range, and sound
management on the basis of biological characteristics. It imposes on
the coastal State a duty to conserve the living marine resources of its
EEZ.

While the Convention preserves the freedom to fish on the high seas
beyond the EEZ, it makes that freedom subject to certain obligations,
particularly the duty to cooperate in the conservation and management of
high seas living resources. Failure to respect these obligations beyond
the EEZ is subject to compulsory arbitration or adjudication. Tribunals
are empowered to prescribe provisional measures to preserve the
respective rights of the parties to the dispute or to prevent serious
harm to the marine environment, including its living resources, pending
the final decision.

The Convention's provisions relating to the conservation and management
of living marine resources are consistent with U.S. law, policy and
practice, and have provided the foundation for the international
agreements governing this subject. These provisions are more critical
today to U.S. living marine resource interests than they were in 1982
because of the dramatic overfishing that has occurred world-wide in the
past decade.

Territorial Sea and EEZ

Basic Rights and Obligations. The Convention gives the coastal State
broad authority to conserve and manage living resources within its
territorial sea and EEZ. Article 2 of the Convention provides that the
sovereignty of the coastal State extends throughout the territorial sea.
As part of the exercise of such sovereignty, the coastal State has the
exclusive right to conserve and manage resources, including living
resources, within the territorial sea, which may extend up to 12 miles
from coastal baselines.

The Convention also provides that the coastal State has sovereign rights
for the purpose of exploring and exploiting, conserving and managing
living resources within its EEZ, including the right to utilize fully
the total allowable catch of all such resources (articles 56, 61, 62).
With these rights come general responsibilities for the coastal State,
including the duty:

-- To determine the allowable catch of living resources in its EEZ
(article 61(1));

-- To ensure that such resources are not endangered by over-
exploitation (article 61(2));

-- To take into account effects of its management measures on non-
target species with a view to maintaining or restoring such species
above levels at which their reproduction may become seriously threatened
(article 61(3));

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

-- To determine its capacity to harvest such resources and to give
other States access to any surplus under reasonable conditions (article
62(2)).

The coastal State has significant flexibility in defining optimum
utilization and in fixing allowable catch, in determining its harvesting
capacity, and therefore in determining what, if any, surplus may exist.
The coastal State must, taking into account the best scientific evidence
available to it, ensure that over-exploitation of stocks within its EEZ
does not jeopardize the maintenance of the stocks overall and must
maintain stocks of harvested species at levels which can produce maximum
sustainable yields, as qualified by economic, environmental and other
factors.

Similarly, the Convention gives coastal States wide discretion in
choosing which other States will be allocated a share of any surplus.
In making this choice, the coastal State must take into account "all
relevant factors." Foreign fishing, to the extent authorized, may be
conditioned upon observance of a wide variety of coastal State
regulations, including area, season, vessel and gear restrictions,
research, reporting and observer requirements, and compensation in the
form of fees, financing, equipment, training and technology transfer.

U.S. law, primarily the Magnuson Fishery Conservation and Management
Act, as amended (16 U.S.C. $ 1801 et seq.) (MFCMA), fully enables the
United States to exercise its rights and implement its obligations with
respect to the provisions of the Convention discussed above.

The MFCMA provides the United States with exclusive fishery management
authority over all fishery resources up to the 200-mile limit of the
U.S. EEZ (16 U.S.C. $ 1811(a)). The MFCMA requires conservation of such
resources in a manner consistent with article 61 (16 U.S.C. $ 1851) and
provides the legislative basis on which the United States determines the
allowable catch of the living resources in its EEZ, as required by
article 61 (16 U.S.C. $ 1852). The process for making that
determination fully comports with the principles of conservation and
optimum utilization contained in articles 61 and 62. Fishery management
plans developed pursuant to the MFCMA must prohibit overfishing and must
attempt to achieve "optimum yield" (16 U.S.C. $ 1851(a)(l)).

While the MFCMA does not separately address the issue of associated or
dependent species, it gives sufficiently broad authority to regional
fishery management councils to permit them to protect non-target species
to the extent required by article 61(3), and arguably requires the
councils to do so by providing that, to the extent practicable,
interrelated species shall be managed as a "unit" (16 U.S.C. $
1851(a)(3)). The Endangered Species Act (16 U.S.C. $ 1651 et seq.)
would independently protect those non-target species that were
endangered or threatened throughout a significant portion of their
range.

The MFCMA authorizes the allocation of any surplus to foreign States and
establishes terms and conditions for any foreign fishing in the U.S.
EEZ, thus providing the basis on which to fulfill any such obligations
under article 62 (16 U.S.C. $ 1821 generally and $ 1824(b)(7)). In
fact, because the harvesting capacity of the U.S. domestic fishing
industry has in recent years been estimated to equal the total allowable
catch of all relevant species subject to U.S. management authority, the
United States has had no surplus to allocate to potentially interested
States.

To have an opportunity to receive an allocation, a foreign nation must
have in force a "governing international fishery agreement" (GIFA) with
the United States (16 U.S.C. $ 1821). This requirement is fully
consistent with article 62. Presently, the United States has GIFAs in
force with 5 nations, although, as noted above, there has been no
surplus to allocate under such GIFAs in recent years.

In the event that a surplus of one or more species becomes available in
the future, the MFCMA lists a variety of factors to be considered in
determining the allocation of such surplus among foreign States (16
U.S.C. $ 1821(e)). The Convention also lists many of these same
factors, either as relevant considerations or as permissible terms and
conditions for foreign fishing (article 62(3) & (4)). The Convention's
list is not exhaustive and does not restrict utilizing any of the
factors set forth in the MFCMA.

Although articles 69 and 70 require coastal States to give some special
consideration to land-locked and geographically disadvantaged States in
the same subregion or region in allocating any surplus, the Convention
does not provide clear standards by which to determine whether any such
States exist in the U.S. subregion or region. In any event, the
language of these articles and that of article 62 gives the coastal
State wide discretion in making such allocations and cannot be read to
compel the making of an allocation to any particular State.

The MFCMA imposes other conditions on foreign fishing, including the
payment of permit fees and compliance with fishery regulations and
enforcement provisions (16 U.S.C. $ 1821). The Convention permits the
coastal State to impose all these conditions and requires nationals of
other States fishing in an EEZ to observe regulations of the coastal
State (article 62(4)).

In sum, the MFCMA provides a fully sufficient basis on which the United
States could exercise its rights and implement its obligations with
respect to the conservation and management of living resources within
its territorial sea and EEZ.

Particular Categories of Species. Articles 63 through 68 of the
Convention set forth additional provisions relating to particular
categories of living resources that do not remain solely within areas
under the fishery management authority of a single coastal State. U.S.
law, and the international agreements to which the United States is
party, as well as the 1992 United Nations moratorium on high seas
driftnet fishing, are fully consistent with these provisions.

Article 63(1) requires coastal States within whose EEZs the same stock
or stocks of associated species occur to seek to agree on the measures
necessary to coordinate and ensure the conservation and development of
such stocks. The MFCMA calls for the Secretary of State to negotiate
such agreements (16 U.S.C. $ 1822). One example of such an agreement is
the U.S.- Canada Convention for the Preservation of the Halibut Fishery
of the Northern Pacific Ocean and Bering Sea, March 2, 1953, 5 UST 5,
TIAS No. 2900, 222 UNTS 77.

Articles 63(2) and 64, respectively, address "straddling" stocks and
highly migratory species. These provisions are reviewed below in
detail.

Article 65 of the Convention recognizes the right of a coastal State or
the competence of an international organization, as appropriate, to
prohibit, limit or regulate exploitation of marine mammals more strictly
than is required in the case of other living resources. Article 65 also
requires States to cooperate with a view to conserving marine mammals
and, in the case of cetaceans, to work in particular through appropriate
international organizations. Article 120 makes article 65 applicable to
the high seas as well.

These provisions lent direct support to the efforts of the United States
and other conservation-minded States within the International Whaling
Commission to establish a moratorium on commercial whaling. Prior to
the adoption of these provisions in the text, whaling States argued that
the Convention should require that protective measures for marine
mammals may do no more than ensure the maintenance of maximum
sustainable yield. These arguments were definitively rejected in the
Third United Nations Conference on the Law of the Sea, paving the way
for the commercial whaling moratorium and other measures that strictly
protect marine mammals, including the Southern Ocean Whale Sanctuary
adopted in 1994 by the International Whaling Commission.

U.S. law, including the Marine Mammal Protection Act of 1972, as
amended, and the Whaling Convention Act of 1949, as amended (16 U.S.C. $
916 et seq.), strictly limits the exploitation of marine mammals within
the U.S. territorial sea and EEZ and by U.S. vessels and persons subject
to U.S. jurisdiction elsewhere.

Article 66 sets forth provisions relating to anadromous stocks (fish
that migrate from salt water to spawn in fresh water) such as salmon,
which recognize their special characteristics and reflect a major U.S.
policy accomplishment. Article 66(1) provides that "States in whose
rivers anadromous stocks originate shall have the primary interest in
and responsibility for such stocks."

Article 66(2) authorizes the State of origin, after consulting with
other relevant States, to set total allowable catches for anadromous
stocks originating in its rivers.

Article 66(3)(a) prohibits fishing for anadromous stocks on the high
seas beyond the EEZ except when such a prohibition would "result in
economic dislocation" for a State other than a State of origin. On its
face, this provision makes unlawful any new high seas salmon fisheries
or the expansion of current ones. In fact, at the time the Convention
was concluded, only Japan maintained a high seas salmon fishery. Since
the entry into force of the 1992 Convention for the Conservation of
Anadromous Stocks in the North Pacific Ocean, on February 16, 1993, that
fishery has been prohibited as well. The 1982 Convention for the
Conservation of Salmon in the North Atlantic Ocean, TIAS No. 10789, also
prohibits high seas fishing for salmon in that region. Thus, the
combined effect of the LOS Convention and these two treaties precludes
any fishery for U.S.-origin salmon, or any other salmon, on the high
seas, a major benefit to the United States.

U.S. law implementing the North Pacific and North Atlantic salmon
treaties prohibits persons or vessels subject to the jurisdiction of the
United States from fishing for salmon on the high seas of those regions
(16 U.S.C. $$ 3606, 5009).

Article 66 does not supersede the sovereign rights of the coastal State
over anadromous stocks exercised in the territorial sea and EEZ pursuant
to articles 2 and 56(1)(a), respectively, or those coastal State rights
recognized under articles 61 and 62.

Anadromous stocks that originate in one State and migrate through the
internal waters, territorial sea or EEZ of another State are subject to
interception by the latter. In such cases, article 66(4) of the
Convention requires the States concerned to cooperate in matters of
conservation and management. The 1985 Treaty Between the Government of
the United States and the Government of Canada Concerning Pacific
Salmon, TIAS No. 11091, currently the subject of additional
negotiations, established the Pacific Salmon Commission to effect such
cooperation on salmon in that region. It should be noted, however, that
the so-called equity principle of the Pacific Salmon Treaty does not
derive from article 66, but is specific to that Treaty.

Under article 67, catadromous stocks (fish that migrate from fresh water
to spawn in salt water) are the special responsibility of those States
where they spend the greater part of their life cycle, and may not be
harvested on the high seas beyond the EEZ. The United States exercises
exclusive fishery management authority over catadromous stocks within
the U.S. EEZ under the general provisions of the MFCMA discussed above.

Enforcement. The Convention authorizes the coastal State to take a
broad range of measures to enforce its fishery laws, including boardings
and inspections, requirements for observer coverage and vessel position
reports, and arrests and fines (articles 62(4) & 73). The Convention
requires that vessels arrested in the EEZ and their crews must be
promptly released upon posting of a bond or other security. This rule
is consistent with U.S. law. The rare foreign fisherman charged with a
criminal violation of fisheries law may post bail; the MFCMA also
provides for the release of a seized vessel upon the posting of a
satisfactory bond (16 U.S.C. $ 1860(d)).

Under the Convention, penalties for violations of fisheries laws in the
EEZ may not include imprisonment, unless the States concerned agree to
the contrary, or other form of corporal punishment (article 73). The
MFCMA provides for criminal fines of up to $200,000 for fishing
violations committed by foreign fishermen. The MFCMA also provides for
imprisonment for such acts as forcible assault, resisting or interfering
with arrest, and obstructing a vessel boarding by an enforcement officer
(16 U.S.C. $ 1859(b)). The Convention does not preclude imprisonment of
those who assault officers, resist arrest, or violate other non-fishery
laws.

The provisions of the Convention prohibiting imprisonment or corporal
punishment for fishing violations responded to the severe treatment
meted out to foreign fishermen in some places. Although the Convention
limits the ability of the United States to impose prison sentences on
foreign fishermen who violate U.S. fishery laws, the Convention promotes
a major U.S. objective in protecting U.S. fishermen seized by other
States from the imposition of prison sentences. On balance, these
provisions of the Convention serve U.S. interests overall, given that
many U.S. fishermen are actively engaged in fishing within foreign EEZs,
while no foreign fishing is authorized within the U.S. EEZ at present.

Continental Shelf

Under articles 68 and 77 of the Convention, sedentary species, such as
coral, are not subject to the Convention's provisions relating to the
EEZ, but are dealt with in the articles relating to the continental
shelf. Under article 77, the coastal State has sovereign rights for the
purpose of exploring and exploiting the sedentary species of the
continental shelf, unqualified by the duties specifically associated
with the conservation and management of living resources in the EEZ.
This result is consistent with article 2(4) of the Continental Shelf
Convention.

The definition of sedentary species remains the same as that in the
Continental Shelf Convention:

organisms which, at the harvestable stage, either are immobile on or
under the sea-bed or are unable to move except in constant physical
contact with the sea-bed or the subsoil.

Neither convention provides examples of sedentary species subject to
coastal State jurisdiction. However, the MFCMA specifies a number of
varieties of coral, crab, mollusks and sponges as included within the
sedentary species subject to U.S. continental shelf jurisdiction, and
permits identification of other species when published in the Federal
Register (16 U.S.C. $ 1802(4)).

High Seas

International law has long recognized the right of all States for their
nationals to engage in fishing on the high seas (High Seas Convention,
article 2(2)). The freedom of high seas fishing has never been an
unfettered right, however. The High Seas Convention, for example,
required this freedom to be exercised by all States with "reasonable
regard to the interests of other States in their exercise of the freedom
of the high seas."

By authorizing the establishment of EEZs out to 200 miles, the LOS
Convention has significantly reduced the areas of high seas in which
fishermen may exercise this freedom.

Moreover, while article 87(1)(e) of the Convention preserves the right
of all States for their nationals to engage in fishing on the high seas,
it makes this right subject to a number of important, though general,
conditions set forth in articles 116-120:

-- Other treaty obligations of the State concerned;
-- The rights and duties as well as the interests of coastal States
provided for, inter alia, in article 63(2) and articles 64-67; and
-- Basic obligations to cooperate in the conservation and management of
high seas living resources set forth in articles 117-119.

In furtherance of these provisions, the international community has
concluded numerous treaties that regulate or prohibit high seas
fisheries. Among these treaties are many to which the United States is
party, including, inter alia:

-- International Convention for the Conservation of Atlantic Tunas, May
14, 1966, 20 UST 2887, TIAS No. 6767, 673 UNTS 63;

-- Convention for the Establishment of an Inter-American Tropical Tuna
Commission, March 3, 1950, 1 UST 230, TIAS No. 2044, 80 UNTS 3;

-- Convention for the Conservation of Anadromous Stocks in the North
Pacific Ocean, February 11, 1992;

-- Convention for the Conservation of Salmon in the North Atlantic
Ocean, March 2, 1982, TIAS No. 10789;

-- Convention on the Conservation of Antarctic Marine Living Resources,
May 20, 1980, 33 UST 3476, TIAS No. 10240;

-- Treaty on Fisheries Between the Governments of Certain Pacific
Island States and the Government of the United States of America, April
2, 1987, TIAS No. 11100;

-- Convention for the Prohibition of Fishing with Long Driftnets in the
South Pacific, November 24, 1989; and

-- International Convention for the Regulation of Whaling, November 19,
1956, 10 UST 952, TIAS No. 4228, 338 UNTS 366.

