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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 et seq., 
and the Comprehensive Environmental Response Compensation and 
Liability Act, 42 U.S.C.  9601 et seq.

     Pollution from or through the atmosphere (article 212)

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

Enforcement (articles 213-222)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Safeguards (articles 223-233)

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

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

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

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

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

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

Ice-Covered Areas (article 234)

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

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

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

Responsibility and liability (article 235)

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

Sovereign immunity (article 236)

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

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

Obligations under other conventions on the protection and 
preservation of the marine environment (article 237)

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


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

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

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

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

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

Territorial sea and EEZ

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Continental shelf

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

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

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

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

High seas

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

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

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

--  other treaty obligations of the State concerned;

--  the rights and duties as well as the interests of coastal 
States provided for, inter alia, in article 63(2) and articles 
64-67; and

--  basic obligations to cooperate in the conservation and 
management of high seas living resources set forth in articles 
117-119.

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

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

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

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

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

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

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

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

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

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

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

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

"Straddling" stocks and highly migratory species

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Dispute settlement

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

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

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

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


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

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

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

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

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

The concept of the continental shelf

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

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

Differing interpretations and application of concepts 
underlying the Truman Proclamation led to international efforts 
to develop a more precise definition of the continental shelf.  
The first result of these efforts was the Continental Shelf 
Convention that emerged from the First United Nations 
Conference on the Law of the Sea in 1958.  It provides that the 
continental shelf refers to:

     the seabed and subsoil of the submarine areas adjacent to 
the coast but outside the area of the territorial sea, to a 
depth of 200 meters or, beyond that limit, to where the depth 
of the superjacent waters admits of the exploitation of the 
natural resources of the said areas.

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

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

Definition of the continental shelf

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

The continental shelf of a coastal State comprises the sea-bed 
and subsoil of the submarine areas that extend beyond its 
territorial sea throughout the natural prolongation of its land 
territory to the outer edge of the continental margin, or to a 
distance of 200 nautical miles from the baselines from which 
the breadth of the territorial sea is measured where the outer 
edge of the continental margin does not extend up to that 
distance.

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

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

Rights and duties

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

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

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

Limits of the continental shelf beyond 200 miles (article 76)

     Definition

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

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

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

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

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

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

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

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

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

     Delineation

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

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

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

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

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

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

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

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

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

     Revenue sharing (article 82)

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

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

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

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

     Statement of Understanding concerning a specific method to 
be used in establishing the outer edge of the continental 
margin (Annex II to the Final Act)

Annex II to the Final Act contains the Statement of 
Understanding adopted by the Third United Nations Conference on 
the Law of the Sea that addresses the unusual geographic 
circumstances involved in determining the outer edge of the 
continental margin of Sri Lanka and India in the southern part 
of the Bay of Bengal.

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

     Domestic Legislation

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


                            DEEP SEABED MINING
       (Part XI and Agreement on Implementation of Part XI;
                            Annexes III and IV)

Part XI and Annexes III and IV to the Convention (Part XI) and 
the Agreement Relating to the Implementation of Part XI of the 
United Nations Convention on the Law of the Sea of 10 December 
1982 (Agreement) establish the legal regime governing 
exploration and exploitation of mineral resources of the deep 
seabed beyond coastal State jurisdiction (seabed mining 
regime).

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

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

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

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

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

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

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

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

The seabed mining regime

     Scope of the regime

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

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

     Common heritage of mankind

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

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

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

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

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

Administration of the regime

     International Seabed Authority

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

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

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

     Assembly

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

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

     Council

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

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

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

     Legal and Technical Commission

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

     Economic Planning Commission

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

     Finance Committee

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

The functional - evolutionary approach

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

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

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

Acquisition of mining rights

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

     Prospecting

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

     Exploration and exploitation

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

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

     Protection of the marine environment

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

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

Section 1(7) of the Annex to the Agreement strengthens these 
requirements by requiring that all applications for approval of 
plans of work shall be accompanied by an assessment of the 
potential environmental impacts of the proposed activities and 
a program for oceanographic and baseline environmental studies.  
Section 1(5)(g) of the Annex to the Agreement also requires the 
Authority to adopt rules, regulations and procedures on marine 
environmental protection as part of its early functions prior 
to the approval of the first plan of work for exploitation.

