69–115 

110TH CONGRESS EXEC. REPT. " ! SENATE 1st Session 110–9 

CONVENTION ON THE LAW OF THE SEA 

DECEMBER 19, 2007.—Ordered to be printed 

Mr. BIDEN, from the Committee on Foreign Relations, 

submitted the following 

R E P O R T 

together with 

MINORITY VIEWS 

[To accompany Treaty Doc. 103–39] 

The Committee on Foreign Relations, to which was referred 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 on the 

United Nations Convention on the Law of the Sea, with Annex, 

adopted at New York on July 28, 1994 and signed by the United 

States on July 29, 1994 (the ‘‘1994 Agreement’’) (Treaty Doc. 103– 

39), having considered the same, reports favorably thereon with 

declarations, understandings, and conditions as indicated in the 

resolution of advice and consent, and recommends that the Senate 

give its advice and consent to accession to the Convention and ratification of the 1994 Agreement, as set forth in this report and the 

accompanying resolution of advice and consent. 

CONTENTS 

Page 

I. Purpose ........................................................................................................... 2 

II. Background .................................................................................................... 2 

III. Major Provisions ............................................................................................ 3 

IV. Entry Into Force and Denunciation ............................................................. 8 

V. Implementing Legislation ............................................................................. 8 

VI. Committee Action .......................................................................................... 8 

VII. Committee Recommendation and Comments .............................................. 9 

VIII. Text of Resolution of Advice and Consent to Ratification .......................... 19 

IX. Minority Views ............................................................................................... 24 

X. Annex—Letters From Other Senate Committees ....................................... 29 

2 

I. PURPOSE

The Convention, together with the related 1994 Agreement, establishes a comprehensive set of rules governing the uses of the 

world’s oceans, including the airspace above and the seabed and 

subsoil below. It divides the seas into maritime zones and establishes rights, obligations and jurisdiction over each zone that carefully balance the interests of States in controlling activities and resources off their own coasts and the interests of all States in protecting the freedom to use the oceans without undue interference. 

Among the central issues addressed by the Convention and 1994 

Agreement are rights and obligations related to navigation and 

overflight of the oceans, exploitation and conservation of oceanbased resources, protection of the marine environment, and marine 

scientific research. 

II. BACKGROUND

President Richard M. Nixon, in a statement on oceans policy 

issued on May 23, 1970, first proposed the concept of a treaty that 

would set forth a legal framework for the oceans. Negotiations on 

the Law of the Sea Convention were launched a little over three 

years later and occupied a nine-year span between December 1973 

and December 1982, when the final text was adopted. The impetus 

for the Convention grew out of two primary international concerns. 

First, several coastal and naval States, including the United 

States, were concerned that the rapidly proliferating number of expansive claims regarding ocean space would restrict fundamental 

freedom of navigation rights. Second, a number of developing countries wanted to guarantee access to resources in the area beyond 

national jurisdiction, while national and multinational corporations 

wanted an international Convention that would provide legal certainty to companies interested in deep seabed mining. 

The United States and other industrialized countries supported 

the treaty that resulted in 1982 with the exception of the provisions that related to mining of resources from the seabed, ocean 

floor and subsoil thereof, beyond the limits of national jurisdiction. 

In 1983, President Ronald Reagan issued a statement on Oceans 

Policy explaining that because of enumerated problems with the 

deep seabed mining provisions the United States would not sign 

the Convention, but that otherwise the treaty ‘‘contains provisions 

with respect to traditional uses of the oceans which generally confirm existing maritime law and practice and fairly balance the interests of all states.’’ Consequently, President Reagan announced 

that the United States would act in accordance with the balance 

of interests struck in the Convention relating to the ‘‘traditional 

uses of the oceans—such as navigation and overflight.’’ 

Other allies, such as the United Kingdom, shared the concerns 

expressed by the United States regarding the deep seabed mining 

provisions in Part XI of the Convention. As a result, the Administration of President George H.W. Bush laid the groundwork for the 

launch of negotiations on a new agreement that would modify the 

deep seabed mining regime in the Convention to address the various concerns raised. The result was the 1994 Agreement, which 

dealt with each of the problems identified by the United States. 

Consequently, the United States signed the 1994 Agreement on 

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July 29, 1994. President Bill Clinton submitted both agreements to 

the Senate in October of that year. 

In the 108th Congress, the committee held two hearings on the 

Convention in October 2003, in response to the Administration’s 

designation of the Convention as one of five ‘‘urgent’’ treaties on its 

treaty priority list. In February 2004, the committee unanimously 

approved the Convention and the 1994 Agreement (Exec. Rpt. 108- 

10). No action was taken by the Senate, and under the operation 

of the Senate rules, the Convention and the 1994 Agreement were 

returned to the committee at the end of the 108th Congress. 

On May 19, 2007, President George W. Bush urged the Senate 

to approve the Convention during this session of Congress, stating 

as follows: 

Joining [the Convention] will serve the national security 

interests of the United States, including the maritime mobility of our armed forces worldwide. It will secure U.S. 

sovereign rights over extensive marine areas, including the 

valuable natural resources they contain. Accession [to the 

Convention] will promote U.S. interests in the environmental health of the oceans. And it will give the United 

States a seat at the table when the rights that are vital 

to our interests are debated and interpreted. 

As of October 31, 2007, there are 155 Parties to the Convention, 

and 131 Parties to the Agreement Relating to the Implementation 

of Part XI. Every member country of NATO, except Turkey and the 

United States, is a Party to the Convention and the 1994 Agreement. Most NATO states did not join until the conclusion of the 

1994 Agreement. 

III. MAJOR PROVISIONS

A detailed article-by-article analysis of the Convention and the 

1994 Agreement may be found in the September 23, 1994 Letter 

of Submittal from the Secretary of State to the President, which is 

reprinted in full in Treaty Document No. 103-39. The Bush Administration has confirmed its view that, generally, the Letter of Submittal appropriately analyzes and interprets the Convention and 

the 1994 Agreement, and has furthermore agreed that the declarations and understandings in the resolution of advice and consent 

agreed to by the committee further refine the analysis and interpretations contained in the Letter of Submittal. The Executive 

Branch’s views on particular provisions of the Convention and the 

1994 Agreement are also found in testimony and responses to questions for the record at various hearings held on the Convention and 

the 1994 Agreement. 

In general, the Convention reflects a careful balance between the 

interests of the international community in maintaining freedom of 

navigation and those of coastal States in their offshore areas. The 

United States has important interests in both arenas. As the 

world’s preeminent maritime power, the United States has a vital 

interest in freedom of navigation both to ensure that our military 

has the mobility it needs to protect U.S. security interests worldwide and to facilitate the transport of goods in international trade. 

In 2006, 29.7 percent of all U.S. exports were shipped on the 

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al State, the United States has substantial interests in developing, 

conserving, and managing the vast resources of the oceans off its 

coasts, in protecting the marine environment, and in preventing activity off its coasts that threatens the safety and security of Americans. Preserving the careful balance the Convention strikes between these various competing interests is of great importance to 

the United States. A summary of the key provisions of the Convention and Implementing Agreement is set forth below. 

Maritime Zones 

The Convention establishes a jurisdictional regime for the world’s 

oceans based on a series of zones defined by reference to the distance from each State’s coast. Under Part II of the Convention, a 

State may claim as its territorial sea an area up to 12 nautical 

miles (nm) from its coast. A State’s territorial sea is subject to the 

State’s sovereignty. Beyond 12 nm and up to 24 nm from its coast, 

a State may claim a contiguous zone in which the coastal State 

may exercise the limited control necessary to prevent or punish infringement of its customs, fiscal, immigration, or sanitary laws and 

regulations in its territory or territorial sea. Beyond its territorial 

sea, Part V of the Convention provides that a State may claim an 

area up to 200 nm from its coast as an exclusive economic zone 

(EEZ) in which it enjoys sovereign rights for the purpose of exploring, exploiting, conserving and managing living and non-living natural resources, as well as jurisdiction as provided for in the Convention with respect to, inter alia, marine scientific research and 

the protection and preservation of the marine environment. The 

Convention gives the United States the largest EEZ of any country 

in the world. The high seas beyond 200 nm from a State’s coastline 

are open to all uses and are not subject to the jurisdiction of any 

State. The Convention establishes rules for drawing baselines to be 

used in measuring the distances from a State’s coast that define 

these various zones. 