The United States has also recently participated in the conclusion of
two other treaties relating to high seas fishing that are not yet in
force, namely, the Convention on the Conservation and Management of
Pollock Resources in the Central Bering Sea, Sen. Treaty Doc. 103-27,
and the Agreement to Promote Compliance with International Conservation
and Management Measures by Fishing Vessels on the High Seas, Sen. Treaty
Doc. 103-24.

The United States was also instrumental in promoting the adoption, by
consensus, of United Nations General Assembly Resolutions 44/225, 45/297
and 46/215, which have effectively created a moratorium on the use of
large-scale driftnets on the high seas. In pressing for the adoption of
these resolutions, the United States relied heavily on the fact that
large-scale driftnets in the North Pacific Ocean intercepted salmon of
U.S. origin in violation of article 66 of the Convention and
indiscriminately killed large numbers of other species, including marine
mammals and birds, in violation of the basic conservation and related
obligations contained in the Convention. In creating the moratorium,
the international community implemented obligations flowing from these
provisions of the Convention.

Existing U.S. law implements all pertinent U.S. obligations flowing from
the general provisions of articles 116-120 of the Convention and the
additional treaties to which the United States is party. The MFCMA also
calls upon the Secretary of State to negotiate any additional treaties
and other international agreements that may be necessary or appropriate
in the fulfillment of U.S. obligations under the Convention to cooperate
in the conservation and management of living resources of the high seas
(16 U.S.C. $ 1822).

"Straddling" Stocks and Highly Migratory Species

While virtually all members of the international community accept the
fishery provisions of the Convention as reflective of customary law,
differences remain over their interpretation and application,
particularly as they relate to so-called "straddling" stocks and highly
migratory species. This part of the Commentary will review these
provisions in detail, as well as on-going efforts to resolve the
differences that remain.

"Straddling" Stocks. Although the Convention does not use the term
"'straddling' stocks," that term has come to refer to those stocks
described in article 63(2), which provides that:

Where the same stock or stocks of associated species occur both within
the exclusive economic zone and in an area beyond and adjacent to the
zone, the coastal State and the States fishing for such stocks in the
adjacent area shall seek, either directly or through appropriate
subregional or regional organizations, to agree upon the measures
necessary for the conservation of these stocks in the adjacent area.

This provision reflects the need for international cooperation in the
conservation of stocks that "straddle" the line that separates the EEZ
from the high seas beyond. While the Convention recognizes the rights
and responsibilities of the coastal State with respect to stocks
occurring within its EEZ (article 56), overfishing for the same stock
(or stocks of associated species) in the adjacent high seas area can
radically undermine efforts by the coastal State to exercise those
rights and fulfill those responsibilities.

Article 63(2) obligates the coastal State and the States fishing for
such stocks in the adjacent area to "seek to agree" on necessary
conservation measures for these stocks in the adjacent area. Three
features of this provision are worth noting. First, the coastal State
has the right to participate in the negotiations contemplated by article
63(2) whether or not it maintains a fishery for the stocks in question
either within its EEZ or in the adjacent high seas area. Second, the
conservation measures to be negotiated are for application only in the
adjacent high seas area, not in the coastal State's EEZ, although, to be
effective, the measures applied in the two areas should be compatible.
Finally, article 63(2) leaves unresolved the question of what happens
when the States concerned have not been able to agree on necessary
measures. The on-going United Nations Conference on Straddling Fish
Stocks and Highly Migratory Fish Stocks, discussed below, is presently
grappling with this issue.

While disputes over straddling stocks in other parts of the world
remain, article 63(2) provided the basis on which the United States was
able to resolve a conflict over the primary straddling stock fishery of
concern to it, namely the fishery for the Aleutian Basin stock of
Alaskan pollock. This pollock stock is a valuable straddling stock that
occurs in the EEZs of both the United States and the Russian Federation,
as well as in the high seas area of the Bering Sea, commonly known as
the Donut Hole. Overfishing for pollock in the Donut Hole by other
States led to a collapse of the stock in the late 1980s. Relying on
article 63(2), the United States and the Russian Federation persuaded
the fishing States in question to conclude the Convention on the
Conservation and Management of Pollock Resources in the Central Bering
Sea, which, once it enters into force, will establish an effective
conservation and management regime for pollock in the Donut Hole,
consistent with U.S. interests in that stock as a coastal State.

Highly Migratory Species. Article 64 of the Convention provides
separate treatment for highly migratory species (HMS), which are those
listed in Annex I to the Convention. The list includes, inter alia,
tuna and billfish. With respect to HMS, article 64 provides that:

1. The coastal State and other States whose nationals fish in the
region for . . . highly migratory species . . . shall cooperate
directly or through appropriate international organizations with a view
to ensuring conservation and promoting the objective of optimum
utilization of such species throughout the region, both within and
beyond the exclusive economic zone. In regions for which no appropriate
international organization exists, the coastal State and other States
whose nationals harvest these species in the region shall cooperate to
establish such an organization and participate in its work.

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

At the time the Convention was concluded, the United States sharply
disagreed with most other States over the interpretation of this
article. The predominant view was that HMS are treated exactly the same
as all other living resources in the sense that they fall within
exclusive coastal State authority in the territorial sea and EEZ under
articles 2 and 56(l)(a), and are subject to articles 61 and 62. The
United States, however, contended that article 64, by calling for
international management of HMS throughout their migratory range,
derogated from coastal State claims of jurisdiction. According to the
U.S. interpretation, a coastal State would not be permitted, absent an
agreement, to prevent foreign vessels from fishing for HMS in its EEZ.

Effective January 1, 1992, however, the United States amended the MFCMA
to include HMS among all other species over which it asserts sovereign
rights and exclusive fishery management authority while such species
occur within the U.S. EEZ (16 U.S.C. $ 1812). That amendment also
recognized, at least implicitly, the right of other coastal States to
assert the same sovereign rights and authority over HMS within their
EEZs. With this amendment, a long-standing juridical dispute came to an
end.

The end of the juridical dispute has not rendered article 64
meaningless, however. While virtually all States now accept that
article 64 does not derogate from the rights of coastal States over
living resources within their EEZs, article 64 does require all relevant
States to cooperate in international management of HMS throughout their
range, both within and beyond the EEZ. Article 64 thus differs in this
critical respect from article 63(2), which obligates relevant States to
cooperate in the establishment of necessary conservation measures for
"straddling" stocks only in the high seas area adjacent to the EEZ.

State practice has generally followed this distinction between
straddling stocks and HMS. For example, such tuna treaties as the
International Convention for the Conservation of Atlantic Tunas and the
Convention for the Establishment of an Inter-American Tropical Tuna
Commission apply both within and beyond the EEZs in their respective
regions. Similarly, the International Convention for the Regulation of
Whaling applies on a global basis, both within and beyond EEZs. By
contrast, the Convention on the Conservation and Management of Pollock
Resources in the Central Bering Sea and the Convention on Future
Multilateral Cooperation in Northwest Atlantic Fisheries, both of which
regulate fisheries for "straddling" stocks, apply only in the high seas
areas adjacent to the relevant EEZs.

One justification for this distinction rests on the biological
differences between the two categories of stocks. Broadly speaking,
"straddling" stocks, such as cod in the Northwest Atlantic and pollock
in the Bering Sea, occur primarily in the EEZs of a very few coastal
States. Outside the EEZs, these stocks are fished in relatively
discrete areas of the adjacent high seas. Accordingly, it seems
reasonable for the coastal State "unilaterally" to determine
conservation and management measures applicable in its EEZ, while the
high seas fishing States and the coastal State(s) jointly develop such
measures applicable in the adjacent areas.

Most HMS, by contrast, migrate through thousands of miles of open ocean.
They are fished in the EEZs of large numbers of coastal States and in
many areas of the high seas. No single coastal State could adopt
effective conservation and management measures for such a stock as a
whole. As a result, international cooperation is necessary in the
development of such measures for these stocks throughout their range,
both within and beyond the EEZ.

The list of HMS contained in Annex I to the Convention may not, on the
basis of scientific evidence available today, reflect most accurately
those marine species that in fact migrate most widely. The MFCMA also
defines HMS for the purpose of that statute by listing some, but not
all, of the marine species included in Annex I (16 U.S.C. $ 1802(14)).
The absence of some Annex I species from the MFCMA definition would not
prevent the United States from fulfilling its obligations under article
64 to cooperate in developing international regimes for HMS regulation,
however. Indeed, the MFCMA calls upon the Secretary of State, in
consultation with the Secretary of Commerce, to negotiate agreements to
establish such regimes (16 U.S.C. $ 1822(e)).

Finally, although Annex I includes dolphins and cetaceans among the
listed HMS, this would not prejudice the provisions of articles 65 and
120, which preserve the right of coastal States and the competence of
international organizations, as appropriate, to prohibit, limit or
regulate the taking of marine mammals more strictly than otherwise
provided for in the Convention.

United Nations Conference on Straddling Fish Stocks and Highly Migratory
Fish Stocks. As noted above, articles 63(2) and 64 establish, for
"straddling" stocks and HMS, respectively, general obligations for
coastal States and other States whose nationals fish for these stocks to
cooperate in conservation and management. Within the framework of these
general obligations, the international community has concluded numerous
treaties and other agreements to regulate fisheries for "straddling"
stocks and HMS.

The existence of this framework and of these treaties and agreements has
not resolved all differences regarding the conservation and management
of these species, however. With a view to resolving these differences,
Agenda 21, adopted by the 1992 United Nations Conference on Environment
and Development, called upon the United Nations to convene a conference
specifically devoted to this subject. As the resulting United Nations
Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks
has not yet completed its work, it would be premature to speculate on
its outcome, except to say that all participating States have agreed
that any such outcome must be consistent with the LOS Convention.

Dispute Settlement

The Convention's dispute settlement provisions, as they apply to
fisheries disputes, reinforce the scheme of the fishery provisions of
the Convention as a whole. A coastal State need not submit to binding
arbitration or adjudication any dispute relating to the exploration,
exploitation, conservation, or management of living resources in the
EEZ, including, for example, its discretionary powers for determining
the allowable catch. However, such disputes may, in limited
circumstances, be referred to compulsory but non-binding conciliation.

Fishing beyond the EEZ is subject to compulsory, binding arbitration or
adjudication. This will give the United States an additional means by
which to enforce compliance with the Convention's rules relating to the
conservation and management of living marine resources and measures
required by those rules, including, for example, the prohibition in
article 66 on high seas salmon fishing, the application of articles
63(2) and 116 in the Central Bering Sea in light of the new Pollock
Convention, and the application of articles 66, 116 and 192 in light of
the United Nations General Assembly Resolutions creating a moratorium on
large-scale high seas driftnet fishing.

Neither the Convention's dispute settlement provisions nor any of its
other provisions, however, limit the ability of the United States to use
other means, including trade measures, provided under U.S. law to
promote compliance with environmental and conservation norms and
objectives.

The dispute settlement provisions as they relate to living marine
resources are discussed more fully below in the section on dispute
settlement.

ITEM 8:

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

Part VI of the Convention, together with other related provisions on the
continental shelf, secures for the coastal State exclusive control over
the exploration and exploitation of the natural resources, including oil
and gas, of the sea-bed and its subsoil within 200 miles of the coastal
baselines and to the outer edge of the geological continental margin
where the margin extends beyond 200 miles.

United States interests are well served by the Convention's provision
for exclusive coastal State control over offshore mineral resources to
the outer edge of the continental margin. In addition, the Convention's
standards and procedures for delimiting the outer edge of the margin
will help avoid uncertainty and disagreement over the maximum extent of
coastal State continental shelf jurisdiction. The resulting clarity
advances both the resource management and commercial interests of the
United States, as well as its interests in stabilizing claims to
maritime jurisdiction by other States.

In order to provide necessary legal certainty with respect to coastal
State control over exploration and development activities on the
continental margin beyond 200 miles, the Convention sets forth detailed
criteria for determining the outer edge of the margin. In addition, it
provides for establishment of an expert body, the Commission on the
Limits of the Continental Shelf, to provide advice and recommendations
on the application of these criteria.

Only a limited number of coastal States, including the United States,
have significant areas of adjacent continental margin that extend beyond
200 miles from the coast. Many States preferred a universal limit at
200 miles for all. The Convention balances the extension of coastal
State control over the natural resources of the continental margin
seaward of 200 miles with a modest obligation to share revenues from
successful minerals development seaward of 200 miles. The potential
economic benefits of these resources to the coastal State greatly exceed
any limited revenue sharing that may occur in the future.

The Concept of the Continental Shelf

From a geological perspective, the continental shelf is only one part of
the submerged prolongation of land territory offshore. It is the inner-
most of three geomorphological areas--the continental slope and the
continental rise are the other two--defined by changes in the angle at
which the sea-bed drops off toward the deep ocean floor. The shelf,
slope and rise, taken together, are geologically known as the
continental margin (see Figure 2). Worldwide, there is wide variation
in the breadths of these areas.

National claims to the continental shelf in modern times date from
President Truman's 1945 Proclamation on the Continental Shelf, by which
the United States asserted exclusive sovereign rights over the resources
of the continental shelf off its coasts. The Truman Proclamation
specifically stated that waters above the continental shelf were to
remain high seas and that freedom of navigation and overflight were not
to be affected (Presidential Proclamation No. 2667, Sept. 28, 1945, 3
CFR 67 (1943-48 Comp.)).

Differing interpretations and application of concepts underlying the
Truman Proclamation led to international efforts to develop a more
precise definition of the continental shelf. The first result of these
efforts was the Continental Shelf Convention that emerged from the First
United Nations Conference on the Law of the Sea in 1958. It provides
that the continental shelf refers to: the sea-bed and subsoil of the
submarine areas adjacent to the coast but outside the area of the
territorial sea, to a depth of 200 meters or, beyond that limit, to
where the depth of the superjacent waters admits of the exploitation of
the natural resources of the said areas.

The "exploitability criterion" of the Continental Shelf Convention,
however, itself created considerable uncertainty as to how far seaward a
country was entitled to exclusive rights over the resources of the
shelf.

The 1982 Convention discards this definition of the continental shelf in
favor of expanded objective limits and a method for establishing their
permanent location. This change was designed to accommodate coastal
State interests in broad control of resources and in supplying the
certainty and stability of geographic limits necessary to promote
investment and avoid disputes.

Definition of the Continental Shelf

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

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 nautical 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.

This definition allows any coastal State, regardless of the sea floor
features off its shores, to claim a 200-mile continental shelf. This is
consistent with the provisions of articles 56 and 57, which include
among the rights of a coastal State within its EEZ sovereign rights for
exploring and exploiting non-living resources of the sea-bed and its
subsoil.

The effect is to give coastal States whose physical continental margins
extend less than 200 miles from the coast sovereign rights over the
natural resources of the sea-bed and subsoil up to the 200-mile limit.
This is of particular importance in those parts of the United States
with a narrow continental margin, such as areas off the Pacific coast,
Hawaii, the Commonwealths of Puerto Rico and of the Northern Mariana
Islands, and most other islands comprising U.S. territories and
possessions.

Rights and Duties

The coastal State's rights under Part VI over the natural resources of
the continental shelf exist independent of any action by the coastal
State, and apply whether or not the coastal State has declared an EEZ.
Article 77 reiterates that the coastal State has sovereign rights over
the continental shelf for the purpose of exploring it and exploiting its
natural resources. The sovereign rights of the coastal State are
balanced with provisions protecting the freedom of navigation and the
other rights and freedoms of other States from infringement or
unjustifiable interference by the coastal State. Under article 78,
rights of the coastal State over the continental shelf do not affect the
legal status of the superjacent waters or of the airspace above those
waters.

The right of all States to lay submarine cables and pipelines on the
continental shelf is specifically protected by article 79, which is
discussed above in the section on the high seas.

Several articles enumerate specific rights of the coastal State
regarding activities on the continental shelf. Those relating to
artificial islands, installations and structures (article 80) are the
same as the rights in article 60 already discussed in connection with
the EEZ. Drilling for all purposes (article 81), and tunnelling
(article 85) are under coastal State control. The provisions of article
83 on delimitation are discussed below in the section of this Commentary
on maritime boundary delimitation.

Limits of the Continental Shelf Beyond 200 Miles (Article 76)

Definition. Paragraphs 3-7 of article 76 provide a detailed formula for
determining the extent of the continental shelf of a coastal State,
based on the definition in paragraph 1, where its continental margin
extends beyond 200 miles from the coast. Although this formula uses
certain geological concepts as points of departure, its object is legal
not scientific. It is designed to achieve reasonable certainty
consistent with relevant interests and its effect is to place virtually
all sea-bed hydrocarbon resources under coastal State jurisdiction.

