An ASIL Brief on the
UNITED NATIONS CONVENTION ON THE LAW OF THE SEA
The following is an outline of the major points regarding the United Nations Convention on the Law of the Sea currently pending before the U.S. Senate.
The United Nations Convention on the Law of the Sea was adopted in 1982 and came into force in 1994. The Convention did not achieve widespread support, particularly among industrialized countries, until the adoption in 1994 of the Agreement on Implementation of Part XI of the Convention. As of July 1, 2007, there are 155 members of the Convention.
Defining Maritime Zones and Boundaries
The Convention divides the seas into maritime zones and establishes rights, obligations and control for each of the respective zones. These zones are: internal waters; the territorial sea; the contiguous zone; exclusive economic zone; the continental shelf; and the high seas. A feature of the Convention is the formalization of law around a new “Exclusive Economic Zone” (“EEZ”). The EEZ reaches from the 12-mile outer limit of the territorial sea to 200 nautical miles. In the EEZ, resource control lies with the coastal state, however other states retain the traditional “freedom of the high seas.”
Safeguarding Security, the Environment, and Resources
The Convention creates legally secured navigation and overflight rights, including freedom of navigation on the high seas and in the EEZ, innocent passage through territorial waters, and navigation and overflight rights through straights and archipelagoes. The Convention also establishes global standards and obligations to protect the marine environment, sustain fishing stocks for maximum sustainable yield, and prevent pollution from land, sea, and air sources.
Creating Three Principal Institutions
The Convention creates three institutions:
The International Tribunal for the Law of the Sea, based in Hamburg, Germany, as a possible means for the settlement of territorial and natural resource disputes related to the interpretation and application of the Convention. The Tribunal does not, however, have exclusive jurisdiction over such disputes. Parties may also opt for international arbitration or adjudication by the International Court of Justice.
The Commission on the Limits of the Continental Shelf, based in New York City, to make recommendations to coastal States on matters related to the international recognition of the outer limits of their continental shelf.
The International Seabed Authority, based in Kingston, Jamaica, to administer the mineral resources of the ocean floor and subsoil beyond the limits of national jurisdiction. If the U.S. becomes a party to the Convention, it is guaranteed a seat in perpetuity on the Council of the International Seabed Authority and the ability to block the adoption or amendment of rules, regulations, and procedures.
Previous U.S. Status
The Law of the Sea Convention as adopted in 1982 was judged to be deficient by the U.S. with regard to the provisions governing the development of the minerals of the deep ocean floor. The 1994 Agreement on Implementation of Part XI of the Convention was designed to address U.S. and other state objections related to the International Seabed Authority and seabed mining. The U.S. has respected the non-seabed provisions on ocean use since 1983 and treated those provisions as customary international law. Presidents Bill Clinton and George W. Bush have urged the Senate to give its advice and consent. In 2004 the Senate Foreign Relations Committee gave its unanimous endorsement to the Resolution of Advice and Consent, but the Resolution was not brought to the Senate floor for a vote before the end of the 108th Congress.
Current Status
The Law of the Sea Convention is currently awaiting the Senate Foreign Relations Committee to hold hearings and recommend a resolution of advice and consent to the full Senate, which must then move the Resolution to the floor. There must be a two-thirds majority vote for the Resolution to pass and allow the President to accede to the Convention.
ASIL member experts available to discuss the Law of the Sea Convention:
Bernard H. Oxman, Professor of Law and Director of the Ocean and Coastal Law Program at the University of Miami School of Law; Vice President of ASIL (bhoxman@law.miami.edu or (305) 284-2293)
David D. Caron, Professor of International Law at the University of California- Berkeley; Co-Director of the Law of the Sea Institute; Co-Chair ASIL-West (ddcaron@law.berkeley.edu or (510) 642-7249)
John Norton Moore, Professor of Law at the University of Virginia School of Law; former US Ambassador to the Law of the Sea negotiations (jnm9s@virginia.edu or (434) 924-7441)
The above information is provided as a service of the American Society of International Law (ASIL), a non-profit, non-partisan educational membership organization. The purpose of ASIL Briefs is to provide concise, accurate information on international law topics. The Society does not take positions on public policy matters, including the one covered in this Brief. Educational and news media copying is permitted with due acknowledgement.
For more information or to talk with an ASIL expert, contact Sheila Ward, Director of Communications and Member Relations, at sward@asil.org or 202.939.6018 (desk).