The Convention additionally addresses the delimitation of overlapping territorial seas, exclusive economic zones, and continental 

shelves. These provisions are fully consistent with U.S. law and 

would not require a change to the current maritime boundaries of 

the United States. Moreover, as reflected in questions for the 

record that are included in the forthcoming hearing print, the Convention’s provisions would apply only to maritime boundary delimitation between countries and do not address boundary delimitation 

between U.S. States. 

The Continental Shelf 

Part VI of the Convention provides that a coastal State exercises 

sovereign rights for the purpose of exploring and exploiting the natural resources of its continental shelf, which is comprised of the 

seabed and subsoil of the submarine areas that extend beyond the 

territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance 

of 200 nm from the baselines where the outer edge of the continental margin does not extend up to that distance. The natural resources of the shelf consist of the mineral and other non-living resources of the seabed and subsoil, together with the living organisms belonging to sedentary species. 

5 

The Convention establishes rules defining the continental shelf, 

as well as an expert body—the Commission on the Limits of the 

Continental Shelf—to consider and make recommendations to 

coastal States on matters related to the establishment of the outer 

limit of their continental shelf beyond 200 nm. If the coastal State 

agrees, the shelf limits set by that State on the basis of the recommendations are final and binding, thus providing important stability and certainty to these claims. The Convention gives the 

United States one of the largest continental shelves in the world. 

In the Arctic, for example, the U.S. continental shelf could run at 

least as far as 600 nm out from the coast. 

Under Part XI of the Convention (discussed below), mineral resources of the deep seabed (i.e., the seafloor beyond national jurisdiction) are administered by an international authority established 

by the Convention, and no State may claim or exercise sovereignty 

over the resources thereof, though States or individuals may exercise certain rights with regard to minerals in accordance with Part 

XI, as modified by the 1994 Agreement. 

Freedom of Navigation and Overflight 

The Convention provides protections for critical freedoms of navigation and overflight of the world’s oceans. These include the prohibition of territorial sea claims beyond 12 nm and the express protection for and accommodation of passage rights through the territorial sea and archipelagic waters, including transit passage 

through straits and archipelagic sea lanes passage. They also include the express protection for and accommodation of the high 

seas freedoms of navigation, overflight, laying of submarine cables 

and pipelines, and related uses beyond the territorial sea, including 

areas where there are coastal State sovereign rights and jurisdiction, such as the EEZ and the continental shelf. United States 

Armed Forces rely on these navigation and overflight rights daily, 

and their protection is of paramount importance to U.S. national 

security. 

During the course of the committee’s review, Members questioned whether joining the Convention would have an impact on 

the Proliferation Security Initiative (PSI). PSI is a global initiative 

aimed at stopping shipments of weapons of mass destruction, their 

delivery systems, and related materials worldwide. Testimony from 

the Executive Branch, including testimony from the Navy and the 

Coast Guard, was unanimous in the view that joining the Convention would have no adverse impact on, and would in fact strengthen, PSI. In particular, Admiral Mullen, now Chairman of the Joint 

Chiefs of Staff, testified in 2003 that becoming a Party to the Convention ‘‘would greatly strengthen [the Navy’s] ability to support 

the objectives’’ of PSI by reinforcing and codifying freedom of navigation rights on which the Navy depends for operational mobility. 

Admiral Walsh, the current Vice Chief of Naval Operations, testified on September 27, 2007, that joining the Convention would help 

the United States attract new and crucial PSI partners. Admiral 

Walsh stated that ‘‘geographically strategic nations, such as Indonesia and Malaysia, would be more likely to join PSI if we, in turn, 

join the Convention.’’ 

6 

Protection and Preservation of the Marine Environment 

The Convention includes numerous provisions related to protection of the marine environment. For example, Part XII addresses 

multiple sources of marine pollution, including pollution from vessels, seabed activities, ocean dumping, and land-based sources, and 

promotes continuing improvement in the health of the world’s 

oceans. Depending upon the source of marine pollution and the 

particular maritime zone in question, Part XII sets forth various 

obligations and authorizations relating to coastal States, flag 

States, and/or all States (such as to develop international standards). The provisions encourage Parties to work together to address 

issues of common and pressing concern. Another example is Article 

21, which includes important rights for coastal States with regard 

to protection of the environment and natural resources in the territorial sea. 

Questions were raised during the course of the committee’s review concerning whether the Convention, including its dispute settlement provisions, would apply to U.S. land-based activities. The 

committee received oral and written testimony on this question. Article 207 requires coastal States merely to ‘‘take into account’’ internationally agreed rules, standards, and recommended practices and 

procedures. Alleged marine pollution by the United States from 

land-based sources would not be subject to dispute settlement 

under the Convention. Specifically, Article 297(1)(c) provides that 

only certain coastal State obligations related to marine pollution 

are subject to dispute settlement. Among other things, there needs 

to be a ‘‘specified’’ international rule or standard ‘‘applicable’’ to the 

coastal State. There are no specified rules regarding land-based 

sources that are applicable to the United States that would be subject to dispute settlement. (As noted, even if there were specified 

rules or standards applicable to the United States, Article 207 

would not require the coastal State to follow such standards, only 

to take them into account.) Furthermore, the ‘‘enforcement’’ provisions in Part XII (such as Article 213) do not address Party-toParty dispute settlement. Rather, they either allocate enforcement 

responsibilities among flag States, port States, and coastal States 

or they address enforcement by Parties vis-a ́-vis private actors, 

such as their flag vessels or foreign flag vessels. 

Questions were also raised during the course of the committee’s 

review as to whether provisions in Part XII that require Parties to 

take into account internationally agreed upon rules and standards 

regarding atmospheric pollution that affects the marine environment could be construed as committing the United States to the 

Kyoto Protocol to the United Nations Framework Convention on 

Climate Change, without the Protocol having been approved by the 

Senate. As reflected in the record, Executive Branch officials confirmed that this is not the case. The United States has not agreed 

to the Kyoto Protocol, and the Convention does not apply the Kyoto 

Protocol to the United States, either directly or indirectly. 

Living Marine Resources 

Most living marine resources of importance to coastal States are 

located within 200 nm from coasts. The Convention’s authorization 

of the establishment of EEZs, and provision for the sovereign rights 

and management authority of coastal States over living resources 

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within such EEZs, bring such living marine resources under the jurisdiction of coastal States. The Convention provides that each 

coastal State has the sovereign right to make determinations under 

the Convention related to the utilization, conservation and management of living resources within its EEZ. The Convention also includes specific provisions for the conservation of marine mammals. 

While the Convention preserves the freedom to fish on the high 

seas, it makes that freedom subject to certain obligations, including 

the duty to cooperate in the conservation and management of the 

living resources in high seas areas. 

Marine Scientific Research 

Part XIII of the Convention recognizes the critical role of marine 

scientific research in understanding oceanic processes and in informed decision making about uses of the oceans. Following a maritime zone approach, it provides coastal States with greater rights 

to regulate marine scientific research in their territorial seas than 

in the EEZ and on the continental shelf. All States have the right 

to conduct such research freely in high seas areas. Part XIII also 

provides for international cooperation to promote marine scientific 

research. 

Deep Seabed Mining 

Part XI of the Convention, as fundamentally modified by the 

1994 Agreement, establishes a regime governing the exploration 

and exploitation of the seabed, ocean floor and subsoil thereof beyond the limits of national jurisdiction on the basis of capitalist, 

market-oriented principles. As modified, Part XI meets the objections raised by the United States and other industrialized countries 

concerning the original Convention. It is expected to provide a stable and internationally recognized framework in which mining can 

proceed in response to demand in the future for deep seabed minerals. The Convention establishes an international organization, 

the International Seabed Authority, to administer the regime. In 

light of questions raised during the committee’s review of the Convention and 1994 Agreement, it is worth noting that the Authority 

is not a United Nations institution. The Authority is an independent institution established by the Convention, which is located 

in Kingston, Jamaica and currently employs fewer than 40 individuals. 

Responding to a principal U.S. objection to the Convention as it 

was originally concluded in 1982, the 1994 Agreement provides for 

a decisionmaking structure for the Authority that protects U.S. interests. Under Section 3(15)(a) of the Annex to the 1994 Agreement, the United States is guaranteed a seat on the Council in perpetuity. The decisionmaking process within the Authority is fairly 

complex, but any decision that would result in a substantive obligation on the United States, or that would have financial or budgetary implications, would require U.S. consent. Moreover, the 

United States would need to approve the adoption of any amendment to the deep seabed mining provisions. 