The formula provides two alternative methods for determining the outer
edge of the continental margin (paragraph 4). The first is based on the
thickness of sedimentary rock (rock presumed to be of continental
origin). The limits of the margin are to be fixed by points at which
the thickness of sedimentary rock "is at least 1 percent of the shortest
distance from such point to the foot of the continental slope." (Thus,
if at a given point beyond 200 miles from the baseline, the sediment
thickness is 3 kilometers, then that point could be as much as 300
kilometers seaward of the foot of the continental slope.)

The second alternative is to fix the outer limits of the margin by
points that are not more than 60 miles from the foot of the continental
slope.

These alternative methods are subject to specific qualifications to
ensure that their application does not produce unintended results.

First, the continental margin does not include the deep ocean floor with
its ocean ridges (paragraph 3).

Second, the outer limit of the continental margin may not extend beyond
350 miles from the coast or 100 miles from the 2,500 meter isobath,
whichever is further seaward (paragraph 5). This provision is neither
an extension of the 200-mile limit in paragraph 1 nor an alternative
definition of the continental margin and its outer edge contained in
paragraph 4. It applies only to areas where the outer edge of the
continental margin, determined in accordance with either of the methods
specified in paragraph 4, might otherwise be located seaward of both of
the limits contained in paragraph 5.

Third, notwithstanding the existence of alternative maximum limits in
paragraph 5, the outer limit of the continental shelf shall not exceed
350 miles from the coast on submarine ridges, provided that this
limitation on the use of either alternative limit set forth in paragraph
5 does not apply "to submarine elevations that are natural components of
the continental margin, such as its plateaux, rises, caps, banks and
spurs" (paragraph 6).

The United States understands that features such as the Chukchi plateau
and its component elevations, situated to the north of Alaska, are
covered by this exemption, and thus not subject to the 350-mile
limitation set forth in paragraph 6. Because of the potential for
significant oil and gas reserves in the Chukchi plateau, it is important
to recall the U.S. statement made to this effect on April 3, 1980 during
a Plenary session of the Third United Nations Conference on the Law of
the Sea, which has never given rise to any contrary interpretation. In
the statement, the United States representative expressed support for
the provision now set forth in article 76(6) on the understanding that
it is recognized that features such as the Chukchi plateau situated to
the north of Alaska and its component elevations cannot be considered a
ridge and are covered by the last sentence of paragraph 6.

For the United States, the continental shelf extends beyond 200 miles in
a variety of areas, including notably the Atlantic coast, the Gulf of
Mexico, the Bering Sea and the Arctic Ocean. Other States with broad
margins include Argentina, Australia, Brazil, Canada, Iceland, India,
Ireland, Madagascar, Mexico, New Zealand, Norway, the Russian Federation
and the United Kingdom.

Delineation. Article 76, paragraphs 7-10, deal with the delineation of
the outer limits of the continental shelf. For reasons of simplicity
and certainty, limits beyond 200 miles are to be delineated by straight
lines no longer than 60 miles connecting fixed points defined by
coordinates of latitude and longitude (paragraph 7). Coastal States
with continental shelves extending beyond 200 miles are to provide
information on those limits to the Commission on the Limits of the
Continental Shelf, an expert body established by Annex II to the
Convention. The Commission is to make recommendations to coastal States
on these limits. The coastal State is not bound to accept these
recommendations, but if it does, the limits of the continental shelf
established by a coastal State on the basis of these recommendations are
final and binding on all States Parties to the Convention and on the
International Sea-bed Authority.

Article 76(9) requires the coastal State to deposit with the Secretary-
General of the United Nations the relevant charts and data permanently
describing the outer limits of its continental shelf both at and beyond
200 miles. This promotes stability and predictability for investors and
minimizes disputes.

Commission on the Limits Of the Continental Shelf (Annex II)

The Commission on the Limits of the Continental Shelf is to consist of
21 members, who are to be experts in geology, geophysics or hydrography,
but may only be nationals of States Parties. A coastal State that
intends to establish its continental shelf beyond 200 miles is required
by Annex II, article 4 to provide particulars of those limits to the
Commission with supporting scientific and technical data no later than
10 years following entry into force for it of the Convention. In some
cases, fiscal and technical limitations may mean that this submission
merely begins a process that the coastal State will wish to augment with
further study and data before the Commission makes its recommendations.

The Commission is authorized to make recommendations on the outer limits
of the continental shelf beyond 200 miles. Such recommendations on the
submission are prepared by a seven-member subcommission and approved by
a two-thirds majority of Commission members (Annex II, articles 5 and
6). If the coastal State agrees, the limits of the continental shelf
established by the coastal State on the basis of these recommendations
are final and binding (article 76(8)), thus providing stability to these
claims which may not be contested.

In the case of disagreement by the coastal State with the
recommendations of the Commission, Annex II, article 8 requires the
coastal State, within a reasonable time, to make a revised or new
submission to the Commission.

The Commission is designed to provide a mechanism to prevent or reduce
the potential for dispute and uncertainty over the precise limits of the
continental shelf where the continental margin extends beyond 200 miles.
The process is not adversarial, and the International Sea-bed Authority
plays no part in determining the outer limit of the continental shelf.
Ultimate responsibility for delimitation lies with the coastal State
itself, subject to safeguards against exaggerated claims. The
procedures of the Commission are structured to provide incentives to
ensure that recommendations are not made that are likely to be rejected
by the coastal State. For example, if requested, the Commission may aid
the coastal State in preparing its data for submission.

Annex II provides for the election of the Commission within 18 months of
the entry into force of the Convention. Because the continental shelf
of the United States extends beyond 200 miles in areas of potential oil
and gas reserves, because of its interest in consolidating the rights of
coastal States over their reserves, as well in discouraging exaggerated
claims to offshore jurisdiction, it is important for the United States
to become party as early as possible in order to be able to participate
in the selection of the members of the Commission, as well as to
nominate U.S. nationals for election to the Commission.

The Commission plays no role in the question of delimitation between
opposite or adjacent States.

Revenue Sharing (Article 82). Article 82(1) provides that coastal
States shall make payments or contributions in kind in respect of
exploitation of the non-living resources of the continental shelf beyond
200 miles from the coastal baselines. The choice between "payments" and
"contributions in kind" is left to the coastal State, which normally can
be expected to elect to make payments.

No revenue sharing is required during the first five years of production
at any given site (article 82(2)). Thereafter, payments and
contributions are to be made with respect to all production at that
site. From the sixth to the twelfth year of production, the payment or
contribution is to be made at the rate of one per cent per year of the
value or volume of production at the site, increasing annually by one
per cent. After the twelfth year, the rate remains at seven per cent.

The requisite payments are a small percentage of the value of the
resources extracted at the site. That value is itself a small
percentage of the total economic benefits derived by the coastal State
from offshore resources development. Article 82(3) exempts a small
category of developing States from making payments or contributions in
kind. Payments are to be distributed by the Authority to States Parties
on the basis of criteria for distribution set out in article 82(4).
These funds are distinct from, and should not be confused with, the
Authority's revenues from deep mining operations under Part XI. They
may not be retained or used for purposes other than distribution under
article 82, paragraph 4.

Revenue sharing for exploitation of the continental shelf beyond 200
miles from the coast is part of a package that establishes with clarity
and legal certainty the control of coastal States over the full extent
of their geological continental margins. At this time, the United
States is engaged in limited exploration and no exploitation of its
continental shelf beyond 200 miles from the coast. At the same time,
the United States is a broad margin State, with significant resource
potential in those areas and with commercial firms that operate on the
continental shelves of other States. On balance, the package contained
in the Convention, including revenue sharing at the modest rate set
forth in article 82, clearly serves United States interests.

Statement of Understanding Concerning a Specific Method To Be Used in
Establishing the Outer Edge of the Continental Margin (Annex II to the
Final Act). Annex II to the Final Act contains the Statement of
Understanding adopted by the Third United Nations Conference on the Law
of the Sea that addresses the unusual geographic circumstances involved
in determining the outer edge of the continental margin of Sri Lanka and
India in the southern part of the Bay of Bengal.

This Statement of Understanding bears upon the interpretation and
application of the Convention, but is not part of the Convention as
adopted by the Conference and submitted for the advice and consent of
the Senate.

Domestic Legislation

The principal U.S. legislation governing the U.S. continental shelf is
contained in the Submerged Lands Act of 1953, as amended, 43 U.S.C.
$1301 et seq., and the Outer Continental Shelf Lands Act of 1953, as
amended, 43 U.S.C. $1331 et seq.

ITEM 9:

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

Part XI and Annexes III and IV to the Convention (Part XI) 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 (Agreement)
establish the legal regime governing exploration and exploitation of
mineral resources of the deep sea-bed beyond coastal State jurisdiction
(sea-bed mining regime).

Flaws in Part XI caused the United States and other industrialized
States not to become parties to the Convention. The unwillingness of
industrialized States to adhere to the Convention unless its sea-bed
mining provisions were reformed led the Secretary-General of the United
Nations, in 1990, to initiate informal consultations aimed at achieving
such reform and thereby promoting widespread acceptance of the
Convention. These consultations resulted in the Agreement, which was
adopted by the United Nations General Assembly on July 28, 1994 by a
vote of 121 (including the United States) in favor with 0 opposed and 7
abstentions. As of September 8, 1994, 50 countries had signed the
Agreement, including the United States (subject to ratification). More
are expected to follow.

The objections of the United States and other industrialized States to
Part XI were that:

-- It established a structure for administering the sea-bed mining
regime that did not accord industrialized States influence in the regime
commensurate with their interests;

-- It incorporated economic principles inconsistent with free market
philosophy; and

-- Its specific provisions created numerous problems from an economic
and commercial policy perspective that would have impeded access by the
United States and other industrialized countries to the resources of the
deep sea-bed beyond national jurisdiction.

The decline in commercial interest in deep sea-bed mining, due to
relatively low metals prices over the last decade, created an opening
for reform of Part XI. This waning interest and resulting decline in
exploration activity led most States to recognize that the large
bureaucratic structure and detailed provisions on commercial
exploitation contained in Part XI were unnecessary. This made possible
the negotiation of a scaled-down regime to meet the limited needs of the
present, but one capable of evolving to meet those of the future,
coupled with general principles on economic and commercial policy that
will serve as the basis for more detailed rules when interest in
commercial exploitation reemerges.

The waning of the Cold War and the increasing tendency by nations in
Eastern Europe and the developing world to embrace market principles
gave further impetus to the effort to reform Part XI. These factors led
the States that had historically supported Part XI to accept the need
for reform. Finally, the 60th ratification of the Convention on
November 16, 1993, made it apparent that a failure to reform Part XI
before the entry into force of the Convention on November 16, 1994,
could jeopardize the future of the entire Convention and seriously
impede future efforts to exploit mineral resources beyond national
jurisdiction.

The Agreement fully meets the objections of the United States and other
industrialized States to Part XI. The discussion that follows describes
the sea-bed mining regime of the Convention and the changes that have
been made by the Agreement. The legal relationship between the
Convention and the Agreement is then considered, as well as the
provisional application of the Agreement.

The Sea-bed Mining Regime

Scope of the Regime. The sea-bed mining regime applies to "the Area,"
which is defined in article 1 of the Convention to mean the sea-bed and
ocean floor and subsoil thereof, beyond the limits of national
jurisdiction. The Area is that part of the ocean floor seaward of
coastal State jurisdiction over the continental shelf, that is, beyond
the continental margin or beyond 200 miles from the baseline from which
the breadth of the territorial sea is measured where the margin does not
extend that far. It comprises approximately 60 percent of the sea-bed.

The sea-bed mining regime governs mineral resource activities in the
Area. Article 1(3) defines "activities in the Area" as all activities
of exploration for or exploitation of the mineral resources of the Area.
Those resources are all solid, liquid or gaseous mineral resources on or
under the sea-bed. Prospecting, however, does not require prior
authorization, but may be subject to general regulation.

Common Heritage of Mankind. Article 136 provides that the Area and its
resources are the common heritage of mankind. This principle reflects
the fact that the Area and its resources are beyond the territorial
jurisdiction of any nation and are open to use by all in accordance with
commonly accepted rules.

This principle has its roots in political and legal opinion dating back
to the earliest days of the Republic. President John Adams stated that
"the oceans and its treasures are the common property of all men." With
respect to the sea-bed in particular, President Lyndon Johnson declared
that "we must ensure that the deep seas and the ocean bottoms are, and
remain, the legacy of all human beings." The United States joined in
the adoption, by consensus, of the United Nations General Assembly
Resolution 2749 (XXV)(1970), which set forth this principle. The Deep
Seabed Hard Mineral Resources Act of 1980 (30 U.S.C. $ 1401 et
seq.)(DSHMRA) incorporated this principle into U.S. law.

For reasons of national security, the United States has also supported
this principle to ensure that the deep sea-bed is not subject to
national appropriation, which could lead to confrontation or impede the
mobility or operations of U.S. armed forces. Article 137, like the
DSHMRA, advances these interests by providing that no State shall claim
or exercise sovereignty over any part of the Area or its resources or
recognize such claims by others.

In furtherance of this principle, article 141 declares the Area to be
open to use by all States. Only mining activities are subject to
regulation by the International Sea-bed Authority (discussed below).
Other activities on the deep sea-bed, including military activities,
telecommunications and marine scientific research, may be conducted
freely in accordance with principles of the Convention pertaining to the
high seas, including the duty to have reasonable regard to other uses.

Part XI, as modified by the Agreement, gives specific meaning to the
common heritage principle as it applies to the mineral resources of the
sea-bed beyond coastal State jurisdiction. It is worth noting that the
Agreement, by restructuring the sea-bed mining regime along free market
lines, endorses the consistent view of the United States that the common
heritage principle fully comports with private economic activity in
accordance with market principles.

Administration of the Regime

International Sea-bed Authority. To administer the sea-bed mining
regime, articles 156-7 of the Convention establish a new international
organization, the International Sea-bed Authority (Authority). Article
158 establishes the three principal organs of the Authority: the
Assembly, the Council and the Secretariat. In addition, as subsidiary
organs to the Council, article 163 creates a Legal and Technical
Commission. Section 9 of the Annex to the Agreement adds a Finance
Committee.

Article 163 of the Convention also provides for an Economic Planning
Commission. However, section 1(4) of the Annex to the Agreement
conditions the establishment of the Commission on a future decision by
the Council and, for the time being, delegates its functions to the
Legal and Technical Commission.

With the exception of the Secretariat, all of these organs consist of
representatives whose salaries and expenses are paid by their own
States.

Assembly. The Assembly provided for in articles 159-160 of the
Convention is a plenary body of all members of the Authority. Its main
specific functions are to elect the Council, to elect a Secretary-
General, to assess contributions, to give final approval to rules and
regulations and to the budget, and to decide on the sharing of revenues
to the Authority from mining.

Because of the size of the Assembly, and because its composition and
voting rules do not necessarily ensure adequate protection for all
relevant interests, the Convention and the Agreement provide that the
important decision-making functions of the Assembly are exercised
concurrently with, or are based on the recommendations of, the Council
or the Finance Committee, or both.

Council. The Council is the executive body of the Authority and as such
is primarily responsible for the administration of the sea-bed mining
regime. Article 161 provides that the Council is to be composed of 36
members, four from the major consumers of minerals, four from the
largest investors in deep sea-bed mining, four from major land-based
producers of minerals, six to represent various interests among
developing countries, and the remaining 18 to achieve overall equitable
geographic distribution.

The primary functions of the Council, outlined in article 161, are to
supervise the implementation of the sea-bed mining regime, to approve
plans of work for exploration or exploitation of mineral resources, to
oversee compliance with approved plans of work, to adopt and
provisionally apply rules and regulations pending final approval by the
Assembly, to nominate candidates for Secretary-General of the Authority,
and to make recommendations to the Assembly on subjects upon which the
Assembly must make decisions.

Part XI requires the Assembly to make many of its decisions on the basis
of recommendations from the Council. Section 3(4) of the Annex to the
Agreement expands this requirement to cover virtually all decisions of
the Assembly and further provides that, if the Assembly disagrees with a
Council recommendation, it must return the issue to the Council for
further consideration.

