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U.S. DEPARTMENT OF STATE
LAW OF THE SEA
OCTOBER 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 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.
The White House, October 6, 1994.
(###)
Department of State,
Washington,
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
U.S.T. 1606, T.I.A.S. No. 5639, 516 U.N.T.S. 205 (entered into
force September 10, 1964); the Convention on the High Seas, 13
U.S.T. 2312, T.I.A.S. No. 5200, 450 U.N.T.S. 82 (entered into
force September 30, 1962); Convention on the Continental Shelf,
15 U.S.T. 471, T.I.A.S. No. 5578, 499 U.N.T.S. 311 (entered
into force June 10, 1964); and the Convention on Fishing and
Conservation of Living Resources of the High Seas, 17 U.S.T.
138, T.I.A.S. No. 5969, 559 U.N.T.S. 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.
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 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.
Respectfully submitted,
Warren Christopher
(###)
Commentary
The 1982 United Nations Convention
on the Law of the Sea
and
The Agreement on Implementation of Part XI
Contents Page
Introduction 1
Maritime Zones 1
Baselines 6
Bays and other Features 10
Navigation and Overflight 12
Internal Waters 13
Territorial Sea 14
Straights Used for International Navigation 18
Archipelagic States 22
The Contiguous Zone 25
Exclusive Economic Zone 25
High Seas 28
Marine Environment 34
Living Marine Resources 46
Continental Shelf 59
Deep Seabed Mining 67
Marine Scientific Research 90
Dispute Settlement 95
Other Matters 102
Maritime Boundary Delimitation 102
Enclosed or Semi-Enclosed Seas 103
Rights of Access of Land-Locked States 104
to and from the Sea and Freedom of Transit
Other Rights of Land-Locked States and
Geographically Disadvantaged States 106
Development and Transfer of Marine Technology 106
Definitions 108
General Provisions 109
Final Provisions 111
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 seabed 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;
-- nonliving resources, including those of the continental
shelf and the deep seabed 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.
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 seabed 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 seabed beyond national jurisdiction, called the Area in the
Convention, comprises the seabed 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 seabed 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 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 than 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 exclusive zone. 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 seabed 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 seabed 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 Seabed Beyond National Jurisdiction
The Convention defines as the Area the seabed 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 seabed 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.
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.
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 semicircle 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.
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
per cent 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 noncommercial 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 noncommercial 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 international 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
international 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);
(c) other rights and duties provided for in the Convention.
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 extraordinary 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, increases the authority of the coastal State on
its continental shelf over the location of pipelines and with
respect to pollution therefrom.
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,
seabed 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 seabed mining activity are discussed below in
connection with the deep seabed 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 seabed 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
seabed activities be no less effective than international rules
and standards. Although there are many potential seabed
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 Seabed Mining (Activities
in the Area) (article 209)
International rules and national legislation relating to
pollution from deep seabed mining have yet to be developed. As
discussed in the section of this Commentary on deep seabed
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 Seabed 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