In response to other U.S. objections, the 1994 Agreement also 

eliminates mandatory technology transfer provisions and non-market based controls on the levels of mineral production from the 

deep seabed that were part of the Convention as originally conVerDate Aug 31 2005 07:42 Dec 20, 2007 Jkt 000000 PO 00000 Frm 00007 Fmt 6659 Sfmt 6602 H:\DOCS\110-9.TXT sfrela2 PsN: MIKEB
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cluded. Moreover, Article 302 of the Convention explicitly provides 

that nothing in the Convention requires a Party to disclose information that ‘‘is contrary to the essential interests of its security.’’ 

IV. ENTRY INTO FORCE AND DENUNCIATION

In accordance with Article 308 of the Convention and Article 6 

of the 1994 Agreement, the Convention and the 1994 Agreement 

will enter into force for the United States on the thirtieth day following the date on which the United States deposits its instrument 

of accession to the Convention and its instrument of ratification to 

the 1994 Agreement with the Secretary-General of the United Nations. 

A Party may denounce (withdraw from) the Convention on one 

year’s notice in accordance with Article 317. 

V. IMPLEMENTING LEGISLATION

The United States has acted in accordance with the Convention’s 

balance of interests relating to the traditional uses of the oceans 

since it was directed to do so in a 1983 statement issued by President Reagan. The United States does not need to enact new legislation upon joining the Convention and the 1994 Agreement to supplement or modify existing U.S. law. Implementing legislation, 

however, will be necessary at some point after U.S. accession in 

order to enforce decisions of the Seabed Disputes Chamber, which 

is addressed below in connection with understanding 22 of the resolution of advice and consent. 

VI. COMMITTEE ACTION

The Convention and the 1994 Agreement were submitted to the 

Senate and referred to the committee on October 7, 1994. Two 

hearings were held on October 14, 2003 and October 21, 2003, at 

which testimony was received from experts on oceans law and policy, former U.S. negotiators of the Convention, representatives of 

the Departments of State, Defense, and the U.S. Coast Guard, and 

representatives of organizations interested in oceans issues (a transcript of this hearing may be found in Exec. Rept. 108–10). In February 2004, the committee ordered the Convention and the 1994 

Agreement favorably reported by a vote of 19–0. No action was 

taken by the Senate and, under the operation of the Senate rules, 

the Convention and the 1994 Agreement were returned to the committee at the end of the 108th Congress. 

This year, the committee held two public hearings on the Convention and the 1994 Agreement on September 27 and October 4. 

(A hearing print of these sessions will be forthcoming.) Testimony 

was received from John D. Negroponte, Deputy Secretary of State; 

Gordon England, Deputy Secretary of Defense; Admiral Patrick M. 

Walsh, Vice Chief of Naval Operations; Admiral Vern Clark, USN 

(Ret.), Former Chief of Naval Operations; Bernard H. Oxman, Professor at the University of Miami School of Law; Frank J. Gaffney, 

Jr., President of the Center for Security Policy; Fred L. Smith, Jr., 

President of the Competitive Enterprise Institute; Paul C. Kelly, 

President of the Gulf of Mexico Foundation; Joseph J. Cox, President of the Chamber of Shipping of America; and Douglas R. Burnett, Partner at Holland & Knight, LLP. On October 31, 2007, the 

9 

committee again considered the Convention and the 1994 Agreement, and ordered them favorably reported by a roll call vote of 

17–4, with a quorum present and a majority of those members 

physically present and voting in the affirmative. The following Senators voted in the affirmative: Biden, Dodd, Kerry, Feingold, Boxer, 

Nelson, Obama, Menendez, Cardin, Casey, Webb, Lugar, Hagel, 

Corker, Sununu, Voinovich, and Murkowski. The following Senators voted in the negative: Coleman, DeMint, Isakson, and Vitter. 

VII. COMMITTEE RECOMMENDATION AND COMMENTS

The committee recommends that the Senate give its advice and 

consent to accession to the Convention and ratification of the Implementing Agreement. The committee believes that the Convention advances important U.S. interests in a number of areas. It advances U.S. national security interests by preserving the rights of 

navigation and overflight through and above the world’s oceans on 

which the military relies to protect U.S. interests around the world, 

and it enhances the protection of these rights by providing binding 

mechanisms to enforce them. It advances U.S. economic interests 

by enshrining the right of the United States to explore and exploit 

the vast natural resources of the oceans out to 200 nm from our 

coastline, and of our continental shelf beyond 200 nm, and by protecting freedom of navigation on the oceans over which 29.7 percent of all U.S. exports and 52.3 percent of all U.S. imports were 

transported in 2006. It advances U.S. interests in the protection of 

the environment by protecting and preserving the marine environment from pollution from a variety of sources, and by establishing 

a framework for further international action to combat pollution. 

Becoming Party to the Convention also advances the ability of the 

United States to play a leadership role in global oceans issues, including by allowing the United States to participate fully in institutions created by the Convention such as the International Seabed 

Authority, the Commission on the Limits of the Continental Shelf, 

and the International Tribunal for the Law of the Sea. 

In an era when the United States faces growing energy vulnerability, failing to accede to the Convention will constrain the opportunities of U.S. energy companies to explore beyond 200 nm. Mr. 

Paul Kelly, testifying on behalf of the oil and gas industry, asserted 

that under the Convention, the United States would have the opportunity to receive international recognition of its economic sovereignty over more than 291,000 square miles of extended continental shelf. Much of this is in the Arctic, which holds approximately one quarter of the world’s undiscovered oil and natural gas, 

according to the U.S. Geological Survey World Petroleum Assessment in 2000. As Mr. Kelly testified to the committee: ‘‘by some estimates, in the years ahead we could see a historic dividing up of 

many millions of square kilometers of offshore territory with management rights that accrue . . . . So, our question is, how much 

longer can the United States afford to be a laggard in joining this 

process?’’ 

The committee believes it important that U.S. accession to the 

Convention be completed promptly. The Convention became open 

for amendment in November 2004. As noted above, in negotiating 

the Convention, the United States was successful in achieving a regime that struck a careful balance in ensuring protection of many 

10 

important U.S. interests. If the United States is not a Party to the 

Convention, our ability to protect the critically important balance 

of rights that we fought hard to achieve in the Convention will be 

significantly diminished. In addition, the Convention’s Commission 

on the Limits of the Continental Shelf is now making recommendations with regard to other countries’ submissions that could affect 

the United States’ own extended continental shelf. Full U.S. participation in this process requires us to be a Party to the Convention. 

The President has expressed his strong support for U.S. accession to the Convention and ratification of the 1994 Agreement. In 

addition, among others, the National Security Adviser, the Joint 

Chiefs of Staff, the Secretaries of Homeland Security, Commerce 

and the Interior, four former Commandants of the U.S. Coast 

Guard, every living Chief of Naval Operations, former Secretaries 

of State Shultz, Haig, Baker and Albright, and every living Legal 

Adviser to the U.S. Department of State have written to the committee to express their support for the Convention and the 1994 

Agreement. 

The committee has received letters in support of U.S. accession 

to the Convention and ratification of the 1994 Agreement from affected industry groups, environmental groups, and other affected 

associations including the Chamber of Commerce of the United 

States of America, the Chamber of Shipping of America, the National Foreign Trade Council, the American Petroleum Institute, 

the International Association of Drilling Contractors, the Independent Petroleum Association of America, American Exploration 

and Production Council, U.S. Oil and Gas Association, National 

Ocean Industries Association, the National Marine Manufacturers 

Association, AT & T, Sprint, Tyco Communications Inc., the North 

American Submarine Cable Association, Pacific Crossing Limited, 

Pacific Telecom Cable, the National Fisheries Institute, the U.S. 

Tuna Foundation, the Ocean Conservancy, the World Wildlife 

Fund, the Humane Society of the United States, the American Bar 

Association, the Council on Ocean Law, the U.S. Arctic Research 

Commission, the Center for Seafarers’ Rights, Citizens for Global 

Solutions, the League of Conservation Voters, the National Environmental Trust, the Natural Resources Defense Council, the Pew 

Oceans Commission, and the Transportation Institute. The committee has also received a statement of support for the Convention 

and the 1994 Agreement from the U.S. Commission on Oceans Policy (an official body established by Congress). 