Legal and Technical Commission. The Legal and Technical Commission is a
fifteen-member body of technical experts elected by the Council. Under
article 165, its primary functions are to review and make
recommendations to the Council on the approval of plans of work, to
prepare draft rules and regulations, to direct the supervision of
activities pursuant to approved plans of work, to prepare environmental
assessments and recommendations on protection of the marine environment
and to monitor the environmental impacts of activities in the Area.

Economic Planning Commission. Like the Legal and Technical Commission,
the Economic Planning Commission was to be a fifteen-member technical
body. As noted above, the Economic Planning Commission will not be
established in the near term; its functions will be performed by the
Legal and Technical Commission. Those functions, defined in article
164, are mainly to review trends and factors affecting supply, demand
and prices for minerals derived from the Area and to make
recommendations on assistance to developing States that are shown to be
adversely affected by activities in the Area (see discussion of the
assistance fund below). The fact that such questions will not arise
until commercial mining takes place made it reasonable to defer the
Commission's establishment.

Finance Committee. In response to proposals by the United States and
other industrialized States, section 9 of the Annex to the Agreement
establishes a Finance Committee. Section 9(3) requires the Committee to
include the five largest contributors to the budget until such time that
the Authority generates sufficient funds for its administrative expenses
by means other than assessed contributions. Section 3(7) provides that
decisions of the Council and the Assembly having financial or budgetary
implications shall be based on recommendations of the Finance Committee,
which must be adopted by consensus.

The Functional-Evolutionary Approach

One of the major themes in the negotiations that led up to the Agreement
was the need for the Authority to be cost-effective. While this was a
prime concern of industrialized States, it also had broad support among
developing countries. Sections 1(2) and (3) of the Annex to the
Agreement accordingly stipulate that the establishment of the Authority
and its organs, and the frequency, duration and scheduling of meetings,
are to be governed by the objective of minimizing costs while ensuring
that the Authority evolves in keeping with the functions it must
perform.

Thus, as noted above, the Economic Planning Commission will not be
established until a future decision of the Council, or the approval of a
plan of work for commercial exploitation. In addition, sections 1(4)
and (5) of the Annex to the Agreement identify the specific early
functions on which the Authority should concentrate prior to commercial
mining. These functions largely relate to approving plans of work for
existing mining claims, monitoring compliance, keeping abreast of trends
in the mining industry and metal markets, adopting necessary rules and
regulations relevant to various stages of mining as interest emerges,
promoting marine scientific research, and monitoring scientific and
technical developments (particularly related to protection of the
environment).

The evolutionary approach also underlies the decision to postpone the
elaboration of very specific rules to govern sea-bed mining until the
international community better understands the nature of mining
activities likely to occur on a commercial scale. Instead, the
Agreement establishes a series of broad reforms based on free market
principles that will serve as the basis for more specific rules at an
appropriate time. Significant improvements to the decision-making
structure of the Authority, discussed below, made it possible for the
United States and other industrialized States to have confidence that
such rules and regulations will protect their interests.

Acquisition of Mining Rights

Article 153 and Annex III to the Convention govern the system for
acquiring mining rights.

Prospecting. Article 2 of Annex III to the Convention does not require
prior approval for prospecting. However, prospectors must submit a
written undertaking to comply with the Convention. Prospecting, which
may be conducted simultaneously by more than one prospector, does not
confer any rights with respect to the resources.

Exploration and Exploitation. Article 153 and article 3 of Annex III
provide that exploration and exploitation activities may be conducted by
States Parties or entities sponsored by States Parties. The applicant
submits a written plan of work that upon approval will take the form of
a contract between the applicant and the Authority.

Under article 4 of Annex III, entities shall be qualified if they meet
standards for nationality, control and sponsorship set forth in article
153(2)(b), as well as other general standards related to technical and
financial capabilities and to their performance under previous
contracts.

Protection of the Marine Environment. Article 145 and Annex III,
article 17 of the Convention provide for the adoption of rules,
regulations and procedures by the Council to ensure effective protection
of the marine environment from harmful effects of deep sea-bed mining
activity.

Article 162 also authorizes the Council to disapprove areas for
exploitation where there is a risk of serious harm from mining
activities already underway.

Section 1(7) of the Annex to the Agreement strengthens these
requirements by requiring that all applications for approval of plans of
work shall be accompanied by an assessment of the potential
environmental impacts of the proposed activities and a program for
oceanographic and baseline environmental studies. Section 1(5)(g) of
the Annex to the Agreement also requires the Authority to 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.

Application Fees. Article 13, paragraph 2 of Annex III to the
Convention provides for an application fee of U.S.$500,000. Section
8(3) of the Annex to the Agreement requires instead a U.S.$250,000 fee
for each phase (i.e., exploration or exploitation). If the fee exceeds
the cost incurred in processing the application, the Authority is
required to refund the difference to the applicant.

Approval of Applications. The Authority shall review and approve plans
of work on a first-come first-served basis. Special decision-making
procedures apply to the approval of plans of work. Under article
165(2), the Legal and Technical Commission shall review applications and
make recommendations to the Council on the approval of plans of work.
The Commission is required to base its recommendations on whether the
applicant meets the financial and technical qualifications mentioned
above, whether its proposed plan of work otherwise meets the rules and
regulations adopted by the Council, and whether the applicant has
included undertakings to comply with the Convention and with rules,
regulation and procedures adopted pursuant thereto. Decisions by the
Commission are taken by a simple majority of its fifteen members.

If the Legal and Technical Commission recommends approval of a plan of
work, section 3(1) of the Annex to the Agreement requires the Council to
approve the plan of work within 60 days, unless the Council decides
otherwise by a two-thirds majority of its members, including a majority
of the members present and voting in each of its chambers. The effects
of this provision are to require the Council to act in a timely manner
and to allow two members of either the consumer or investor chambers of
the Council to ensure that such a plan of work is approved. If the
Commission recommends against approval of an application, the Council
can nevertheless approve the application based on its normal decision-
making procedures for issues of substance.

Security of Tenure--Priority of Right. Section 1(9) of the Agreement
requires the Authority to approve plans of work for exploration for a
period of 15 years. At the end of this period, an applicant must apply
for approval of a plan of work for exploitation. If, however, the
applicant can demonstrate that circumstances beyond its control prevent
completion of the work necessary to move to exploitation, or that
commercial circumstances do not justify proceeding to exploitation, the
Authority must extend the approved plan of work for exploration in
additional five-year increments at the request of the contractor.

Under article 16 of Annex III to the Convention, approved plans of work
shall accord the contractor exclusive rights in the area covered by the
plan of work in respect of a specific category of resources. Article 10
of Annex III provides that an approved plan of work for exploration
confers a priority of right on the applicant for approval of a plan of
work for exploitation in the same area. The priority may be withdrawn
for unsatisfactory performance. However, section 1(13) of the Annex to
the Agreement requires unsatisfactory performance to be judged on the
basis of a failure to comply with the terms of an approved plan of work
notwithstanding written warnings by the Authority.

Article 19 of Annex III provides that contracts cannot be revised except
by consent of both parties (i.e., the applicant and the Authority).

Applications by Pioneer Investors. A special procedure exists for
grandfathering into the sea-bed mining regime the mining sites of
enterprises that have conducted substantial activities prior to the
entry into force of the Convention. This procedure applies to entities
from Japan, the Russian Federation, France, China, India, Eastern Europe
and South Korea that have registered sites with the Preparatory
Commission for the International Sea-bed Authority and for the
International Tribunal for the Law of the Sea (Prepcom) in accordance
with Resolution II of the Final Act of the Third United Nations
Conference on the Law of the Sea. The same procedure also applies to
the sites of the mining consortia that have been licensed under the sea-
bed mining laws of the United States, Germany or the United Kingdom.

Section 1(6)(a)(ii) of the Annex to the Agreement allows entities that
have already registered sites with the Prepcom 36 months to file for the
approval of a plan of work under the Convention without jeopardy to
their rights to the mine site. When they file an application, and
accompany it with the certificate of compliance recently issued by the
Prepcom, it will be approved by the Authority, provided that it conforms
to the rules, regulations and procedures of the Authority.

With regard to consortia licensed by the United States, Germany or the
United Kingdom, section 1(6)(a)(i) of the Annex to the Agreement
provides that they will be considered to have met the financial and
technical qualifications necessary for approval of a plan of work if
their sponsoring State certifies that they have expended U.S.$30,000,000
in research and exploration activities and have expended no less than 10
percent of that amount in the location, survey and evaluation of the
area referred to in the plan of work. All three of the consortia with
current exploration permits issued pursuant to the DSHMRA meet this
standard. In addition, section 1(6)(a)(iii) provides that, in keeping
with the principle of non-discrimination, the contracts with these
consortia "shall include arrangements which shall be similar to and no
less favorable than those agreed with" any pioneer investor registered
by the Prepcom.

Reserved Areas. Applicants for exploration rights under the Convention
must set aside reserved areas for possible future use by the Enterprise
(an arm of the Authority that, under certain circumstances, may
undertake mining activity in its own right). Article 8 of Annex III to
the Convention requires that each application cover an area sufficiently
large and of sufficient value to allow for two mining operations. The
applicant is responsible for dividing the area into two parts of equal
estimated value. The Authority must then designate one of the areas to
be reserved for future use by the Enterprise and the other to be
reserved for the applicant.

Section 2(5) of the Annex to the Agreement modifies articles 8 and 9 of
Annex III to the Convention to take into account the fact that the
Enterprise, if it begins to undertake mining activity, will operate
through joint ventures and to allow an applicant to participate in the
exploration and development of a reserved area that it prospected.
Under section 2(5), the miner that contributed the area has the first
option to enter into a joint venture with the Enterprise for the
exploration and exploitation of that area. Furthermore, if the
Enterprise does not submit an application for approval of a plan of work
for the reserved area within 15 years of the date on which that area was
reserved, or the date on which the Enterprise becomes operational,
whichever is later, the miner that contributed the area can apply to
exploit it if the miner makes a good faith offer to include the
Enterprise as a joint venture partner.

The pioneer investors that registered their claims with the Prepcom
complied with this obligation at the time of registration. However, the
areas registered by some pioneer investors (i.e., Japan, France and the
Russian Federation) were not large enough to provide a reserved area.
After some negotiation, the Prepcom allowed these pioneer investors
collectively to reserve a single site and to self-select a major portion
of the area they retained. If U.S.-licensed consortia confronted
practical problems in registering claims with the Authority, they would
be entitled to "no less favorable treatment" under section 1(6)(a)(iii)
of the Annex to the Agreement.

Compliance. Article 153(4) of the Convention requires the Authority to
exercise such control as is necessary to ensure compliance with the
Convention, rules and regulations adopted by the Council, and approved
plans of work. In addition, article 4(4) of Annex III and article 139
provide that States Parties are also responsible for ensuring compliance
by the nationals or enterprises they sponsor. However, a State Party
will not be liable for damage caused if it has taken reasonable measures
within the framework of its legal system to ensure compliance by persons
or entities under its jurisdiction.

Decision-making

As noted above, decision-making was one of the key areas of concern for
the United States and other industrialized States in the reform of Part
XI. In particular, the United States objected to the absence of a
guaranteed seat in the 36-member Council, to the possibility that the
Assembly could dominate decisions within the Authority (discussed above)
and to the fact that industrialized countries did not have influence on
the Council commensurate with their interests.

U.S. Seat. The United States is now guaranteed a seat on the Council in
perpetuity. Section 3(15) of the Annex to the Agreement provides that
the consumer chamber in the Council shall include the State that, upon
the entry into force of the Convention, has the largest economy in terms
of gross domestic product.

Decisions by the Council. Because the requirements for representation
of developing countries and for equitable geographic distribution set
forth in article 161 of the Convention would likely produce a majority
of developing States on the Council, the United States and other
industrialized States sought to change the voting rules to ensure that
the United States, and others with special interests that would be
affected by decisions of the Authority, would have special voting rights
in the Council. Section 3(5) of the Annex to the Agreement provides
that, when consensus cannot be reached in the Council, decisions on
questions of substance shall be taken by a two-thirds majority of the
members present and voting, provided that the decision is not opposed by
a majority in any of the four-member consumer, investor or producer
chambers in the Council.

This chambered voting arrangement will ensure that the United States and
two other consumers, or three investors or producers acting in concert,
can block substantive decisions in the Council. The only exceptions to
this rule are for four substantive decisions that, under article
161(8)(d) of the Convention, must be made by consensus. Thus, consensus
is required for any decision to provide protection to developing States
that are land-based producers of minerals from adverse effects from sea-
bed mining; any decision to recommend to the Assembly rules and
regulations on the sharing of financial benefits from sea-bed mining
(revenue sharing); any decision to adopt and apply provisionally rules,
regulations and procedures implementing the sea-bed mining regime or
amendments thereto; and any decision to adopt amendments to the sea-bed
mining regime. The requirement that these issues be made by consensus
in effect gives the United States a veto with respect to them.

Developing States argued that the six-member developing country category
in the Council should also be treated as a chamber for voting purposes.
The United States and other industrialized States opposed this on the
grounds that developing States in the Council already were assured of
sufficient numbers to protect their interests. Sections 3(9) and
3(15)(d) of the Annex to the Agreement represent a compromise on this
issue. Those provisions combine the six-member developing State
category with the developing States elected on the basis of ensuring
overall equitable geographic distribution to serve as a chamber for
voting purposes. This would allow 11 developing States acting in
concert to block a decision, compared to the 13 votes needed to block an
overall two-thirds majority in the Council.

Composition of the Council. Article 160(12)(a) of the Convention
authorizes the Assembly to elect the members of the Council. Section
3(10) of the Annex to the Agreement refines this by providing for all
States Parties that meet the criteria of a specific category (i.e.,
consumers, investors and producers) to nominate their representatives in
those categories. This refinement ensures that each category of States
Parties will be represented in the Council by members of its own
choosing.

Rulemaking: General. Article 160(f)(ii) authorizes the Assembly to
approve rules, regulations and procedures of the Authority governing the
administration of the sea-bed mining regime that have been adopted by
the Council. Article 162(2)(o)(ii) provides that the Council shall
adopt and provisionally apply such rules, regulations and procedures
pending their approval by the Assembly. As noted above, the Council
decision to adopt and provisionally apply rules, regulations and
procedures must be taken by consensus. The result is that no
implementing rules can be adopted or applied without the consent of the
United States.

Section 3(4) of the Annex to the Agreement further protects U.S.
interests by requiring that decisions of the Assembly on any matter for
which the Council also has competence, or any administrative, budgetary
or financial matter, must be based on recommendations of the Council.
If the Assembly disagrees with the Council, it must send the
recommendations back for further consideration in light of the views of
the Assembly. In the meantime, rules adopted by the Council continue to
apply provisionally pending their final approval by the Assembly.

Commercial Exploitation Rules. As noted above, the Agreement sets forth
general market-oriented principles to provide the basis for future
rulemaking when commercial production appears likely. The Agreement
provides a special procedure for adopting such rules to create effective
incentives for their development in a timely fashion so that delay in
their adoption would not impede commercial operations.

Section 1(15) of the Annex to the Agreement sets forth two means by
which the process of preparing the necessary rules can be initiated.
Paragraph 15(a) provides that the Council can initiate the process when
it determines that commercial exploitation is imminent or at the request
of a State whose national intends to apply for approval of a plan of
work for exploitation. Paragraph 15(b) requires the Council to complete
its work on the rules within two years of receiving such a request.
Paragraph 15(c) provides that, if such work is not completed within this
timeframe and an application for approval of a plan of work for
exploitation is pending, the Council must consider and provisionally
approve the proposed plan of work based on the Convention and any rules
adopted provisionally, as well as the principle of non-discrimination.

Review Conference. The United States and other industrialized States
strongly objected to the Review Conference provided for in article 155
of the Convention. The Review Conference would have convened 15 years
after the commencement of commercial production to reevaluate Part XI
and to propose amendments to the Convention. Such amendments could have
entered into force for all States if adopted and ratified by three-
quarters of the States Parties. This would have allowed the possibility
that the United States could be bound by amendments that it had opposed.

