The Law of the Sea Convention and U.S. Policy

Publication Date: August 2005

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Environment

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Abstract:

On October 7, 1994, President Clinton transmitted to the Senate the 1982 United Nations Convention on the Law of the Sea and the 1994 Agreement relating to the Implementation of Part XI of the United Nations Convention. The package was referred to the Senate Committee on Foreign Relations. On November 16, 1994, the U.N. Law of the Sea Convention entered into force but without accession by the United States. The 1994 Agreement entered into force on July 28, 1996, again without U.S. ratification.

The United States had provisional membership in the International Seabed Authority (ISA) and its organs and bodies through November 16, 1998. The opportunity for provisional membership, providing time for adherence to the convention and agreement, ended on November 16. Since the Senate had not given its advice and consent to U.S. adherence, the President could not bring those documents into force for the United States. Since November 16, 1998, the United States has observer status at the ISA.

The major part of the 1982 Law of the Sea Convention had been supported by U.S. Administrations, beginning with President Reagan, as fulfilling U.S. interests in having a comprehensive legal framework relating to competing uses of the world's oceans. However, the United States and many industrialized countries found some of the provisions relating to deep seabed mining in Part XI and Annexes III and IV of the Convention contrary to their interests and would not sign or act to ratify the Convention. Among the unacceptable elements were a decision-making process in the ISA Council and Assembly that would not give the United States or other Western industrialized countries influence commensurate with their interests; "Review Conference" provisions that would allow Convention amendments to enter into force without express U.S. approval; stipulations relating to mandatory transfer of private technology; provisions that would deter rather than promote future development of deep seabed mineral resources by incorporating economic principles inconsistent with free market philosophy; and the absence of assured access to future deep seabed mineral resources. The Clinton Administration maintained that the provisions of the 1994 Agreement and Annex correct the objectionable elements in the Convention on deep seabed issues.

A number of questions face the Senate as it considers the Convention/Agreement package. Does the Agreement sufficiently resolve opposing concerns expressed above about the deep seabed mining provisions? Are the compulsory dispute settlement provisions and the U.S. declaration acceptable to the Senate? What is the impact of U.S. adherence on current U.S. statutes? What changes must be made by legislation? What precedent does U.S. acceptance of the Convention/Agreement definition of the common heritage of mankind concept establish? Were the provisional application procedures used for the 1994 Agreement a good or bad precedent for the U.S. treaty process? What is the nature of U.S. commitments undertaken in decisions of the ISA Council? Should Congress have a role and under what circumstances? What authority should Congress exert over the expenses of another international organization (the ISA)?