The committee has received letters of opposition to U.S. accession 

to the Convention and ratification of the 1994 Agreement from the 

following organizations: The American Conservative Union, State 

Department Watch, Freedom Alliance, America’s Survival, and the 

Competitive Enterprise Institute. 

Discussion Regarding the Resolution of Advice and Consent 

The committee has included a number of declarations, understandings, and conditions in the resolution of advice and consent. 

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ments, however phrased or named, with a view, inter alia, to harmonizing its laws and regulations with the provisions of the Convention, provided such statements do not purport to modify the effect of the Convention in their application to that State. 

Section two of the resolution contains two declarations relating 

to the dispute settlement procedures under the Convention. The 

first declaration concerns the forum for dispute settlement. Pursuant to Article 287 of the Convention, a State, when adhering to the 

Convention or thereafter, is able to choose, by written declaration, 

one or more of the means for the settlement of disputes (i.e., the 

International Tribunal for the Law of the Sea, the International 

Court of Justice, arbitration under Annex VII, or special arbitration under Annex VIII for certain disputes, such as fisheries and 

marine scientific research). The declaration states that the United 

States chooses special arbitration for all the categories of disputes 

to which it may be applied and arbitration for other disputes. 

The second declaration concerns the exclusion of certain categories of disputes from the dispute settlement procedures. Article 

298 of 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 UN Security Council is exercising the functions 

assigned to it by the UN Charter. The declaration states that the 

United States elects to exclude all three of these categories of disputes from binding dispute settlement, which would include all of 

the procedures related thereto. 

With respect to disputes concerning military activities, the declaration further states that U.S. consent to accession is conditioned 

upon the understanding that, under Article 298(1)(b), each State 

Party has the exclusive right to determine whether its activities 

are or were ‘‘military activities,’’ and that such determinations are 

not subject to review. Questions were raised during the course of 

the committee’s review as to whether intelligence activities would 

be considered covered by the term ‘‘military activities.’’ Consistent 

with prior testimony from officials of the Department of Defense 

and the Central Intelligence Agency before the Select Committee 

on Intelligence, the Department of State confirmed, in a letter to 

Chairman Biden (included in the forthcoming hearing print), that 

intelligence activities at sea are military activities for purposes of 

the U.S. dispute settlement exclusion under the Convention and 

thus the binding dispute settlement procedures would not apply to 

U.S. intelligence activities at sea. 

Section three of the resolution contains a series of understandings and declarations addressing specific issues raised by the 

Convention. The first five understandings relate principally to freedoms of navigation and overflight and related uses of the sea under 

the Convention. As noted above, these rights and freedoms are of 

critical importance to the U.S. military, and in particular its need 

for global mobility. 

The first understanding states that nothing in the Convention 

impairs the inherent right of self-defense or rights during armed 

conflict, including Convention provisions that refer to ‘‘peaceful 

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ment of fact, underscores the importance the United States attaches to its right under international law to take appropriate actions in self-defense or in times of armed conflict, including, where 

necessary, the use of force. 

The second, third, and fourth understandings address navigational rights and freedoms in various maritime zones under the 

Convention. The second understanding focuses on innocent passage 

in the territorial sea, the third focuses on transit passage and 

archipelagic sea lanes passage under Parts III and IV of the Convention, and the fourth focuses on high seas freedoms of navigation 

and overflight in the exclusive economic zone. Collectively, these 

understandings confirm that various activities historically undertaken by the U.S. Armed Forces in these zones are consistent with 

the rights and freedoms set forth in the Convention. 

Several points are worth noting in particular in connection with 

the second understanding regarding innocent passage: 

• Paragraph 2(B) clarifies that Article 19(2) of the Convention 

contains an exhaustive list of activities that render passage 

non-innocent. The committee understands that the list of activities in no way narrows the right of innocent passage the 

United States currently enjoys under the 1958 Territorial Sea 

Convention and customary international law. On the contrary, 

the Convention improves upon the 1958 Convention’s innocent 

passage regime from the perspective of U.S. navigational mobility by establishing a more objective standard for the meaning of ‘‘innocent’’ passage based on specifically enumerated activities, and by setting forth an exhaustive list of those activities that will render passage not ‘‘innocent.’’ (Article 20 provides that submarines and other underwater vehicles are required to navigate on the surface and to show their flag in 

order to enjoy the right of innocent passage; however, failure 

to do so is not characterized as inherently not ‘‘innocent.’’) 

The committee further understands that, as in the case of the 

analogous provisions in the 1958 Convention on the Territorial Sea 

and Contiguous Zone (Articles 18, 19, and 20), the innocent passage provisions of the Convention set forth conditions for the enjoyment of the right of innocent passage in the territorial sea but do 

not prohibit or otherwise affect activities or conduct that is inconsistent with that right and therefore not entitled to that right. 

• Paragraph 2(A) states the U.S. understanding that, among 

other things, the ‘‘purpose’’ of a ship is not relevant to the enjoyment of innocent passage, and paragraph 2(C) states the 

U.S. understanding that a determination of non-innocence cannot be made, among other things, on the basis of a ship’s ‘‘purpose.’’ The reference to ‘‘purpose’’ is intended to make clear, for 

example, that a ship navigating for the sole purpose of exercising its right of innocent passage is entitled to the right of 

innocent passage but that would not preclude a ship’s purpose 

from being taken into account in assessing whether that ship 

posed a threat to use force within the meaning of Article 

19(2)(a). 

• Understanding 2(D) reiterates the longstanding U.S. position 

that the Convention does not authorize a coastal State to condition the exercise of the right of innocent passage by any 

13 

ships, including warships, on the giving of prior notification to 

or the receipt of prior permission from the coastal State. The 

Convention, and this understanding, do not, however, affect 

the ability of Parties to the Convention to agree among themselves to a prior notification regime. For example, such regimes 

have been negotiated under the auspices of the International 

Maritime Organization. In this regard, regulation V/11 (ship 

reporting systems) and regulation V/19.2.4 (automatic identification systems) of the regulations annexed to the International Convention for the Safety of Life at Sea, 1974, as 

amended, should be noted. 

The fifth understanding concerns marine scientific research. Part 

XIII of the Convention addresses the rights of coastal States to require consent for marine scientific research undertaken in marine 

areas under their jurisdiction. The understanding indicates that 

the term ‘‘marine scientific research’’ does not include certain activities, such as military activities, including military surveys. It is 

an illustrative list; therefore, there are other activities, such as 

operational oceanography, that are also not considered marine scientific research. 

The sixth understanding expresses the U.S. view that those declarations and statements of other Parties that purport to limit 

navigation, overflight, or other rights and freedoms in ways not 

permitted by the Convention (such as those not in conformity with 

the Convention’s provisions relating to straits used for international navigation) contravene the Convention (specifically Article 

310, which does not permit such declarations and statements). 

While it is not legally necessary for the United States to comment 

on declarations and statements that are inconsistent with the Convention, given that reservations are not permitted under the Convention, the committee believes it appropriate and desirable to 

make clear the U.S. position on such declarations and statements. 

The resolution next contains a series of understandings addressing principally environment-related aspects of the Convention, including provisions of the Convention addressing marine pollution 

enforcement. Over the past decade or more, the Executive Branch 

has vigorously enforced U.S. marine pollution laws consistent with 

the Convention’s provisions relevant to foreign flag vessels. In light 

of substantial experience gained, the Executive Branch has proposed, and the committee agrees, that it would be desirable to 

highlight certain aspects of the Convention’s provisions and harmonize certain terminology as between the Convention and U.S. 

law. The committee also notes that marine pollution can come from 

a variety of sources. For example, the committee notes that air pollution from ships, which is the subject of MARPOL Annex VI, constitutes marine pollution due to the impact such air pollution can 

have on the marine environment. 

The seventh understanding addresses an unmeritorious assertion 

that has occasionally been made in relation to various U.S. laws 

that restrict the import of goods to promote observance of a particular environmental or conservation standard, such as the protection of dolphins or sea turtles. It confirms that the Convention in 

no way limits a State’s ability to prohibit or restrict imports in 

order to, among other things, promote or require compliance with 

environmental and conservation laws, norms, and objectives. 

14 

The eighth understanding states that certain Convention provisions apply only to a particular source of marine pollution (namely, 

pollution from vessels, as referred to in Article 211) and not other 

sources of marine pollution, such as dumping. The ninth understanding harmonizes the Convention’s ‘‘clear grounds’’ standard in 

Articles 220 and 226 with the U.S. ‘‘reasonable suspicion’’ standard. 