Section 4 of the Annex to the Agreement eliminates the Review
Conference. Any reconsideration of the sea-bed mining regime is subject
to the normal procedures for adopting amendments to the sea-bed mining
provisions of the Convention contained in articles 314-316. Article 314
requires that amendments to the sea-bed mining regime be adopted by the
Assembly and the Council of the Authority. Article 16l(8)(d) requires
that amendments be adopted in the Council by consensus, thus ensuring
the United States a permanent veto over amendments. Amendments to the
sea-bed mining regime adopted by this procedure enter into force when
ratified by three-quarters of the States Parties (article 316(5)).

Economic and Commercial Policy Concerns

As discussed above, the United States and other industrialized States
objected to many features of Part XI on economic and commercial policy
grounds. The United States objected, for example, to the provisions of
Part XI on production limitations, financial terms of contracts,
technology transfer and the Enterprise because of the negative effect
they would have had on commercial exploitation of sea-bed mineral
resources.

While there developed a general willingness on the part of other States
to meet these objections, the effort to reform Part XI had to address
the difficulty of predicting when interest in commercial exploitation
will reemerge, which specific resources will be of interest at that
time, and what economic environment will prevail. The Agreement
resolves these difficulties by adopting general principles designed to
restructure the sea-bed mining regime along free market lines. The
States Parties will implement these general principles through the
Authority as the need arises, in accordance with the new decision-making
rules discussed above.

The Agreement also contains specific provisions to meet certain specific
objections. The substantive solutions to the individual issues of
concern are next discussed.

Production Limitations. Article 151 of the Convention would have
established an elaborate system of controls on production of minerals
from the deep sea-bed, ostensibly to protect land-based producers of
minerals from adverse impacts due to competition from deep sea-bed
mining. The controls were based on a formula for estimating the growth
in the demand for minerals and then limiting sea-bed mining to a
percentage of that growth, by requiring miners to obtain production
authorizations from the Authority. In addition, article 151 would have
allowed the Authority to participate in commodity organizations with the
objective of promoting growth, efficiency and stability of markets.
This could have included commodity agreements with production controls,
quotas or other economic provisions for intervening in commodity
markets.

In response to the objections of the United States and other
industrialized States, section 6 of the Annex to the Agreement
eliminates all such provisions. In their place, section 6(1) bases the
production policy of the Authority on sound commercial principles. It
provides that the provisions of the General Agreement on Tariffs and
Trade (or agreements that replace the GATT) will apply to sea-bed mining
beyond national jurisdiction. In particular, there can be no
subsidization of sea-bed mining beyond national jurisdiction that would
not be permitted under GATT rules, and no discrimination between
minerals produced from the deep sea-bed and minerals produced from other
sources.

Disputes arising from allegations that a State Party is not complying
with the relevant GATT provisions would be subject to GATT dispute
settlement procedures where both States Parties are party to the
relevant GATT arrangements. If one or more parties to the dispute are
not party to the relevant GATT arrangements, disputes would be referred
to the dispute settlement procedures under the Convention (see
discussion of dispute settlement below).

The transition to the World Trade Organization from the present GATT may
require clarification of these provisions. For example, issues may
arise concerning which agreement applies when some States Parties to the
Convention remain party to the former GATT arrangements and others
become party to the new arrangements. However, with the timing of the
re-emergence of interest in commercial production from the deep sea-bed
uncertain, it is possible that the question will resolve itself before
issues arise in this context.

Economic Assistance. In negotiating the Agreement, land-based producers
of minerals that are found on the sea-bed agreed to eliminate production
controls in exchange for the establishment of an economic assistance
fund.

Article 151(10) of the Convention empowers the Authority to establish a
"system of compensation or take other measures of economic adjustment
assistance" with the objective of assisting "developing countries which
suffer serious adverse effects on their export earnings or economies
resulting from a reduction in the price of an affected mineral or in the
volume of exports of that mineral, to the extent that such reduction is
caused" by deep sea-bed mining.

Section 7 of the Annex to the Agreement contemplates that this provision
will be implemented through the establishment of an economic assistance
fund. However, such a fund may only be established when the revenues of
the Authority exceed those necessary to cover its administrative
expenses (i.e., when revenues from mining are sufficient to avoid the
need for assessed contributions from members for administrative expenses
and a surplus exists). Only revenues from mining and voluntary
contributions may be used to finance the fund. The United States veto
in the Finance Committee and its influence in the Council are adequate
to insure that such a fund is not established or operated in a manner
contrary to U.S. interests.

Financial Terms of Contracts. Article 13 of Annex III to the Convention
established detailed financial arrangements that were to become part of
the contracts between the Authority and the miner and that would have
served as the means for the Authority to recover economic rents from the
development of mineral resources of the sea-bed beyond national
jurisdiction.

Among these arrangements were a U.S.$1,000,000 annual fee from the date
of approval of a plan of work for exploration. Upon the commencement of
commercial production, the miner would have had to elect between the
payment of a production charge or a combination of a production charge
and a share of net proceeds from mining. The rates of both were
graduated, starting out lower in the early years and increasing in the
latter years of production, and were also adjustable, based on
profitability.

These arrangements were extremely complex and relied upon very specific
assumptions about the nature and profitability of a sea-bed mining
operation based on a specific economic model. The United States and
other industrialized States objected that these arrangements were both
excessive and unduly rigid, given the uncertainties regarding the timing
and nature of future mining activities. In particular, the United
States objected to charging a U.S.$1,000,000 annual fee during the
exploration stage, when miners would have no income stream.

In response to these objections, section 8 of the Annex to the Agreement
dispenses with these detailed provisions and provides that a system of
financial arrangements shall be established in the future based on
certain basic principles. Specifically, it requires that the system be
fair to the Authority and the miner, that the rates be comparable to
those prevailing with respect to land-based mining to avoid competitive
advantages or disadvantages, that the system not be complicated and not
impose major administrative costs on the Authority or the miner, and
that consideration be given to a royalty or a combination royalty and
profit-sharing system.

The U.S.$1,000,000 annual fee charged during the exploration stage is
eliminated. The Council will fix the amount of an annual fee during
commercial production, which can be credited against payments due under
the royalty or profit sharing arrangements. Thus, the effect is to
establish a minimum annual fee during commercial production.

Technology Transfer. The United States and other industrialized
countries objected to the mandatory technology transfer provisions
contained in article 5 of Annex III to the Convention. These provisions
mandated the inclusion in the miners' contract of an undertaking on the
part of the miner to transfer sea-bed mining technology to the
Enterprise or developing countries if they were unable to obtain the
technology on the open market. If transfer were not assured, the miner
could not use such technology in its own mining activities.

Section 5 of the Annex to the Agreement eliminates these compulsory
transfer provisions. In very general terms, article 144 of the
Convention encourages the promotion of the transfer of technology and
scientific knowledge related to deep sea-bed mining, including programs
to facilitate access under fair and reasonable terms and conditions and
to promote training. Section 5 of the Annex to the Agreement provides
that the Enterprise and developing countries wishing to acquire sea-bed
mining technology should do so on the open market or through joint
ventures. If they are unsuccessful in obtaining such technology, the
Authority may request miners and their sponsoring States to cooperate
with it in facilitating access to technology "on fair and reasonable
commercial terms and conditions, consistent with the effective
protection of intellectual property rights."

The Enterprise: Background. Article 170 of the Convention establishes
an operating arm of the Authority called the Enterprise. Article
153(2)(a) provides that the Enterprise, as well as other commercial
enterprises, may apply to the Authority for mining rights.

The origins of the Enterprise date back to the early days of the Third
United Nations Conference on the Law of the Sea, when certain developing
States sought a regime where all mining would be conducted directly by
the Authority, with private miners relegated to the role of service
contractors. Industrialized States favored a system of mining by States
and private companies licensed by the Authority. In 1976, Secretary of
State Henry Kissinger proposed the compromise that came to be known as
the "parallel system" in which the Authority, through the Enterprise, as
well as States and private companies, would both engage in mining
activities. However, the negotiations that followed left the Enterprise
in a privileged position that could have made it difficult for private
entities to compete.

Throughout the effort to reform Part XI, the United States sought to
eliminate the Enterprise by pointing to the privatization programs
underway in many parts of the world. Nevertheless, among many
developing States, in particular the least developed countries, where
economic reform had not yet begun to take root, strong resistance
persisted. Largely because the Enterprise symbolized the aspirations of
developing States to have a means to participate in sea-bed mining,
retention of the Enterprise remained a bedrock position of the
developing States as a whole.

The Agreement retains the Enterprise but renders it harmless by
addressing the specific problems and ensuring that the Enterprise could
only become operational following a decision by the Council, and only if
the Council concludes that the operations of the Enterprise would
conform to sound commercial principles.

Problems. The three main problems posed by the Enterprise were that its
first operation would be financed by loans and loan guarantees from the
industrialized States, that it would benefit from numerous provisions
discriminating in its favor vis-a-vis other commercial entities, and
that other commercial entities would be obliged to provide it with
technology (discussed above).

Solutions. Responding to these concerns, section 2(2) of the Annex to
the Agreement provides that the Enterprise will conduct its first
operations through joint ventures with other commercial enterprises.
Section 2(3) eliminates the obligation for States Parties to finance its
operations. Section 2(4) subjects the Enterprise to the same
obligations as other miners and modifies article 153(3) of the
Convention to ensure that any plan of work submitted by the Enterprise
must be in the form of a contract like that of any other miner and thus
be subject to the requirements applicable to any other contractor.
Finally, section 5 of the Annex to the Agreement removes the compulsory
technology transfer provisions.

Council Decision. Section 2(2) of the Annex to the Agreement contains
one of the most significant limitations on the Enterprise by preventing
the Enterprise from operating as an independent entity until the Council
issues a directive to that effect. In the interim, the secretariat of
the Authority, subject to the control of the Council, will perform any
necessary functions to prepare for the possible future operation of the
Enterprise.

The Council must take up the issue of the independent operation of the
Enterprise when an application by another commercial entity is approved
for commercial exploitation, or when a proposal is made by another
commercial entity to form a joint venture with the Enterprise. The
decision by the Council must be based on a conclusion that operations by
the Enterprise would accord with sound commercial principles. If such a
decision were ever made, the Enterprise would then have to proceed
through the normal process of applying for mining rights.

The enhanced role of the United States and other industrialized
countries in the Council will allow them to ensure that, if a decision
is ever made to make the Enterprise operational, it will only be on a
basis that the United States would find acceptable. For example, if
sea-bed mining ever generates sufficient funds through royalties to
service the budget of the Authority and still leave a surplus, the
Authority might decide to use some of the funds to invest in a joint
venture with other commercial entities. It is possible that such an
equity position in a sea-bed mining operation could be structured so as
to pose no serious problems from the standpoint of United States
interests. It is equally possible that, by the time commercial mining
takes place, developing States as well as industrialized countries will
recognize the Enterprise as a relic of the past and not seek to make it
operational.

Budget of the Authority. Article 173 of the Convention provides that
the administrative budget of the Authority will be met by assessed
contributions made by States Parties to the Convention until the time
that other funds (i.e., revenues from mining or voluntary contributions)
are adequate to meet the administrative expenses of the Authority.
Section 1(14) of the Annex to the Agreement modifies these provisions by
requiring that, until the Agreement enters into force, the
administrative expenses of the Authority will be met through the budget
of the United Nations.

The decision to draw on the United Nations budget was based on the need
to provide for provisional application of the Agreement prior to its
entry into force (see below), in order to allow States that had not yet
become party to the Convention, such as the United States, to
participate in the Authority. States that had already ratified or
acceded to the Convention insisted that those States which participated
in the Authority only through their provisional application of the
Agreement should also support the budget. Temporary funding through the
United Nations provided a convenient means to accomplish this.

At the last session of the Prepcom (August 1994), the United States
achieved a budget recommendation to the United Nations General Assembly
that was approximately 30 percent lower than Secretariat estimates for
1995. It assumes a staff for the Authority of six professionals and 17
support personnel. The total budget is estimated at $2,489,600 and will
not necessitate an increase in the overall United Nations budget for the
1994-95 biennium, as it will largely be offset by savings from the
discontinuation of activities in support of the Prepcom.

Privileges and Immunities

Articles 177-183 of the Convention, as well as article 13 of Annex IV to
the Convention, require States Parties to provide certain privileges and
immunities to the Authority and to certain persons connected to the
Authority. In the near term, due to the limited interest in deep sea-
bed mining and the attendant need for only low-level activity by the
Authority, the foreseeable activities of the Authority that may occur in
the United States which would implicate these privileges and immunities
will take place at United Nations Headquarters in New York, where
representatives of the Authority's member States and members of the
Authority's secretariat may travel for meetings.

With respect to such activities, the United States is already obligated
to provide all relevant privileges and immunities pursuant to existing
agreements in force for the United States, including the Agreement
between the United Nations and the United States regarding the
headquarters of the United Nations, as amended (TIAS 1676, 5961, 6176,
6750, 9955; 61 Stat(4) 3416; 17 UST 74, 17 UST 2319; 20 UST 2810, 32 UST
4414; 11 UNTS 11, 554 UNTS 308, 581 UNTS 362; 687 UNTS 408) and the
Convention on the Privileges and Immunities of the United Nations (TIAS
6900; 21 UST 1418; 1 UNTS 16).

The Agreement and Its Relationship to the Convention

The Agreement revises, in a legally binding manner, the objectionable
provisions of Part XI. As discussed above, these revisions
satisfactorily address the objections raised by the United States and
other industrialized countries to Part XI.

The Agreement contains two parts, a main body and an Annex. All of the
substantive revisions to Part XI appear in the Annex, while the main
body of the Agreement establishes the legal relationship between the
Convention and the Agreement, provides options by which States may
consent to be bound by the Agreement, and sets forth the terms of entry
into force of the Agreement and of its provisional application, and
addresses certain subsidiary issues.

Article 1 of the Agreement obligates States Parties to undertake to
implement Part XI in accordance with the Agreement. Article 2 states
that the provisions of the Convention and those of the Agreement are to
be interpreted and applied together as one single instrument; in the
event of any inconsistency, the provisions of the Agreement prevail.
These articles make the original provisions of Part XI legally subject
to those of the Agreement.

Under article 3, the Agreement became open for signature by States and
certain other entities (including the European Union) during a twelve-
month period beginning on the date on which the United Nations General
Assembly adopted the Agreement, i.e., July 28, 1994. Article 4(1) and
(2) seek to ensure that States may thereafter only become party to the
Agreement and the Convention together.

Article 4(3) allows States to choose among several alternative
procedures by which to express their consent to be bound by the
Agreement. The United States signed the Agreement subject to
ratification, pursuant to article 4(3)(b).

Article 4(3)(c), together with article 5, provide another mechanism by
which those States that have already ratified or acceded to the
Convention (a category that does not include the United States) may
become party to the Agreement. Any such State may sign the Agreement
and become party to it without further action unless that State
otherwise notifies the Depositary within twelve months of the
Agreement's adoption. In the event of such notification, the notifying
State is eligible to accede to the Agreement under article 4(3)(d).

This simplified procedure resolved an overarching difficulty in the
effort to revise Part XI. During negotiation of the Agreement, those
States, including the United States, that had not ratified the
Convention because of objections to Part XI insisted on the need for a
legally binding instrument to revise Part XI. Many of those States that
had ratified the Convention insisted that they would not return to their
parliaments and seek formal approval of a new instrument that would
revise Part XI.

The simplified procedure satisfies both objectives in a legally sound
manner. Under customary international law, as reflected in article
12(1)(a) of the Vienna Convention on the Law of Treaties (92nd Congress,
1st Session, Senate Executive "L"), "the consent of a State to be bound
by a treaty is expressed by signature of its representative when . . .
the treaty provides that signature should have that effect." In the
case of the Agreement, article 4(3)(c) and article 5 provide that, for
any State that has ratified or acceded to the Convention, signature of
the Agreement will bind the signatory State to the Agreement 12 months
after the Agreement's adoption, unless that State notifies the
Depositary otherwise.

One distinct advantage of the simplified procedure is that it allows a
large number of States that have already ratified or acceded to the
Convention easily to become party to the Agreement as well, thereby
reducing the possibility that some States will remain party only to the
Convention.