     Application fees

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

     Approval of applications

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

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

     Security of tenure - priority of right

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

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

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

     Applications by pioneer investors

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

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

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

     Reserved areas

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

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

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

     Compliance

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

Decision-making

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

     U.S. seat

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

     Decisions by the Council

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

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

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

     Composition of the Council

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

     Rulemaking

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

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

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

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

     Review conference

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

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

Economic and commercial policy concerns

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

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

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

     Production limitations

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

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

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

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

     Economic assistance

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

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

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

     Financial terms of contracts

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

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

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

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

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

     Technology transfer

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

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

     The Enterprise

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

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

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

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

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

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

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

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

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

     Budget of the Authority

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

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

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

Privileges and immunities

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

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

The Agreement and its relationship to the Convention

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

United States deep seabed mining legislation

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

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

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

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

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

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

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

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

In addition to these basic elements, Subchapter II of the 
DSHMRA sets forth criteria that would need to be met for an 
international regime to be acceptable to the United States, 
namely, assured and non-discriminatory access for U.S. 
citizens, under reasonable terms and conditions, to deep seabed 
resources, and assured continuity in mining activities 
undertaken by U.S. citizens prior to entry into force of the 
agreement under terms, conditions, and restrictions that do not 
impose significant new economic burdens that have the effect of 
preventing continuation of operations on a viable economic 
basis (30 U.S.C.  1401(1)).  The DSHMRA also recognizes that a 
treaty must be judged by the totality of its provisions (30 
U.S.C.  1441(2)).

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

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

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

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


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

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

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

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

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

General provisions (section 1, articles 238-241)

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

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

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

International cooperation (section 2, articles 242-244)

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

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

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

Conduct and promotion of marine scientific research (section 3, 
articles 245-257)

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

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

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

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

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

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

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

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

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

Research installations and equipment (section 4, articles 258-
262)

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

Responsibility and liability (section 5, article 263)

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

Settlement of disputes (section 6, articles 264-265)

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


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

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

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

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

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

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

General provisions (articles 279-285)

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

Compulsory, binding dispute settlement (articles 286-296)

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

Section 2 (article 287(1)) identifies four potential fora for 
compulsory, binding dispute settlement:

--  the International Tribunal for the Law of the Sea 
constituted under Annex VI;

--  the International Court of Justice;

--  an arbitral tribunal constituted in accordance with Annex 
VII; and

--  a special arbitral tribunal constituted in accordance with 
Annex VIII for specified categories of disputes.

A State, when signing, ratifying, or acceding to the 
Convention, or at any time thereafter, is able to choose, by 
written declaration, one or more of these means for the 
settlement of disputes under the Convention.

If the parties to a dispute have not accepted the same 
procedure for settlement of the dispute, it may be submitted 
only to arbitration in accordance with Annex VII, unless the 
parties otherwise agree (article 287(5)).  If a State Party has 
failed to announce its choice of forum, it shall be deemed to 
have accepted arbitration in accordance with Annex VII.

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

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

(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.

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

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

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

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

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

Limitations on compulsory, binding dispute settlement (articles 
297-299)

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

     Limitations

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

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

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

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

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

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

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

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

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

     Optional exceptions

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

--  maritime boundary disputes (to which compulsory, non-
binding conciliation may apply under certain conditions);

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

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

As stated in the Secretary of State's report to the President, 
it is recommended that the United States invoke all three of 
these exceptions and, thus, that the United States make the 
following declaration:

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

Particular regime for deep seabed mining

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

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

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

2)  between the Authority and States Parties regarding:

     i)  acts or omissions of the Authority in contravention of 
the Convention or rules and regulations adopted pursuant 
thereto,

     ii)  an allegation of acts by the Authority in excess of 
its jurisdiction or a misuse its power, and

     iii)  disapproval of a contract for exploration and 
exploitation rights,

3)  between the Authority and mining companies regarding:

     i)  the refusal to approve a plan of work or legal issues 
arising during the approval process, and

     ii)  the interpretation or application of a contract and 
activities undertaken pursuant to an approved plan of work.