The tenth understanding concerns Article 228(2), which provides 

for a three-year statute of limitations concerning certain marine 

pollution proceedings. The understanding sets forth the limits of 

the applicability of the provision. 

The eleventh understanding addresses the scope of Article 230, 

which governs the use of monetary penalties in cases involving pollution of the marine environment by foreign vessels. The understanding harmonizes aspects of Article 230 with U.S. law and practice for the enforcement of pollution laws. The reference to ‘‘corporal punishment’’ in the understanding is not addressed to any 

U.S. laws authorizing such punishment with regard to ship master 

and sailors (the committee is unaware of any such laws); rather it 

is aimed at other States that may provide for such punishment. 

The Article thus provides certain protections for U.S. ship masters 

and sailors abroad. 

The twelfth understanding clarifies that the marine pollution 

provisions of the Convention, specifically sections 6 and 7 of Part 

XII, do not limit a State’s authority to impose penalties for, among 

other things, non-pollution offenses (such as false statement violations under 18 U.S.C. 1001) or marine pollution violations that 

take place in a State’s ports, rivers, harbors, or offshore terminals. 

The thirteenth understanding provides that the Convention confirms and does not constrain the longstanding right of a State to 

impose and enforce conditions for the entry of foreign vessels into 

its ports, rivers, harbors, or offshore terminals. This sovereign right 

enables States to address important concerns, such as security and 

pollution, regardless of whether action to address such concerns 

has been or will be taken at the international level and regardless 

of whether or not the condition is directly related to the ports, rivers, harbors, or offshore terminals. These conditions might also 

apply as a matter of port departure and compliance with such conditions can be considered in approving subsequent port entries. The 

understanding contains illustrative examples of an environmental 

nature, namely a requirement that ships exchange ballast water 

beyond 200 nautical miles from shore and a requirement that tank 

vessels carrying oil be constructed with double hulls. Another example of the U.S. exercise of this right is the requirement for prior 

notice of arrival in port of foreign vessels. 

The fourteenth understanding relates to Article 21(2) of the Convention, which provides that the laws a coastal State may adopt relating to innocent passage through the territorial sea 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.’’ This understanding makes clear that 

certain types of measures would not constitute measures applying 

to ‘‘design, construction, manning or equipment’’ of foreign ships 

and would therefore not be limited by this provision. The list is illustrative, not exhaustive. 

15 

The fifteenth understanding addresses the issue of potential marine pollution from industrial operations (such as seafood processing) on board a foreign vessel. While the Convention does not 

specifically designate on-board industrial operations as a source of 

marine pollution (as it does, for example, for vessel source pollution 

and pollution from dumping), this understanding makes clear that 

the Convention nevertheless supports a coastal State’s regulation 

of discharges into the marine environment resulting from such operations. A variety of provisions in the Convention might be applicable depending upon the circumstances. It should be noted that 

the United States currently regulates discharges from seafood processing operations on board foreign vessels in its territorial sea and 

EEZ. 

Similarly, the sixteenth understanding addresses the issue of 

invasive species, which is a major environmental issue facing many 

States in the United States. This understanding affirms that the 

Convention supports the ability of a coastal State, such as the 

United States, to exercise its domestic authority to regulate the introduction into the marine environment of alien or new species. A 

variety of Convention provisions might be applicable, depending 

upon the circumstances (see, e.g., Articles 21, 56, 196, or 211). The 

ability to rely on various authorities is important to ensure that 

the United States and other coastal States have appropriate flexibility to fully address this problem. 

The seventeenth understanding addresses fisheries management 

issues. The United States implements the living marine resource 

provisions of the Convention through a variety of domestic laws. 

For fisheries issues, these provisions are implemented primarily 

through the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801 et seq. (Magnuson-Stevens Act). Article 

56(1)(a) of the Convention establishes that, in the exclusive economic zone, a coastal State has sovereign rights for the purpose of 

exploring and exploiting, conserving and managing the natural resources, whether living or non-living. In the United States, such 

measures have included fisheries management pursuant to the 

Magnuson-Stevens Act, the establishment of no-anchoring areas to 

protect coral reefs, and the creation of marine sanctuaries under 

the National Marine Sanctuaries Act. This provision also provides 

authority to address such threats as ship strikes of cetaceans. 

The Magnuson-Stevens Act provides a national framework for 

conserving and managing marine fisheries within the U.S. EEZ. 

The Act is completely consistent with the Convention and enables 

the United States to exercise its rights and implement its fisheries 

conservation and management obligations under Articles 61 and 62 

of the Convention. The Magnuson-Stevens Act provides the United 

States with the authority to make determinations related to utilization, conservation and management of living resources within its 

EEZ, including defining optimum yield and allowable catch, considering effects on non-target species, and determining what, if any, 

surplus may exist. Articles 61 and 62 provide that the coastal State 

has the exclusive right to make these determinations. In particular, 

under both the Magnuson-Stevens Act and Article 62(2), the United 

States has no obligation to give another State access to fisheries in 

its EEZ unless, after determining the optimum yield and allowable 

catch under the Act, the United States has determined both that 

16 

there is surplus over and above the allowable catch and that the 

coastal State does not or will not have the capacity to harvest that 

surplus. In such event, access may be provided under reasonable 

terms and conditions established by the coastal State. The Magnuson-Stevens Act and other legislation provide the United States 

with the authority to cooperate with other States in managing fisheries resources that are highly migratory or that straddle jurisdictional lines, in order to comply with obligations under Articles 63, 

64, 118, and 119. Consistent with Article 297(3), binding dispute 

settlement does not apply to disputes relating to a coastal State’s 

discretionary powers for determining the allowable catch, its harvesting capacity, the allocation of surpluses to other States, and the 

terms and conditions established in its conservation and management laws and regulations. 

The eighteenth understanding concerns Article 65, which addresses marine mammals. In part, Article 65 provides that the 

Convention does not restrict the right of a coastal State or the competence of an international organization to take stricter measures 

than those provided in the Convention. With respect to this provision, the understanding notes that it lent direct support to the establishment of the international moratorium on commercial whaling that is in place and that it lends current support to the creation 

of sanctuaries and other conservation measures. Article 65 also 

provides that, in the case of cetaceans, States shall work through 

appropriate international organizations for their conservation, 

management and study. The understanding indicates, with respect 

to this provision, that such cooperation applies not only to large 

whales but to all cetaceans. 

The nineteenth understanding makes clear that the term ‘‘sanitary laws and regulations’’ in Article 33 is not limited to the transmittal of human illnesses, but may include, for example, laws and 

regulations to protect human health from pathogens being introduced into the territorial sea. This example is non-exhaustive. 

The next five understandings and declarations generally address 

procedural and constitutional matters. 

The twentieth understanding relates to decision making in the 

Council, the executive organ of the International Seabed Authority 

that has substantial decision making authority. Article 161(8)(d) 

provides for certain decisions of the Council to be taken by consensus. The United States will, by virtue of the 1994 Agreement, 

have a permanent seat on the Council. As such, the United States 

will be in a position to block consensus in the Council on decisions 

subject to consensus decision making. The Convention, as modified 

by the Agreement, is structured to ensure consensus decision making for the most significant decisions, including decisions resulting 

in binding substantive obligations on States Parties. The understanding reinforces the negotiated agreement that decisions adopted by procedures other than the consensus procedure in Article 

161(8)(d) will involve administrative, institutional or procedural 

matters and will not result in binding substantive obligations on 

the United States. 

The twenty-first understanding addresses certain decisions of the 

Assembly, the primary body of the International Seabed Authority. 

Specifically, the Assembly, under Article 160(2)(e), assesses the 

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17 

thority until the Authority has sufficient income from other sources 

to meet its administrative expenses. Section 3(7) of the Annex to 

the 1994 Agreement provides that ‘‘[d]ecisions of the Assembly . . . 

having financial or budgetary implications shall be based on the 

recommendations of the Finance Committee.’’ Under Section 9(3) of 

the Annex to the 1994 Implementing Agreement seats are guaranteed on the Finance Committee for ‘‘the five largest contributors to 

the administrative budget of the Authority’’ until the Authority has 

sufficient funds other than assessed contributions to meet its administrative expenses. Because such contributions are based on the 

United Nations scale of assessments (and because the United 

States is the largest contributor on that scale), the United States 

will have a seat on the Finance Committee so long as the Authority 

supports itself through assessed contributions. The understanding 

ties these related provisions together to make clear that no assessed contributions could be decided by the Assembly without the 

agreement of the United States in the Finance Committee. 