Article 6 governs entry into force of the Agreement. By its terms, the
Agreement will enter into force 30 days after the date on which 40
States have established their consent to be bound by it, provided that
at least seven of those States meet the criteria established for pioneer
investors in deep sea-bed mining set forth in Resolution II of the Third
United Nations Conference on the Law of the Sea and that, of those seven
States, five are developed States. The United States is a pioneer
investor in deep sea-bed mining for these purposes.

Article 7 provides for provisional application of the Agreement pending
its entry into force. If the Agreement does not enter into force by
November 16, 1998, due to the failure of the requisite States with
mining interests to adhere to it, provisional application must
terminate.

Provisional application advances important U.S. objectives. Without
provisional application of the Agreement, the Convention would enter
into force on November 16, 1994 unrevised; i.e., the provisions of the
Agreement that resolve the objectionable features of Part XI would not
be effective. The Authority would begin to function under the terms of
the Convention, unaffected by the remedial provisions introduced by the
Agreement.

Provisional application also provides a means to give effect to the
remedial provisions of the Agreement without using the cumbersome
amendment procedures contained in the Convention itself. Those
amendment procedures would at the very least substantially delay the
entry into force of those provisions and could prevent them from ever
coming into force.

By virtue of its signature of the Agreement, the United States agreed to
apply the Agreement provisionally beginning November 16, 1994. Article
7(2) provides flexibility in allowing States to apply it provisionally
"in accordance with their national or internal laws and regulations."
This approach, which is similar to that taken in other international
agreements that have been provisionally applied, ensures that existing
legislation provides sufficient authority to implement likely U.S.
obligations during the period of provisional application.

By provisionally applying the Agreement, the United States can promote
its sea-bed mining interests by participating in the very first meetings
of the Authority, at which critical decisions are likely to be taken.
As discussed above, the Agreement gives the United States considerable
influence over the decisions of the Authority, which would be lost if
the United States did not participate from the outset.

Provisional application of the Agreement is consistent with
international and U.S. law. Article 25 of the Vienna Convention on the
Law of Treaties provides for the provisional application of agreements
pending their entry into force. Substantial State practice has
developed in this regard; a growing list of international agreements
have been provisionally applied.

The United States has provisionally applied numerous agreements,
including several international commodity agreements and other treaties
pending their entry into force for the United States.

Articles 8 through 10 of the Agreement address subsidiary issues
relating to the application of the Agreement.

United States Deep Sea-bed Mining Legislation

The DSHMRA constitutes the national licensing and permitting regime for
U.S. entities engaged in deep sea-bed mining activities.

The basic premise of the DSHMRA is that the interests of the United
States would best be served by U.S. participation in a widely acceptable
treaty governing the full range of ocean uses, including establishment
of an international regime for development of mineral resources of the
sea-bed beyond national jurisdiction. Recognizing in 1980 that an
acceptable international regime had not been achieved, Congress enacted
the DSHMRA both to provide a legal framework within which U.S. entities
could continue deep sea-bed mining activities during the interim period
pending an acceptable treaty (and environmental protection concerns
could be addressed), and to facilitate a smooth transition from this
national regime to the future international regime established by such a
treaty.

Anticipating the components of an acceptable international regime,
Congress incorporated into the DSHMRA basic elements that are similar to
those now found in Part XI as modified by the Agreement. These include:

-- Recognition of U.S. support for the principle that the deep sea-bed
mineral resources are the common
heritage of mankind (30 U.S.C. $ 1401(a)(7));

-- A disclaimer of sovereignty over areas or resources of the deep sea-
bed (30 U.S.C. $ 1402(a));

-- Recognition of the likelihood of payments to an international
organization with respect to hard mineral resources (30 U.S.C. $
1402(a)(15));

-- Provision of measures for protection of the marine environment,
including an environmental impact statement and monitoring (e.g., 30
U.S.C. $ 1419(a) and (f)); and

-- Establishment of a regime based on a first-in-time priority of
right, on objective, nondiscriminatory criteria and regulations, and on
security of tenure through granting of exclusive rights for a fixed time
period and with limitations on the ability to modify authorization
obligations.

In addition to these basic elements, Subchapter II of the DSHMRA sets
forth criteria that would need to be met for an international regime to
be acceptable to the United States, namely, assured and
nondiscriminatory access for U.S. citizens, under reasonable terms and
conditions, to deep sea-bed resources, and assured continuity in mining
activities undertaken by U.S. citizens prior to entry into force of the
agreement under terms, conditions, and restrictions that do not impose
significant new economic burdens that have the effect of preventing
continuation of operations on a viable economic basis (30 U.S.C. $
401(1)). The DSHMRA also recognizes that a treaty must be judged by the
totality of its provisions (30 U.S.C. $ 1441(2)).

As described above, the Agreement clearly revises Part XI in a manner
that satisfies these criteria. Of particular importance in this context
are the elimination of production controls, mandatory technology
transfer by operators, the annual U.S.$1,000,000 fee during exploration
and the onerous economic rent provisions of Part XI; the provision to
U.S. entities of non-discriminatory access to deep sea-bed mineral
resources on terms no less favorable than those provided for registered
pioneer investors; the limitations on contract modifications; the
restraints imposed on the operation of the Enterprise; and the revisions
to the decision-making provisions of Part XI that will allow the United
States to protect its interests and those of U.S. citizens.

Provisional application of the Agreement, discussed above, advances a
central policy reflected in the DSHMRA of providing for a smooth
transition and continuity of activity between the regime established in
the DSHMRA and an acceptable international regime established by treaty.
For the reasons set forth above, provisional application provides the
only workable transition to the new treaty regime.

The DSHMRA seeks to ensure that the transition to an international
regime does not result in premature termination of on-going commercial
recovery operations by U.S. citizens. In fact, no commercial sea-bed
mining is currently being conducted by U.S. citizens or by those of
other nations, nor is such activity anticipated in the near future.

Under these circumstances, and in view of article 7(2) of the Agreement
(providing for provisional application in accordance with national or
internal laws or regulations), amendments to the DSHMRA will not be
necessary during the provisional application period. International
agreements regarding mutual respect of claims in force with nations of
other pioneer investors will also remain in force during this period.
As implementation of the international regime proceeds, the
Administration will consult with Congress regarding the need for
additional legislation prior to entry into force of the Convention and
the Agreement for the United States.

ITEM 10:

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

The Convention recognizes the essential role of marine scientific
research in understanding oceanic and related atmospheric processes and
in informed decision-making about ocean uses and coastal waters. Part
XIII affirms the right of all States to conduct marine scientific
research and sets forth obligations to promote and cooperate in such
research. The Convention encourages publication or dissemination of the
data and information resulting from marine scientific research,
consistent with the general U.S. policy of advocating the free and full
disclosure of the results of scientific research.

Part XIII confirms the rights of coastal States to require consent for
marine scientific research undertaken in marine areas under their
jurisdiction. These rights are balanced by specific criteria to ensure
that the consent authority is exercised in predict- able and reasonable
fashion so as to promote maximum access for research activities.

The United States is a leader in the conduct of marine scientific
research and has consistently promoted maximum freedom for such
research. The framework offered by the Convention offers the best means
of pursuing this objective, while recognizing extended coastal State
resource jurisdiction. Although the United State does not exercise the
option of requiring consent for marine scientific research in the U.S.
EEZ, the Convention's procedures and criteria for obtaining coastal
State consent to conduct marine scientific research in areas under
national jurisdiction provide a sound basis for ensuring access by U.S.
scientists to such areas.

The term "marine scientific research," while not defined in the
Convention, generally refers to those activities undertaken in the ocean
and coastal waters to expand knowledge of the marine environment and its
processes. It is distinguished from hydrographic survey, from military
activities, including military surveys, and from prospecting and
exploration.

General Provisions (Section 1, Articles 238-241)

Part XIII sets forth principles governing the conduct of marine
scientific research, proceeding from the right set forth in article 238
of all States (irrespective of their geographic location), as well as
competent international organizations, to conduct marine scientific
research in accordance with the terms of the Convention. Article 239
further calls upon States and competent international organizations to
promote and facilitate such research.

Article 240 requires marine scientific research to be conducted
exclusively for peaceful purposes. (See discussion below regarding
article 301.) It is to be carried out with appropriate scientific
methods and means, compatible with the Convention; it is not to
interfere unjustifiably with other legitimate uses of the sea compatible
with the Convention; it is to be duly respected in the course of such
other uses; and it is to be conducted in compliance with all relevant
regulations adopted in conformity with the Convention, including those
for the protection and preservation of the marine environment.

Article 241 provides that marine scientific research is not to
constitute the legal basis for any claim to any part of the marine
environment or its resources. This provision parallels similar
provisions in articles 89 and 137(1) and (3) on the high seas and the
Area, respectively.

International Cooperation (Section 2, Articles 242-244)

Articles 242 and 243 elaborate upon the obligation of States and
competent international organizations to promote international
cooperation in marine scientific research and to cooperate, through
conclusion of bilateral and multilateral agreements, in creating
favorable conditions for the conduct of research and in integrating the
efforts of scientists in studying marine phenomena and processes and
their interrelationships.

Article 244 further obligates States and competent international
organizations to make available by publication and dissemination through
appropriate channels information on proposed major research programs, as
well as knowledge resulting from marine scientific research. To this
end, States and competent international organizations are called upon to
promote actively the flow of data and information resulting from marine
scientific research. Likewise, the capabilities of developing countries
to carry out marine scientific research are to be promoted.

The Intergovernmental Oceanographic Commission (IOC) plays a leading
role in marine scientific research programs, particularly in cooperative
undertakings with other United Nations agencies and with other
governmental and non-governmental organizations.

Conduct and Promotion of Marine Scientific Research (Section 3, Articles
245-257)

The Convention sets forth the rights and obligations of States and
competent international organizations with respect to the conduct of
marine scientific research in different areas.

Territorial Sea. Article 245 recognizes the unqualified right of
coastal States to regulate, authorize and conduct marine scientific
research in the territorial sea. Therefore, access to the territorial
sea, and the conditions under which a research project can be conducted
there, are under the exclusive control of the coastal State (see also
articles 21(1)(g), 19(2)(j)), 40 and 54).

EEZ and Continental Shelf. Under article 246, coastal States have the
right to regulate, authorize and conduct marine scientific research in
the EEZ and on the continental shelf. Access by other States or
competent international organizations to the EEZ or continental shelf
for a marine scientific research project is subject to the consent of
the coastal State. The consent requirement, however, is to be exercised
in accordance with certain standards and qualifications.

In normal circumstances, the coastal State is under the obligation to
grant consent. (It is explicitly provided that circumstances may be
normal despite the absence of diplomatic relations.) The coastal State,
nevertheless, has the discretion to withhold its consent if the research
project is of direct significance for the exploration and exploitation
of living or non-living resources; involves drilling, the use of
explosives or introduction of harmful substances into the marine
environment; or involves the construction, operation and use of
artificial islands, installations or structures. (The first of these
grounds for withholding consent may be used on the continental shelf
beyond 200 miles only in areas specially designated as under
development.) It may also withhold consent if the sponsor of the
research has not provided accurate information about the project or has
outstanding obligations in respect of past projects.

The consent of a coastal State for a research project may be granted
either explicitly or implicitly. Article 248 requires States or
organizations sponsoring projects to provide to the coastal State, at
least six months in advance of the expected starting date of the
research activities, a full description of the project. The research
activities may be initiated six months after the request for consent,
unless the coastal State, within four months, has informed the State or
organization sponsoring the research that it is denying consent for one
of the reasons set forth in article 246 or that it requires more
information about the project. If the coastal State fails to respond to
the request for consent within four months following notification,
consent may be presumed to have been granted (article 252). This
provision should encourage timely responses from coastal States to
requests for consent.

Consent may also be presumed under article 247 to have been granted by a
coastal State for a research project in its EEZ or on its continental
shelf undertaken by a competent international organization of which it
is a member, if it approved the project at the time that the
organization decided to undertake the project and it has not expressed
any objection within four months of the notification of the project by
the organization.

Article 249 sets forth specific conditions with which a State or
competent international organization sponsoring research in the EEZ or
on the continental shelf of a coastal State must comply. These include
the right of the coastal State to participate in the project, in
particular through inclusion of scientists on board research vessels;
provision to the coastal State of reports and access to data and
samples; assistance to the coastal State, if requested, in assessing and
interpreting data and results; and ensuring that results are made
internationally available as soon as practicable. Additional conditions
may be established by the coastal State with respect to a project
falling into a category of research activities over which the coastal
State has discretion to withhold consent pursuant to article 246.

If a State or competent international organization sponsoring research
in the EEZ or on the continental shelf of a coastal State fails to
comply with such conditions, or if the research is not being conducted
in accordance with the information initially supplied to the coastal
State, article 253 authorizes the coastal State to require suspension of
the research activities. If those carrying out the research do not
comply within a reasonable period of time, or if the non-compliance
constitutes a major change in the research, the coastal State may
require its cessation.

The High Seas and the Area. Article 87 expressly recognizes conduct of
marine scientific research as a freedom of the high seas. Articles 256
and 257 further clarify that marine scientific research may be conducted
freely by any State or competent international organization in the water
column beyond the limits of the EEZ, as well as in the Area, i.e., the
sea-bed and ocean floor, and the subsoil thereof, beyond the limits of
national jurisdiction. Under article 143, research in the Area is to be
carried out exclusively for peaceful purposes. (See discussion of
article 301 below.)

Research Installations and Equipment (Section 4, Articles 258-262)

The conditions applicable to marine scientific research set forth in the
Convention apply equally to the deployment and use of installations and
equipment to support such research (article 258). Such installations
and equipment do not possess the status of islands, though safety zones
of a reasonable breadth (not exceeding 500 meters) may be created around
them, consistent with the Convention. They may not be deployed in such
fashion as to constitute an obstacle to established international
shipping routes. They must bear identification markings indicating the
State of registry or the international organization to which they
belong, and have adequate internationally agreed warning signals
(articles 259-262).

Responsibility and Liability (Section 5, Article 263)

Pursuant to article 263(1), States and competent international
organizations shall be responsible for ensuring that marine scientific
research, whether undertaken by them or on their behalf, is conducted in
accordance with the Convention. Pursuant to article 263(2), States and
organizations shall be responsible and liable for any measures they take
in contravention of the Convention in respect of research by other
States, their natural or juridical persons or by competent international
organizations and shall provide compensation for damage resulting from
such measures. With respect to damage caused by pollution of the marine
environment arising out of marine scientific research undertaken by or
on the behalf of States and competent international organizations, such
States or organizations shall be liable pursuant to article 235
(discussed above in connection with Part XII of the Convention.)

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

The application of the dispute settlement provisions of the Convention
to marine scientific research is discussed below in the section on
dispute settlement.

ITEM 11:

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

The Convention establishes a dispute settlement system to promote
compliance with its provisions and ensure that disputes are settled by
peaceful means. The system applies to disputes between States and, with
respect to deep sea-bed mining, to disputes between States or miners and
the Authority. The dispute settlement procedures of the Convention are:

-- Flexible, in that Parties have options as to the appropriate means
and fora for resolution of their disputes;

-- Comprehensive, in that the bulk of the Convention's provisions can
be enforced through binding mechanisms; and

-- Accommodating of matters of vital national concern, in that they
exclude certain sensitive categories of disputes (e.g., disputes
involving EEZ fisheries management) from binding dispute settlement;
they also permit a State Party to elect to exclude other such categories
of disputes (e.g., disputes involving military activities) from binding
dispute settlement.

The dispute settlement system of the Convention advances the U.S. policy
objective of applying the rule of law to all uses of the oceans. As a
State Party, the United States could enforce its rights and preserve its
prerogatives through dispute settlement under the Convention, as well as
promote compliance with the Convention by other States Parties. At the
same time, the procedures would not require the United States to submit
to binding dispute settlement matters such as military activities or the
right to manage fishery resources within the U.S. EEZ.

General Provisions (Articles 279-285)

Section 1 contains general provisions concerning the settlement of
disputes under the Convention. Article 279 obligates the parties to a
dispute concerning the interpretation or application of the Convention
to settle the dispute by peaceful means in accordance with the United
Nations Charter. Articles 280 to 282 elaborate the right of States to
agree on alternative means for settling their disputes. Article 284
provides for optional conciliation in accordance with the procedure set
forth in Annex V, section 1, or any other conciliation procedure chosen
by the parties to the dispute.