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

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

Arbitration under Annex VII

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

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

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

--  The arbitral tribunal determines its own procedure.

--  Decisions of the tribunal are to be by majority vote.

--  Arbitral awards are final and without appeal (unless 
otherwise agreed) and are to be complied with by the parties to 
the dispute.

Special Arbitration under Annex VIII

Annex VIII contains somewhat different rules concerning the 
procedure governing arbitration of disputes concerning the 
interpretation or application of articles of the Convention 
relating to (1) fisheries; (2) protection and preservation of 
the marine environment; (3) marine scientific research; and (4) 
navigation, including pollution from vessels and by dumping:

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

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

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

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


                               OTHER MATTERS

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

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

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

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

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

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

     Implications for U.S. Maritime Boundaries

The United States has twenty-eight maritime boundary situations 
with its neighbors.  To date, ten of them have been negotiated 
or adjudicated in whole or in part.

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

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

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

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


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

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

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

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


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

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

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

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

Worldwide, there are now 42 land-locked States:

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

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

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

South America (2) :     Bolivia       Paraguay

----------------
*Former Yugoslav Republic of Macedonia
----------------


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

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

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

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


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

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

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

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

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

International cooperation to promote development and transfer 
of marine technology should include use of existing programs 
(article 270); establishment of generally accepted guidelines, 
criteria and standards for the transfer of such technology on a 
bilateral basis or within the framework of international 
organizations (article 271); and coordination of the activities 
of competent international organizations (article 272).

Article 273 calls upon States to cooperate with competent 
international organizations and the Authority to encourage and 
facilitate transfer to developing countries and the Enterprise 
of skills and marine technology regarding activities in the 
Area (i.e., exploration and exploitation of seabed minerals).  
With further respect to activities in the Area, article 274 
urges the Authority itself, subject to the rights and duties of 
holders, suppliers and recipients of marine technology, to 
provide training and employment opportunities to developing 
country nationals; to make available, as requested and 
particularly to developing countries, technical documentation 
on relevant technologies; and to facilitate technical 
assistance to developing countries in acquiring skills and 
know-how as well as of hardware.

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

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


                              DEFINITIONS
                         (Part I, article 1)

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

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

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

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

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


                          GENERAL PROVISIONS
                     (Part XVI, articles 300-304)

Part XVI of the Convention contains five "general provisions" 
to guide the interpretation and application of the Convention 
as a whole, or of specific parts of it.

Good faith and abuse of rights (article 300)

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

Peaceful uses of the seas (articles 88, 141, 143(1), 147(2)(d), 
155(2), 240(a), 242(1), 246(3), 301)

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

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

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

Disclosure of information (article 302)

Without prejudice to the use of the Convention's dispute 
settlement procedures, in fulfilling its obligations under the 
Convention, a State Party is not required to supply information 
the disclosure of which is contrary to the essential interests 
of its security.

Archaeological and historical objects found at sea (articles 
33, 149 and 303)

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

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

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

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

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

Responsibility and liability for damage (article 304)

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


                         FINAL PROVISIONS
                  (Part XVII, articles 305-320)

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

Signature (article 305)

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

Ratification and accession (articles 306 and 307)

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

Entry into force (article 308)

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

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

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

Reservations, exceptions, declarations and statements (articles 
309 and 310)

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

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

Relation to other international agreements (article 311)

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

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

Amendment (articles 312-316)

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

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

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

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

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

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

As noted above, the Agreement abolishes the Review Conference.

Denunciation (withdrawal) (article 317)

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

Status of Annexes (article 318)

The Annexes form an integral part of the Convention.

Depositary (article 319)

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

Authentic texts (article 320)

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