The twenty-second declaration addresses Article 39 of Annex VI 

of the Convention, which provides for decisions of the Seabed Disputes Chamber to be enforceable in the territories of the States 

Parties in the same manner as judgments or orders of the highest 

court of the State Party in whose territory the enforcement is 

sought. Because of potential constitutional concerns regarding direct enforceability of this provision in U.S. courts and because Article 39 does not require any particular manner in which Chamber 

decisions must be made enforceable, the declaration provides that, 

for the United States, such decisions shall be enforceable only in 

accordance with procedures established by implementing legislation 

and that such decisions shall be subject to such legal and factual 

review as is constitutionally required and without precedential effect in any court of the United States. Given the current undeveloped state of deep seabed mining, such legislation would not be 

necessary before U.S. accession to the Convention. 

The twenty-third understanding focuses on the adoption of 

amendments to section 4 of Annex VI of the Convention, which relates to the Seabed Disputes Chamber, which is established under 

the Convention to resolve certain disputes arising in connection 

with deep sea bed mining. The basic rules for amending Annex VI 

are set forth in section 5 of that Annex. It is clear from Article 41 

of that Annex, with respect to amendments to Annex VI other than 

to section 4, that the United States could block adoption of such an 

amendment (either through the ability to block afforded by Article 

313(2) or through the consensus procedure at a conference of the 

States Parties). Regarding amendments to section 4 of Annex VI, 

related to the Seabed Disputes Chamber, Article 41(2) of Annex VI 

provides that such amendments may be adopted only in accordance 

with Article 314, which in turn requires that such amendments be 

approved by the Assembly following approval by the Council. Article 314 does not specify the decisionmaking rule by which the 

Council must approve the amendment before the Assembly may 

adopt it; Article 161(8), which lists certain categories of decisions 

and their corresponding decision making rules, also does not specifically address adoption of amendments to section 4 of Annex IV. 

Turning to Article 161(8)(f) to determine the default rule for decisions within the authority of the Council for which the decision 

18 

making rule is not specified, the Council is to decide ‘‘by consensus’’ 

which subparagraph of Article 161(8) will apply. Section 3 of the 

Annex to the 1994 Agreement conflates subparagraphs (b) and (c) 

of Article 161(8), but it does not affect situations where the Convention, as in the case of 161(8)(f), provides for decision by consensus in the Council. Because the analysis is reasonably complex, 

the committee agrees with the Executive Branch that an understanding on this point is desirable. 

The twenty-fourth declaration relates to the question of whether 

the Convention and 1994 Agreement are self-executing in the 

United States. The committee has included a declaration that the 

Convention and the 1994 Agreement, including amendments thereto and rules, regulations, and procedures thereunder, are not selfexecuting for the United States, with the exception of provisions related to privileges and immunities (Articles 177-183, Article 13 of 

Annex IV, and Article 10 of Annex VI). Consistent with the view 

of both the committee and the Executive Branch, the Convention 

and 1994 Agreement, including the environmental provisions of the 

Convention, do not create private rights of action or other enforceable individual legal rights in U.S. courts. The United States, as 

a Party, would be able to implement the Convention through existing laws, regulations, and practices (including enforcement practices), which are consistent with the Convention and which would 

not need to change in order for the United States to meet its Convention obligations. Except as noted in connection with declaration 

twenty-two above, the United States does not need to enact any 

new legislation to supplement or modify existing U.S. law. 

Section four of the resolution contains five conditions that relate 

to procedures within the United States for considering amendments proposed to be made to the Convention. The first three conditions provide for the President to inform and consult with the 

Foreign Relations Committee about proposed amendments to the 

Convention. The fourth condition provides that all amendments to 

the Convention, other than amendments under Article 316(5) of the 

Convention of a technical or administrative nature, shall be submitted by the President to the Senate for its advice and consent. 

The committee expects that any such technical or administrative 

amendments would not impose substantive obligations upon the 

United States. 

The fifth condition relates to Article 316(5) of the Convention, 

which provides for any amendment relating exclusively to activities 

in the Area (which is defined in Article 1(1)(1)) and any amendment to Annex VI to enter into force for all States Parties one year 

following the deposit of instruments of ratification or accession by 

three fourths of the States Parties. There is thus a possibility that 

such an amendment, if adopted (which would require the consent 

or acquiescence of the U.S. Executive Branch via the U.S. representative on the Council), could enter into force for the United 

States without U.S. ratification. The declaration provides that the 

United States will take all necessary steps under the Convention 

to ensure that amendments subject to this procedure are adopted 

in conformity with the treaty clause in Article II, Section 2 of the 

Constitution. This might involve not joining in consensus if an 

amendment were of such a nature that it was constitutionally imperative that it receive Senate advice and consent before binding 

19 

the United States. The declaration highlights the amendment procedure but does not specifically address under what circumstances 

a constitutional issue might arise. 

VIII. TEXT OF RESOLUTION OF ADVICE AND CONSENT TO RATIFICATION

Resolved (two-thirds of the Senators present concurring therein), 

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO DECLARATIONS AND UNDERSTANDINGS. 

The Senate advises and consents to the accession to the United 

Nations Convention on the Law of the Sea, with annexes, adopted 

on December 10, 1982 (hereafter in this resolution referred to as 

the ‘‘Convention’’), and to the ratification of the Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea, with annex, adopted on July 28, 

1994 (hereafter in this resolution referred to as the ‘‘Agreement’’) 

(T.Doc. 103–39), subject to the declarations of section 2, to be made 

under articles 287 and 298 of the Convention, the declarations and 

understandings of section 3, to be made under article 310 of the 

Convention, and the conditions of section 4. 

SECTION 2. DECLARATIONS UNDER ARTICLES 287 AND 298. 

The advice and consent of the Senate under section 1 is subject 

to the following declarations: 

(1) 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 subparagraph (A). 

(2) The Government of the United States of America declares, in 

accordance with article 298(1), that it does not accept any of the 

procedures provided for in section 2 of Part XV (including, inter 

alia, the Seabed Disputes Chamber procedure referred to in article 

287(2)) with respect to the categories of disputes set forth in subparagraphs (a), (b), and (c) of article 298(1). The United States further declares that its consent to accession to the Convention is conditioned upon the understanding that, under article 298(1)(b), each 

State Party has the exclusive right to determine whether its activities are or were ‘‘military activities’’ and that such determinations 

are not subject to review. 

SECTION 3. OTHER DECLARATIONS AND UNDERSTANDINGS UNDER 

ARTICLE 310. 

The advice and consent of the Senate under section 1 is subject 

to the following declarations and understandings: 

(1) The United States understands that nothing in the Convention, including any provisions referring to ‘‘peaceful uses’’ or ‘‘peaceful purposes,’’ impairs the inherent right of individual or collective 

self-defense or rights during armed conflict. 

20 

(2) The United States understands, with respect to the right of 

innocent passage under the Convention, that— 

(A) all ships, including warships, regardless of, for example, 

cargo, armament, means of propulsion, flag, origin, destination, 

or purpose, enjoy the right of innocent passage; 

(B) article 19(2) contains an exhaustive list of activities that 

render passage non-innocent; 

(C) any determination of non-innocence of passage by a ship 

must be made on the basis of acts it commits while in the territorial sea, and not on the basis of, for example, cargo, armament, means of propulsion, flag, origin, destination, or purpose; 

and 

(D) the Convention does not authorize 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. 

(3) The United States understands, concerning Parts III and IV 

of the Convention, that— 

(A) all ships and aircraft, including warships and military 

aircraft, regardless of, for example, cargo, armament, means of 

propulsion, flag, origin, destination, or purpose, are entitled to 

transit passage and archipelagic sea lanes passage in their 

‘‘normal mode’’; 

(B) ‘‘normal mode’’ includes, inter alia— 

(i) submerged transit of submarines; 

(ii) overflight by military aircraft, including in military 

formation; 

(iii) activities necessary for the security of surface warships, such as formation steaming and other force protection measures; 

(iv) underway replenishment; and 

(v) the launching and recovery of aircraft; 

(C) the words ‘‘strait’’ and ‘‘straits’’ are not limited by geographic names or categories and include all waters not subject 

to Part IV that separate one part of the high seas or exclusive 

economic zone from another part of the high seas or exclusive 

economic zone or other areas referred to in article 45; 

(D) the term ‘‘used for international navigation’’ includes all 

straits capable of being used for international navigation; and 

(E) the right of archipelagic sea lanes passage is not dependent upon the designation by archipelagic States of specific sea 

lanes and/or air routes and, in the absence of such designation 

or if there has been only a partial designation, may be exercised through all routes normally used for international navigation. 