Compulsory, Binding Dispute Settlement (Articles 286-296)

Section 2 addresses compulsory dispute settlement procedures entailing
binding decisions. Except as otherwise provided in section 3, if no
settlement has been reached under section 1, section 2 of Part XV
provides for disputes concerning the interpretation or application of
the Convention to be submitted, at the request of any party to the
dispute, to the court or tribunal having jurisdiction under this
section.

Section 2 (article 287(1)) identifies four potential fora for
compulsory, 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 signing, ratifying, or acceding 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
settlement of the dispute, it may be submitted only to arbitration in
accordance with Annex VII, unless the parties otherwise agree (article
287(5)). If a State Party has failed to announce its choice of forum,
it shall be deemed to have accepted arbitration in accordance with Annex
VII.

As stated in the Secretary of State's report to the President, it is
recommended that the United States make the following declaration:

The Government of the United States of America declares, in accordance
with article 287(1), that it chooses the following means for the
settlement of disputes concerning the interpretation or application of
the Convention:

(B) an arbitral tribunal constituted in accordance with Annex VII for
the settlement of disputes not covered by the declaration in (A) above.

Choice of forum does not affect the jurisdiction of the Sea-Bed Disputes
Chamber of the International Tribunal for the Law of the Sea, as
provided for in Part XI (see below).

Article 290 authorizes a competent court or tribunal, which considers
that prima facie it has jurisdiction, to prescribe appropriate
provisional measures to preserve the respective rights of the parties to
the dispute or to prevent serious harm to the marine environment,
pending the final decision. The term "marine environment," as used in
the Convention, includes "marine life," so that a competent court or
tribunal may prescribe provisional conservation measures for living
marine resources under this authority whether or not such measures are
necessary to protect the respective rights of the parties.

Article 292 provides specifically for expedited dispute settlement to
address allegations that a State Party has not complied with the
Convention's provisions for the prompt release of a vessel flying the
flag of another State Party and its crew.

Article 293 provides for a court or tribunal having jurisdiction under
section 2 to apply the Convention and other rules of international law
not incompatible with the Convention.

Any decision rendered by a court or tribunal having jurisdiction under
section 2 is final and is to be complied with by all the parties to the
dispute; however, the decision has no binding force except between the
parties and in respect of that particular dispute (article 296).

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

Section 3 provides for limitations on, and optional exceptions to, the
applicability of compulsory, binding dispute settlement under section 2.

Limitations. Disputes concerning the exercise by a coastal State of its
sovereign rights or jurisdiction are subject to compulsory, binding
dispute settlement under section 2 only in certain cases (article
297(1)). These cases involve allegations that:

-- A coastal State has acted in contravention of the provisions of the
Convention in regard to the freedoms and rights of navigation,
overflight or the laying of submarine cables and pipelines, or in regard
to other internationally lawful uses of the sea specified in article 58;

-- A State, in exercising such rights and freedoms, has violated the
Convention or certain laws and regulations adopted by a coastal State;
and

-- A coastal State has violated specified rules and standards for the
protection of the marine environment.

Disputes concerning marine scientific research fall within the scope of
compulsory, binding dispute settlement under section 2, with two
exceptions (article 297(2)). The first exception involves the exercise
by the coastal State of its explicit right or discretion to withhold
consent (e.g., with respect to research directly related to resources or
involving drilling). The second pertains to the coastal State's
decision to exercise its right to suspend or cancel a research project
for non-compliance with certain required conditions. There is
provision, however, for disputes falling within such exceptions to be
addressed through compulsory, nonbinding conciliation under Annex V,
section 2.

Under article 297(3), fisheries disputes are subject to compulsory,
binding dispute settlement under section 2, except that a coastal State
need not submit to such settlement any dispute relating to its sovereign
rights with respect to the living resources in its EEZ, or the exercise
thereof, including, for example, its discretionary powers for
determining the allowable catch. However, such disputes may, under
certain conditions, be referred to compulsory, nonbinding conciliation
under Annex V, section 2. Conciliation may be invoked if it is alleged
that a coastal State has:

-- Manifestly failed to comply with its obligations to ensure through
proper conservation and management measures that the maintenance of the
living resources in the exclusive economic zone is not seriously
endangered;

-- Arbitrarily refused to determine, at the request of another State,
the allowable catch and its capacity to harvest living resources with
respect to stocks which that other State is interested in fishing; or

-- Arbitrarily refused to allocate to any State, under articles 62, 69
and 70 and under terms and conditions established by the coastal State
consistent with this Convention, the whole or part of the surplus it has
declared to exist.

Optional Exceptions. Article 298 provides for a State to opt out of one
or more of the dispute settlement procedures in section 2 with respect
to one or more enumerated categories of disputes. These include:

-- Maritime boundary disputes (to which compulsory, nonbinding
conciliation may apply under certain conditions);

-- Disputes concerning military activities and certain law enforcement
activities; and

-- Disputes in respect of which the UN Security Council is exercising
the functions assigned to it by the United Nations Charter.

As stated in the Secretary of State's report to the President, it is
recommended that the United States invoke all three of these exceptions
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.

Particular Regime For Deep Sea-bed Mining

The Convention contains provisions that apply specifically to disputes
relating to deep sea-bed mining. Unlike other disputes arising under
the Convention, deep sea-bed mining disputes may be brought before the
Sea-Bed Disputes Chamber of the International Tribunal for the Law of
the Sea, established by article 14 and section 4 of Annex VI to the
Convention.

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

1) Between States Parties regarding the interpretation or application
of Part XI and its related annexes, as modified by the Agreement;

2) Between the Authority and States Parties regarding:
i) Acts or omissions of the Authority in contravention of the
Convention or rules and regulations adopted pursuant thereto,
ii) An allegation of acts by the Authority in excess of its
jurisdiction or a misuse its power, and
iii) Disapproval of a contract for exploration and exploitation
rights;

3) Between the Authority and mining companies regarding:
i) The refusal to approve a plan of work or legal issues arising
during the approval process, and
ii) The interpretation or application of a contract and activities
undertaken pursuant to an approved plan of work.

In the case of disputes regarding the interpretation or application of a
contract, or acts or omissions of a party to a contract, the mining
companies have standing to initiate proceedings and need not rely on the
sponsoring State. In addition, article 188 provides that such disputes
shall be submitted to commercial arbitration at the request of any party
to the dispute.

Article 189 provides that the Tribunal shall not substitute its
discretion for that of the Authority. It also provides that the
Tribunal shall not declare invalid any rules and regulations adopted by
the Authority, but shall confine itself to determinations of whether
their application in specific cases is consistent with the Convention or
with a contract, or whether the Authority has exceeded its jurisdiction
or has misused its power.

Arbitration Under Annex VII

Annex VII sets forth detailed rules concerning the procedure governing
arbitration under this Annex:

-- The list of potential arbitrators is maintained by the Secretary-
General of the United Nations; each Party may nominate up to four
arbitrators to appear on the list.

-- An arbitral panel generally consists of five members. Each party to
the dispute appoints one member; the other three members are appointed
by agreement between the parties. Annex VII provides a mechanism for
appointments, should the parties be unable to agree on members; in
general, the President of the International Tribunal for the Law of the
Sea makes the necessary appointments.

-- The arbitral tribunal determines its own procedure.
-- Decisions of the tribunal are to be by majority vote.
-- Arbitral awards are final and without appeal (unless otherwise
agreed) and are to be complied with by the parties to the dispute.

Special Arbitration Under Annex VIII

Annex VIII contains somewhat different rules concerning the procedure
governing arbitration of disputes concerning the interpretation or
application of 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:

-- States Parties may nominate two experts in each of these fields,
whose names shall appear on lists of experts to be established and
maintained.

-- A special arbitral panel generally consists of five members,
preferably appointed from the relevant list. Each party to the dispute
appoints two members; the other member is appointed by agreement between
the parties. Annex VIII provides a mechanism for appointments, should
the parties be unable to agree on a fifth member; in general, the
Secretary-General of the United Nations is to make the necessary
appointments.

-- The provisions for arbitration under Annex VII shall otherwise
apply.

-- In addition, the parties to a dispute may agree to request the
special arbitral tribunal to carry out an inquiry and establish the
facts giving rise to the dispute and, if the parties further agree, to
formulate recommendations which shall constitute a basis for review by
the parties.

ITEM 12:

OTHER MATTERS

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

Where the territorial seas, EEZs or continental shelves of States with
opposite or adjacent coasts overlap, the Convention provides rules for
the delimitation of those zones.

With respect to the territorial sea, delimitation is to be based on
equidistance (i.e., a median line), unless historic title or other
special circumstances call for a delimitation different from
equidistance (article 15).

With respect to the EEZ and the continental shelf, articles 74 and 83
provide that delimitation of the EEZ and the continental shelf,
respectively, are to be effected by agreement, on the basis of
international law, in order to achieve an equitable solution.

Pending agreement on delimitation of the EEZ or the continental shelf,
the States concerned are to make every effort to enter into provisional
arrangements of a practical nature and, during this transitional period,
not to jeopardize or hamper the reaching of the final agreement
(articles 74(3) and 83(3)). Such arrangements are without prejudice to
the final delimitation of the EEZ or the continental shelf (article
74(3)).

Where there is an agreement in force between the States concerned,
questions relating to the delimitation of the EEZ or the continental
shelf are to be determined in accordance with the provisions of that
agreement.

Implications for U.S. Maritime Boundaries. The United States has 28
maritime boundary situations with its neighbors. To date, 10 of them
have been negotiated or adjudicated in whole or in part.

U.S. maritime boundary positions are fully consistent with the rules
reflected in the Convention. These positions were determined through an
interagency process in the late 1970s, prior to the U.S. extension of
its maritime jurisdiction to 200 miles. As a result of that process,
the United States determined that equidistance was the appropriate
boundary in most cases, but that three situations required a boundary
other than the equidistant line: with Canada in the Gulf of
Maine/Georges Bank area; with the U.S.S.R. (now the Russian Federation)
in the Bering and Chukchi Seas and North Pacific Ocean; and with the
Bahamas north of the Straits of Florida. These positions were reflected
in the outer limit of the U.S. EEZ, published in the Federal Register
(November 4, 1976, March 7 and May 12, 1977, and January 11, 1978).

The Senate has given its advice and consent to ratification of boundary
treaties related to the following areas: U.S.-Mexico (regarding the
territorial sea boundary); U.S. (Puerto Rico and U.S. Virgin Islands)-
Venezuela; U.S. (American Samoa)-Cook Islands; U.S. (American Samoa)-New
Zealand (Tokelau); and U.S.-U.S.S.R. (now the Russian Federation). The
Senate has before it, for its advice and consent, treaties establishing
equidistant line boundaries with Cuba and Mexico. The Senate also has
before it two recently concluded equidistant line treaties with the
United Kingdom in respect of Puerto Rico and the U.S. Virgin Islands,
and Anguilla and the British Virgin Islands. (Pending entry into force,
the U.S.-Cuba boundary treaty is being applied provisionally pursuant to
its terms, extended through biannual exchanges of notes. The U.S.-
Mexico boundary is being applied through an interim executive agreement.
The U.S.-Russia treaty is being applied provisionally pending
ratification by Russia.)

With respect to the U.S.-Canada maritime boundary in the Gulf of Maine,
most of that boundary was determined through a 1984 award of a Chamber
of the International Court of Justice. Regarding the United States and
Japan, they have recorded an understanding that recognizes that the
respective outer limits of their maritime jurisdiction coincide and
constitute a line of delimitation.

In addition to the President's constitutional authority in this area,
Congress has authorized the Secretary of State to negotiate with foreign
States to establish the boundaries of the EEZ of the United States in
relation to any such State (16 U.S.C. $ 1822(d)) and called upon the
President to establish procedures for settling any outstanding
international boundary disputes regarding the outer continental shelf
(43 U.S.C. $ 1333(a)(2)(B)).

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

The Convention defines an enclosed or semi-enclosed sea as a "gulf,
basin or sea surrounded by two or more States and connected to another
sea or the ocean by a narrow outlet or consisting entirely or primarily
of the territorial seas and exclusive economic zones of two or more
coastal States" (article 122).

The Convention calls upon States bordering an enclosed or semi-enclosed
sea to cooperate in carrying out their duties under the Convention, but
gives such States no greater or lesser rights vis-a-vis third States.
The Convention does, however, specifically require them to endeavor to
coordinate with each other in the areas of management of living
resources, environmental protection and scientific research and to
invite, as appropriate, other interested States and international
organizations to cooperate with them in these undertakings (article
123).

These provisions do not place or authorize any additional restrictions
or limitations on navigation and overflight with respect to enclosed or
semi-enclosed seas beyond those that appear elsewhere in the Convention.

RIGHT OF ACCESS OF LAND-LOCKED STATES TO AND FROM THE SEA AND FREEDOM OF
TRANSIT (Part X, Articles 124-132)

Part X addresses the rights of access of land-locked States to and from
the sea. It draws from, and expands upon, article 3 of the High Seas
Convention. Part X also tracks quite closely the 1965 Convention on
Transit Trade of Land-locked States, 19 UST 7383, TIAS No. 6592, 597
UNTS 42.

Article 124 defines several terms applicable to this Part of the
Convention. In particular, a land-locked State is one which does not
have a sea coast, and a transit State is one that is situated between a
land-locked State and the sea, through whose territory traffic in
transit passes.

Article 125 gives land-locked States the right of access to and from the
sea. The remaining articles of Part X address the specific rights and
obligations of land-locked and transit States. Exact terms of transit
are to be agreed upon between the land-locked and transit States
concerned. The United States is neither. It does, however, have
interests in trade with land-locked States and in their economic
development. Those interests are furthered by Part X.

Worldwide, there are now 42 land-locked States:

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

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

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

__________________
*Former Yugoslav Republic of Macedonia.
__________________

South America (2): Bolivia, Paraguay.

OTHER RIGHTS OF LAND-LOCKED STATES AND GEOGRAPHICALLY DISADVANTAGED
STATES (Articles 69-71, 160-161, 254, 266, 269, 272)

Several articles in the Convention require that specific consideration
be given to land-locked and geographically disadvantaged States.
Article 70(2) defines a geographically disadvantaged State (GDS) as one
which either can claim no EEZ of its own, or one whose geographical
situation makes it dependent upon the exploitation of living resources
in the EEZs of other coastal States in its region or subregion. The
articles relating to access to fisheries are discussed above in
connection with living marine resources.

The Assembly of the Authority is to consider problems of a general
nature in connection with activities in the Area arising in particular
for developing States, particularly for land-locked States and
geographically disadvantaged States (article 160(1)(k)).

Article 254 provides for land-locked States and GDS to be given the
opportunity to participate in marine scientific research in areas off
neighboring coastal States. Articles 266, 269 and 272 further call upon
States, either directly or through competent international
organizations, to endeavor to promote the development of marine
scientific and technological capacity through programs of technical
cooperation with land-locked States and geographically disadvantaged
States.

ITEM 13:

DEVELOPMENT AND TRANSFER OF MARINE TECHNOLOGY (Part XIV, Articles 266-278)

Part XIV of the Convention is largely declaratory of policy and imposes few specific obligations. It will not compel any change in U.S. practices or policy. It encourages States to promote the development and transfer of marine technology, particularly in relation to achieving more widespread participation in and benefit from marine scientific research activities covered in Part XIII. Technology transfer regarding deep sea-bed mining was discussed above, except for articles 273-275, which are discussed below.

Article 266 urges States to cooperate in accordance with their capabilities in promoting development and transfer of marine science and technology on fair and reasonable terms and conditions, as well as to promote the marine scientific and technological capacity of States, particularly developing countries, which may need and request assistance in this field. In promoting such cooperation, States are to have due regard for the rights and duties of holders, suppliers and recipients of marine technology.

Article 268 lists basic objectives to be promoted by States, directly or through competent international organizations. These include the acquisition, evaluation and dissemination of marine technological knowledge and facilitation of access to data and information; the development of appropriate marine technology, as well as of the infrastructure to facilitate transfer of marine technology; and the development of human resources through training and education of developing country nationals. In that regard, the IMO has established the World Maritime University in Malmo, Sweden, and the International Maritime Law Institute in Malta.

Article 269 identifies measures to achieve these objectives, including the establishment of technical cooperation programs; promotion of favorable conditions for conclusion of agreements, contracts and other similar arrangements, under equitable and reasonable conditions; holding conferences, seminars and symposia; promotion of the exchange of scientists and experts; and undertaking projects and promotion of joint ventures and other forms of bilateral and multilateral cooperation.