(4) The United States understands, with respect to the exclusive 

economic zone, that— 

(A) all States enjoy high seas freedoms of navigation and 

overflight and all other internationally lawful uses of the sea 

related to these freedoms, including, inter alia, military activities, such as anchoring, launching and landing of aircraft and 

other military devices, launching and recovering water-borne 

craft, operating military devices, intelligence collection, surveillance and reconnaissance activities, exercises, operations, and 

conducting military surveys; and 

21 

(B) coastal State actions pertaining to these freedoms and 

uses must be in accordance with the Convention. 

(5) The United States understands that ‘‘marine scientific research’’ does not include, inter alia— 

(A) prospecting and exploration of natural resources; 

(B) hydrographic surveys; 

(C) military activities, including military surveys; 

(D) environmental monitoring and assessment pursuant to 

section 4 of Part XII; or 

(E) activities related to submerged wrecks or objects of an archaeological and historical nature. 

(6) The United States understands that any declaration or statement purporting to limit navigation, overflight, or other rights and 

freedoms of all States in ways not permitted by the Convention 

contravenes the Convention. Lack of a response by the United 

States to a particular declaration or statement made under the 

Convention shall not be interpreted as tacit acceptance by the 

United States of that declaration or statement. 

(7) The United States understands that nothing in the Convention limits the ability of a State to prohibit or restrict imports of 

goods into its territory in order to, inter alia, promote or require 

compliance with environmental and conservation laws, norms, and 

objectives. 

(8) The United States understands that articles 220, 228, and 

230 apply only to pollution from vessels (as referred to in article 

211) and not, for example, to pollution from dumping. 

(9) The United States understands, with respect to articles 220 

and 226, that the ‘‘clear grounds’’ requirement set forth in those articles is equivalent to the ‘‘reasonable suspicion’’ standard under 

United States law. 

(10) The United States understands, with respect to article 

228(2), that— 

(A) the ‘‘proceedings’’ referred to in that paragraph are the 

same as those referred to in article 228(1), namely those proceedings in respect of any violation of applicable laws and regulations or international rules and standards relating to the 

prevention, reduction and control of pollution from vessels committed by a foreign vessel beyond the territorial sea of the 

State instituting proceedings; and 

(B) fraudulent concealment from an officer of the United 

States of information concerning such pollution would extend 

the three-year period in which such proceedings may be instituted. 

(11) The United States understands, with respect to article 230, 

that— 

(A) it applies only to natural persons aboard the foreign vessels at the time of the act of pollution; 

(B) the references to ‘‘monetary penalties only’’ exclude only 

imprisonment and corporal punishment; 

(C) the requirement that an act of pollution be ‘‘willful’’ in 

order to impose non-monetary penalties would not constrain 

the imposition of such penalties for pollution caused by gross 

negligence; 

(D) in determining what constitutes a ‘‘serious’’ act of pollution, a State may consider, as appropriate, the cumulative or 

22 

aggregate impact on the marine environment of repeated acts 

of pollution over time; and 

(E) among the factors relevant to the determination whether 

an act of pollution is ‘‘serious,’’ a significant factor is non-compliance with a generally accepted international rule or standard. 

(12) The United States understands that sections 6 and 7 of Part 

XII do not limit the authority of a State to impose penalties, monetary or non-monetary, for, inter alia— 

(A) non-pollution offenses, such as false statements, obstruction of justice, and obstruction of government or judicial proceedings, wherever they occur; or 

(B) any violation of national laws and regulations or applicable international rules and standards for the prevention, reduction and control of pollution of the marine environment that occurs while a foreign vessel is in any of its ports, rivers, harbors, or offshore terminals. 

(13) The United States understands that the Convention recognizes and does not constrain the longstanding sovereign right of a 

State to impose and enforce conditions for the entry of foreign vessels into its ports, rivers, harbors, or offshore terminals, such as a 

requirement that ships exchange ballast water beyond 200 nautical 

miles from shore or a requirement that tank vessels carrying oil be 

constructed with double hulls. 

(14) The United States understands, with respect to article 21(2), 

that measures applying to the ‘‘design, construction, equipment or 

manning’’ do not include, inter alia, measures such as traffic separation schemes, ship routing measures, speed limits, quantitative 

restrictions on discharge of substances, restrictions on the discharge and/or uptake of ballast water, reporting requirements, and 

record-keeping requirements. 

(15) The United States understands that the Convention supports a coastal State’s exercise of its domestic authority to regulate 

discharges into the marine environment resulting from industrial 

operations on board a foreign vessel. 

(16) The United States understands that the Convention supports a coastal State’s exercise of its domestic authority to regulate 

the introduction into the marine environment of alien or new species. 

(17) The United States understands that, with respect to articles 

61 and 62, a coastal State has the exclusive right to determine the 

allowable catch of the living resources in its exclusive economic 

zone, whether it has the capacity to harvest the entire allowable 

catch, whether any surplus exists for allocation to other States, and 

to establish the terms and conditions under which access may be 

granted. The United States further understands that such determinations are, by virtue of article 297(3)(a), not subject to binding 

dispute resolution under the Convention. 

(18) The United States understands that article 65 of the Convention lent direct support to the establishment of the moratorium 

on commercial whaling, supports the creation of sanctuaries and 

other conservation measures, and requires States to cooperate not 

only with respect to large whales, but with respect to all cetaceans. 

(19) The United States understands that, with respect to article 

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23 

ulations to protect human health from, inter alia, pathogens being 

introduced into the territorial sea. 

(20) The United States understands that decisions of the Council 

pursuant to procedures other than those set forth in article 

161(8)(d) will involve administrative, institutional, or procedural 

matters and will not result in substantive obligations on the United 

States. 

(21) The United States understands that decisions of the Assembly under article 160(2)(e) to assess the contributions of members 

are to be taken pursuant to section 3(7) of the Annex to the Agreement and that the United States will, pursuant to section 9(3) of 

the Annex to the Agreement, be guaranteed a seat on the Finance 

Committee established by section 9(1) of the Annex to the Agreement, so long as the Authority supports itself through assessed 

contributions. 

(22) The United States declares, pursuant to article 39 of Annex 

VI, that decisions of the Seabed Disputes Chamber shall be enforceable in the territory of the United States only in accordance 

with procedures established by implementing legislation and that 

such decisions shall be subject to such legal and factual review as 

is constitutionally required and without precedential effect in any 

court of the United States. 

(23) The United States— 

(A) understands that article 161(8)(f) applies to the Council’s 

approval of amendments to section 4 of Annex VI; 

(B) declares that, under that article, it intends to accept only 

a procedure that requires consensus for the adoption of amendments to section 4 of Annex VI; and 

(C) in the case of an amendment to section 4 of Annex VI 

that is adopted contrary to this understanding, that is, by a 

procedure other than consensus, will consider itself bound by 

such an amendment only if it subsequently ratifies such 

amendment pursuant to the advice and consent of the Senate. 

(24) The United States declares that, with the exception of 

articles 177–183, article 13 of Annex IV, and article 10 of 

Annex VI, the provisions of the Convention and the Agreement, including amendments thereto and rules, regulations, 

and procedures thereunder, are not self-executing. 

SECTION 4. CONDITIONS. 

(a) IN GENERAL.—The advice and consent of the Senate under 

section 1 is subject to the following conditions: 

(1) Not later than 15 days after the receipt by the Secretary 

of State of a written communication from the Secretary-General of the United Nations or the Secretary-General of the Authority transmitting a proposal to amend the Convention pursuant to article 312, 313, or 314, the President shall submit to 

the Committee on Foreign Relations of the Senate a copy of the 

proposed amendment. 

(2) Prior to the convening of a Conference to consider amendments to the Convention proposed to be adopted pursuant to 

article 312 of the Convention, the President shall consult with 

the Committee on Foreign Relations of the Senate on the 

amendments to be considered at the Conference. The President 

shall also consult with the Committee on Foreign Relations of 

24 

the Senate on any amendment proposed to be adopted pursuant to article 313 of the Convention. 

(3) Not later than 15 days prior to any meeting— 

(A) of the Council of the International Seabed Authority 

to consider an amendment to the Convention proposed to 

be adopted pursuant to article 314 of the Convention; or 

(B) of any other body under the Convention to consider 

an amendment that would enter into force pursuant to article 316(5) of the Convention; the President shall consult 

with the Committee on Foreign Relations of the Senate on 

the amendment and on whether the United States should 

object to its adoption. 

(4) All amendments to the Convention, other than 

amendments under article 316(5) of a technical or administrative nature, shall be submitted by the President to the 

Senate for its advice and consent. 

(5) The United States declares that it shall take all necessary steps under the Convention to ensure that amendments under article 316(5) are adopted in conformity with 

the treaty clause in Article II, section 2 of the United 

States Constitution. 

(b) INCLUSION OF CERTAIN CONDITIONS IN INSTRUMENT OF RATI- FICATION.—Conditions 4 and 5 shall be included in the United 

States instrument of ratification to the Convention. 

IX. MINORITY VIEWS

MINORITY VIEWS OF SENATORS DEMINT AND VITTER

Ronald Reagan Biographer Dinesh D’Souza tells of an incident 

that occurred only a few weeks after Reagan was elected president: 

According to aides who were present at the meeting, 

Reagan was asked by Alexander Haig, his new Secretary 

of State, to approve continuing negotiations for the Law of 

the Sea treaty. Reagan said he would not support the treaty and asked that negotiations be suspended. 

Incredulous, Haig tried to make him see the light by 

pointing out that discussions had been ongoing for years 

and that every recent president and virtually all leading 

figures in both Parties accepted the general framework of 

the treaty. 

‘‘Well, yes,’’ Reagan said, ‘‘but you see, Al, that’s what 

the last election was all about.’’ 

‘‘About the Law of the Sea treaty?’’ Haig sneered. 

‘‘No,’’ Reagan replied. ‘‘It was about not doing things just 

because that’s the way they’ve been done before.’’ 

Since that time, proponents have attempted to paint Reagan’s objections as limited in scope, focused on a few minor changes to the 

seabed mining section. Meanwhile, key Reagan advisers like Ed 

Meese, Jeanne Kirkpatrick and James Malone have countered that 

his concerns were much more broad, relating to the fundamental 

collectivist philosophy embodied in the treaty. They suggested that 

even if the seabed mining regime was fixed or even deleted altogether, Reagan would still not have signed it. Who is correct? 

For a quarter century, this question has gone unanswered. However, we now have new insights, with the release of The Reagan 

25 

Diaries. On page 90, we find the answer in President Reagan’s own 

hand— 

Tuesday, June 29 [1982]. Decided in NSC meeting—will 

not sign ‘‘Law of the Sea’’ Treaty even without seabed mining provisions. 

Reagan’s concerns with the treaty were summed up in a 1984 article written by his chief Law of the Sea Negotiator, James Malone. 

The Law of the Sea Treaty’s provisions establishing the 

deep seabed mining regime were intentionally designed to 

promote a new world order—a form of global collectivism 

known as the new international economic order (NIEO) 

that seeks ultimately the redistribution of the world’s 

wealth through a complex system of manipulative central 

economic planning and bureaucratic coercion. 

This applies not only to the seabed mining regime, but to all of 

the treaty with the exception of a few provisions dealing with navigation. In 1995, Commenting on the 1994 Agreement, Ambassador 

Malone reiterated his earlier criticism: 

This remains the case today. All the provisions from the 

past that make such a [new world order] outcome possible, 

indeed likely, still stand. It is not true, as argued by some, 

and frequently mentioned, that the U.S. rejected the Convention in 1982 solely because of technical difficulties with 

Part XI. The collectivist and redistributionist provisions of 

the treaty were at the core of the U.S. refusal to sign. 

We believe certain provisions of the United Nations Convention 

on the Law of the Sea, particularly those dealing with navigation, 

have merit. We further appreciate the Navy’s interest in the treaty. 

However, the navigation provisions are primarily limited to the 

first 4 parts—11 pages out of a 188 page treaty. The rest establishes a massive bureaucracy to govern the seas and anything that 

can be construed to impact the seas—even if the impact is de minimus. 

Taxes.—Article 13 imposes direct ‘‘fees’’ on United States’ corporations engaged in seabed mining. Article 82 requires ‘‘payments’’ of up to 7 percent for drilling on the outer continental shelf 

(OCS). The United States would be assessed for 7 percent of any 

oil, natural gas, or other resources derived by OCS exploration. The 

payments would be made directly to the Authority, which would redistribute the money to the other signatory nations. We believe it 

is unwise to create an international organization with taxing authority. 

Land-Based Sources of Pollution.—Articles 194, 207, and 213 

specifically apply the treaty’s provisions to land-based sources of 

pollution. These provisions were tested in the ‘‘MOX case.’’ In the 

case, Ireland sued England over a land-based nuclear power plant, 

and the International Tribunal on the Law of the Sea asserted jurisdiction over the case. In his letter of submittal, found on the first 

page of the treaty document, President Clinton reinforces this 

point. 

As a far-reaching environmental accord addressing vessel source pollution, pollution from seabed activities, ocean 

dumping and land-based sources of marine pollution, the 

26 

Convention promotes continuing improvement in the 

health of the world’s oceans. 

There is almost no limit to what any smart international lawyer 

could do with these pollution provisions. Further, the United States 

has demonstrated historically that it takes its treaty obligations seriously. Other nations have not done the same. Why should we 

bind ourselves to a treaty that will handcuff our economy, while 

other nations will simply ignore the rules? The Senate has voted 

to reject the Kyoto Agreement for these same reasons; we should 

reject this backdoor Kyoto now. 

UN Secretary General Picks Arbitrators.—If ratified, the United 

States has stated it will select binding arbitration if disputes arise. 

Under Annex VIII, Article 3, in the likely event that Parties to a 

dispute cannot agree on arbitrators, they are selected by the Secretary General of the United Nations. This was confirmed by key 

witnesses in support of the treaty. 

It is puzzling why we would want to submit to a judicial authority selected by the United Nations, given the organization’s corruption scandals, and the fact that of the 152 countries Party to the 

treaty, the median voting coincidence with the United States in the 

2006 General Assembly was less than 20 percent. This treaty subjects the United States to a governing body that is hostile to American interests. 

Nations Vote Against U.S. interests.—Like the United Nations, 

the US would be ′′assessed′′ for 22 percent of the operations, even 

though we only have one vote in the 152 nation assembly, and no 

veto. The American people have lost confidence in Congress. Handing over sovereignty to a new international body with the power to 

tax and regulate American citizens and businesses will not help restore that confidence. 

Military Activities.—The treaty reserves the sea for ‘‘peaceful 

purposes’’ and creates a labyrinth of regulations and restrictions on 

acceptable activities. We are worried that the treaty could be used 

to inhibit legitimate military and intelligence activities. The Resolution of Ratification highlights the vagueness of Article 298(1)(b), 

suggesting that each State Party has the exclusive right to determine whether its activities are or were ‘‘military activities’’ and 

that such determinations are not subject to review. However, this 

is not stated in the treaty, and therefore it is our belief that the 

court or tribunal will likely make its own decision as to what constitutes a ′′military activity′′ notwithstanding the non-binding understandings included in the Resolution. 

Intelligence Gathering Activities.—The Treaty fails to clearly include intelligence, surveillance, and reconnaissance activities under 

‘‘military activities.’’ While administrations have stated that these 

terms are covered, the United States Senate and House of Representatives consider these separate functions and have different 

committees that oversee the intelligence community and the armed 

services. When there is a disagreement on terms, this disagreement 

is settled by the courts. 

In addition, under Article 19 foreign ships may be denied passage through a coastal state’s Territorial Sea if it engages in a 

number of activities, including any act aimed at collecting information to the prejudice or security of the coastal state; the carrying 

27 

out of research or survey activities; any other activity not having 

a direct bearing on passage. These are activities that would be necessary for the United States to collect intelligence information that 

could be crucial to our self-defense. 

Article 20 further limits the ability of the United States to collect 

intelligence: in the Territorial Sea, submarines and other underwater vehicles are required to navigate on the surface and must 

show their flag. Under the treaty, the United States would have to 

surface the submarine, and fly a conspicuous American flag, so that 

everyone would know that an American submarine was in the vicinity. The Treaty fails to protect the significant role submarines 

have played, especially during the Cold War, in gathering intelligence very close to foreign shorelines. 

(29) 

A N N E X 

Letters From Other Senate Committees 

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