International cooperation to promote development and transfer of marine technology should include use of existing programs (article 270); establishment of generally accepted guidelines, criteria and standards for the transfer of such technology on a bilateral basis or within the framework of international organizations (article 271); and coordination of the activities of competent international organizations (article 272).
Article 273 calls upon States to cooperate with competent international organizations and the Authority to encourage and facilitate transfer to developing countries and the Enterprise of skills and marine technology regarding activities in the Area (i.e., exploration and exploitation of sea-bed minerals). With further respect to activities in the Area, article 274 urges the Authority itself, subject to the rights and duties of holders, suppliers and recipients of marine technology, to provide training and employment opportunities to developing country nationals; to make available, as requested and particularly to developing countries, technical documentation on relevant technologies; and to facilitate technical assistance to developing countries in acquiring skills and know-how as well as hardware.

Article 275 encourages States to promote, particularly in developing coastal States, establishment of national marine scientific and technological research centers, as well as strengthening of existing centers, while article 276 emphasizes the establishment of regional marine scientific and technological centers, particularly in developing countries. The functions of such centers are to include training and education; management studies and studies on the health of the marine environment; organization of regional conferences, seminars and symposia; acquisition and processing of marine scientific and technological data and information, as well as dissemination of results of marine scientific and marine technological research; and compilation of information on specific technologies and study of national policies on transfer of marine technology (article 277).

Under Part XIII (marine scientific research), as well as Part XIV, competent international organizations are called upon to take all appropriate measures directly or in close cooperation to carry out their responsibilities under Part XIV (article 278).

ITEM 14:

DEFINITIONS (Part I, Article 1)

Various provisions of the Convention define key terms. Article 1(1) contains the definitions of five terms for purposes of the entire Convention: Area; Authority; activities in the Area; pollution of the marine environment; and dumping. The first three of these definitions relate to the regime for deep sea-bed mining and are discussed above. The next two definitions relate to marine environmental issues, and are also discussed above.

Article 1(2) contains a standard definition for the term "States Parties" and also makes clear that the term applies, mutatis mutandis, to certain other entities (such as the European Community) entitled to become party to the Convention under article 305, in accordance with the conditions relevant to each.

Certain terms are defined elsewhere in the Convention, but also for purposes of the entire Convention: archipelagic baselines (article 47); archipelagic sea lanes passage (article 53(3)); archipelagic State (article 46); archipelago (article 46); bay (article 10(2)); contiguous zone (article 33); continental shelf (article 76); enclosed or semi-enclosed sea (article 122); EEZ (article 55); innocent passage (article 19(2)); internal waters (article 8); land-locked State (article 124(1)(a)); low-tide elevation (article 13(1); means of transport (article 124(1)(d)); passage (article 18(1)); piracy (article 101); pirate ship or aircraft (article 103); territorial sea (article 2); transit passage (article 38(2)); transit State (article 124(1)(c)); unauthorized broadcasting (article 109); and warship (article 29).

Certain terms are given specific meanings for a particular Part or a given article of the Convention, particularly in relation to deep sea-bed mining. Neither the term "ship" nor the term "vessel" is defined in the Convention; the two are considered to be synonymous.

Few of these terms were defined in the Territorial Sea Convention, the Continental Shelf Convention, or the High Seas Convention. The definitions included in the LOS Convention thus represent an advance in the effort to make the law of the sea more precise and predictable.

item 15:

GENERAL PROVISIONS (Part XVI, Articles 300-304)
Part XVI of the Convention contains five "general provisions" to guide the interpretation and application of the Convention as a whole, or of specific parts of it.Good Faith and Abuse of Rights (Article 300)

This article restates existing customary law. The requirement of good faith reflects article 2(2) of the United Nations Charter and the fundamental rule pacta sunt servanda, reflected in article 26 of the Vienna Convention on the Law of Treaties.

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

Article 301 reaffirms that all States Parties, whether coastal or flag States, in exercising their rights and performing their duties under the Convention with respect to all parts of the sea, must comply with their duty under article 2(4) of the United Nations Charter to refrain from the threat or use of force against the territorial integrity or political independence of any States.

Other provisions of the Convention echo this requirement. Article 88 reserves the high seas for peaceful purposes, while articles 141 and 155(2) reserves the Area for peaceful purposes. Under articles 143(1), 147(2)(d), 240(a), 242(1) and 246(3), marine scientific research is required to be conducted for peaceful purposes.

None of these provisions creates new rights or obligations, imposes restraints upon military operations, or impairs the inherent right of self-defense, enshrined in article 51 of the United Nations Charter. More generally, military activities which are consistent with the principles of international law are not prohibited by these, or any other, provisions of the Convention.Disclosure of Information (Article 302)

Without prejudice to the use of the Convention's dispute settlement procedures, in fulfilling its obligations under the Convention, a State Party is not required to supply information the disclosure of which is contrary to the essential interests of its security.Archaeological and Historical Objects Found at Sea (Articles 33, 149 and 303)

Article 303 imposes a general duty on States to protect objects of an archaeological and historical nature found at sea and to cooperate for this purpose. This obligation was implemented by the Abandoned Shipwreck Act of 1987, 42 U.S.C. $$ 2101-2106, and implementing regulations 54 Fed. Reg. 13642 et seq.; the National Marine Sanctuary Act, 16 U.S.C. section 1431 et seq; the Archaeological Resources Protection Act, 16 U.S.C. $ 470aa-ll, and its uniform regulations 43 CFR Part 7, 36 CFR Part 296, 18 CFR Part 1312, 32 CFR Part 229; the National Historic Preservation Act, 16 U.S.C. $ 470, 36 CFR Part 800; the Antiquities Act of 1906, 16 U.S.C. $$ 431-433; and the National Register of Historic Places, 36 CFR Parts 60 & 63.

Coastal State competence to control the activities of foreign nationals and foreign flag ships in this regard is limited to internal waters, its territorial sea, and if it elects, to its contiguous zone (article 303(2)). The United States has not decided whether to extend its contiguous zone for this purpose.

Under article 149, all such objects found on the sea-bed beyond the limits of national jurisdiction must be preserved and disposed of for the benefit of mankind as a whole. Particular regard must be paid to the preferential rights of the State or country of origin, the State of cultural origin, or the State of historical or archaeological origin.

Article 303(3) clarifies that the Convention is not intended to affect the rights of identifiable owners, admiralty law, and the laws and practices concerning cultural exchanges. Article 303 is without prejudice to other international agreements and rules of international law regarding the protection of objects of an archaeological and historical nature (article 303(4)). For example, in 1989, the United States and France entered into an agreement for the protection and study of the wreck of the CSS Alabama, sunk by USS Kearsarge on June 19, 1864, in waters now forming part of the French territorial sea (TIAS No.
11687).

The term "objects of an archaeological and historical nature" is not
defined in the Convention. It is not intended to apply to modern
objects whatever their historical interest.

Responsibility and Liability For Damage (Article 304)

The many specific provisions of the Convention regarding State
responsibility and liability for damage (articles 31, 42(5), 106,
110(3), 139, 232, 235, 263) are without prejudice to existing rules and the development of further rules.

ITEM 16:

FINAL PROVISIONS (Part XVII, Articles 305-320)

The final provisions of the Convention contain a number of innovations in addition to the usual final clauses.

Signature (Article 305)

The Convention was open for signature for two years from the date of its adoption, December 10, 1982. By December 9, 1984, the Convention had been signed by 159 States and other entities entitled to sign it (Cook Islands, EEC, United Nations Council for Namibia and Niue). Along with the United States, 13 other States then in existence did not sign the Convention: Albania, Ecuador, Federal Republic of Germany, the Holy
See, Israel, Jordan, Kiribati, Peru, San Marino, Syria, Turkey, the
United Kingdom, and Venezuela. The Trust Territory of the Pacific
Islands and the West Indies Associated States also did not sign the
Convention, although they were eligible to do so.

Ratification and Accession (Articles 306 and 307)

The Convention makes signature subject to ratification. As of September 8, 1994, 65 States had deposited their instruments of ratification,
accession or succession to the Convention.

Entry Into Force (Article 308)

Pursuant to article 308, the Convention enters into force 12 months
after the deposit of the 60th instrument of ratification or accession. That instrument was deposited on November 16, 1993; accordingly, the
Convention will enter into force on November 16, 1994.

Thereafter, the Convention will enter into force for a State ratifying or acceding to it 30 days following deposit of its instrument of ratification or accession.

(The entry into force of the Agreement, and its effect in revising Part XI, is discussed above in the section relating to deep sea-bed mining.)

Reservations, Exceptions, Declarations and Statements (Articles 309 and 310)

Article 309 prohibits reservations and exceptions to the Convention,
except where expressly permitted by other articles. No other article permits reservations; only article 298 permits exceptions and allows a Party to exclude certain categories of disputes from compulsory dispute settlement.

Article 310 provides that a State may make declarations or statements when signing, ratifying or acceding to the Convention, provided they are not reservations, i.e., that they do not purport to exclude or modify the legal effect of the provisions of the Convention in their
application to that State.

Relation to Other International Agreements (Article 311)

The Convention considers the effect of the Convention on earlier
agreements, and of later agreements on the Convention, where the same State is party to both, in a manner that is generally consistent with the Vienna Convention on the Law of Treaties.

Agreements, existing or future, that are expressly permitted or
preserved by the Convention are not affected by the Convention.
Examples of such agreements would include maritime boundary treaties
between States with opposite or adjacent coasts.

Amendment (Articles 312-316)

The Convention creates distinct regimes for amendments relating to
activities in the Area (i.e., deep sea-bed mining activities) and to all other parts of the Convention.

With respect to amendments not relating to activities in the Area,
amendments to the Convention may be adopted in either of two ways.
First, beginning in November 2004, the States Parties may convene a
conference, if more than half the States Parties agree to do so, for the purpose of considering and adopting amendments to the Convention
(article 312).

Second, proposed amendments that are circulated at any time after entry into force of the Convention shall be considered adopted if no State objects to the amendment, or to use of the simplified procedure, within 12 months of circulation of the amendment (article 313).

In either case, amendments are subject to ratification. They enter into force only for States ratifying them, after they have been ratified by two-thirds of, but not fewer than 60, States Parties (article 316(1)).

With respect to amendments relating to activities in the Area (i.e.,
deep sea-bed mining), amendments to the deep sea-bed mining regime can only be adopted upon the approval of the Council and Assembly of the Authority. The Council, on which the United States is guaranteed a seat in perpetuity (provided we are party), can only adopt such amendments by consensus (article 161(8)(d)).

Because the sea-bed mining regime creates an institutional structure
that can operate only on the basis of one set of rules applicable to
all, amendments to this regime enter into force for all States Parties one year after three-fourths of the States Parties ratify.

As noted above, the Agreement abolishes the Review Conference.

Denunciation (Withdrawal) (Article 317)

A State Party may denounce the Convention on one year's notice. Article 317 also addresses certain consequences of denunciation.

Status of Annexes (Article 318)

The Annexes form an integral part of the Convention.

Depositary (Article 319)

The Secretary-General of the United Nations is the depositary and is
assigned the normal functions of a Depositary, as well as those
consequential to particular provisions in the Convention.

Authentic Texts (Article 320)

The texts in the six official languages of the United Nations are
equally authentic.

(###)

STATUS OF THE CONVENTION AND AGREEMENT

As of February 23, 1995, there are 73 parties to the Law of the Sea
Convention, 12 States (of the 73 States and entities to have signed the Agreement) have consented to be bound by the Agreement in Implementation of Part XI, and 116 States and entities have agreed to apply provisionally the Agreement.

Parties to the Convention
Angola, Antigua and Barbuda, Australia, The Bahamas, Bahrain, Barbados, Belize, Bosnia-Herzegovina, Botswana, Brazil, Cameroon, Cape Verde, Comoros, Cook Islands, Costa Rica, Cote d'Ivoire, Cuba, Cyprus, Djibouti, Dominica, Egypt, Federal Republic of Yugoslavia**, Fiji, The Gambia, Germany, Ghana, Grenada, Guinea, Guinea-Bissau, Guyana, Honduras, Iceland, Indonesia, Iraq, Italy, Jamaica, Kenya, Kuwait, Lebanon, The Former Yugoslav Republic of Macedonia, Mali, Malta, Marshall Islands, Mauritius, Mexico, Federated States of Micronesia, Namibia, Nigeria, Oman, Paraguay, Philippines, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Sao Tome and Principe, Senegal, Seychelles, Sierra Leone, Singapore, Slovenia, Somalia, Sri Lanka, Sudan, Tanzania, Togo, Trinidad and Tobago, Tunisia, Uganda, Uruguay, Vietnam, Yemen, Zaire, Zambia, Zimbabwe.

________________
**Serbia and Montenegro have asserted the formation of a joint
independent state, but this entity has not been recognized as a state by the United States.
________________

In addition, the following countries have informally indicated their
intention to become party to the Convention once their internal
procedures are completed:
Austria, Belgium, Canada, Chile, China, Denmark, Finland, France,
Greece, India, Ireland, Japan, Republic of Korea, Luxembourg,
Netherlands, New Zealand, Panama, Portugal, South Africa, Spain, Sweden, Switzerland, Ukraine, United Kingdom.

Agreement in Implementation of Part XI

The following States have consented to be bound by the Agreement:
Australia, Belize, Cook Islands, Germany, Italy, Kenya, Lebanon, The
Former Yugoslav Republic of Macedonia, Mauritius, Seychelles, Sierra
Leone, Singapore.

The following States and entity have signed the Agreement:
Algeria, Argentina, Australia, Austria, The Bahamas, Barbados, Belgium, Brazil, Burkina Faso, Canada, Cape Verde, China, Cote d'Ivoire, Cyprus, Czech Republic, Denmark, European Community, Fiji, Finland, France, Germany, Greece, Grenada, Guinea, Iceland, India, Indonesia, Ireland, Italy, Jamaica, Japan, Republic of Korea, Laos, Luxembourg, Malaysia, Maldives, Malta, Mauritania, Federated States of Micronesia, Monaco, Mongolia, Morocco, Namibia, Netherlands, New Zealand, Nigeria, Pakistan, Paraguay, Philippines, Poland, Portugal, Senegal, Seychelles, Slovakia, South Africa, Spain, Sri Lanka, Sudan, Swaziland, Sweden, Switzerland, Tanzania, Togo, Trinidad and Tobago, Uganda, United Kingdom, United
States, Uruguay, Vanuatu, Zambia, Zimbabwe.

The following States and entity have agreed to apply the Agreement
provisionally:

Afghanistan, Albania, Algeria, Andorra, Argentina, Armenia, Australia, Austria, The Bahamas, Bahrain, Bangladesh, Barbados, Belarus, Belgium, Belize, Benin, Bhutan, Bolivia, Botswana, Brunei, Bulgaria, Burkina Faso, Burma, Burundi, Cambodia, Canada, Cape Verde, Chile, China, Congo, Cote d'Ivoire, Cuba, Czech Republic, Egypt, Eritrea, Estonia, Ethiopia, European Community, Fiji, Finland, France, Gabon, Germany, Ghana, Greece, Grenada, Guinea, Guyana, Honduras, Iceland, India, Indonesia, Iraq, Italy, Jamaica, Japan, Kenya, Republic of Korea, Kuwait, Laos, Libya, Liechtenstein, Luxembourg, Madagascar, Malaysia, Maldives, Malta, Marshall Islands, Mauritania, Mauritius, Federated States of Micronesia, Moldova, Monaco, Mongolia, Mozambique, Namibia, Nepal, Netherlands, New Zealand, Nigeria, Norway, Oman, Pakistan, Papua New Guinea, Paraguay, Philippines, Poland, Qatar, Russia, Senegal, Seychelles, Singapore, Slovakia, South Africa, Sri Lanka, Sudan, Suriname, Swaziland, Switzerland, Tanzania, Togo, Trinidad and Tobago, Tunisia, Uganda, Ukraine, United Arab Emirates, United Kingdom, United States, Vanuatu, Vietnam, Western Samoa, Zambia, Zimbabwe.
(###)

[END OF DISPATCH VOL 6, SUPPLEMENT NO. 1]

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