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The 1994 Agreement and the Convention

Published online by Cambridge University Press:  27 February 2017

Bernard H. Oxman
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Extract

In June 1994, some twelve years after the conclusion of the Third UN Conference on the Law of the Sea, the UN Secretary-General reported to the General Assembly that informal consultations had led to agreements that appeared to have removed the obstacles to general adherence to the 1982 UN Convention on the Law of the Sea.

Type
Law of the Sea Forum: The 1994 Agreement on Implementation of the Seabed Provisions of the Convention on the Law of the Sea
Information
American Journal of International Law , Volume 88 , Issue 4 , October 1994 , pp. 687 - 696
Copyright
Copyright © American Society of International Law 1994

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References

1 United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, UN Doc. A/CONF.62/122 (1982), reprinted in United Nations, Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index, UN Sales No. E.83.V.5 (1983) [hereinafter LOS Convention].

2 UN Doc. A/48/950 (1994).

3 GA Res. 48/263 (July 28, 1994). The new Agreement is annexed to the resolution, and is herein after cited as the Agreement. Russia abstained in the vote to adopt the resolution and Agreement on the grounds that the new provisions regarding pioneer investors discriminate in favor of the United States. The same objection to different provisions was proffered to explain the Soviet abstention in the vote in 1982 on adoption of the Convention by the Law of the Sea Conference.

4 Article 4 of the Agreement provides:

1. After the adoption of this Agreement, any instrument of ratification or formal confirmation of or accession to the Convention shall also represent consent to be bound by this Agreement.

2. No State or entity may establish its consent to be bound by this Agreement unless it has previously established or establishes at the same time its consent to be bound by the Convention.

Paragraph 5 of the resolution adopting the Agreement contains essentially the same language.

5 Pursuant to Article 7, pending entry into force of the Agreement, and absent written notification to the contrary by the state concerned, states that either consented to adoption of the Agreement in the General Assembly, or sign or adhere to the Agreement, or consent in writing to its provisional application “shall apply this Agreement provisionally in accordance with their national laws and regulations, with effect from 16 November 1994” or such later date as this obligation is applicable to them. Should the Agreement enter into force before November 16, 1998, provision is made for grace periods extending up to that date for states that have not completed the ratification process. Agreement, annex, sec. 1, para. 12.

6 The Reagan administration’s statements quoted hereinafter appear in the following documents: Statement by the President, U.S. Policy and the Law of the Sea, Jan. 29, 1982, Dept. St. Bull., Mar. 1982, at 54; White House Fact Sheet [accompanying Presidential Statement], Jan. 29, 1982, id. at 54–55; Statement by Ambassador James L. Malone, Special Representative of the President, before the House Merchant Marine and Fisheries Committee, Feb. 23, 1982, id., May 1982, at 61–63; Statement by the President, July 9, 1982, id., Aug. 1982, at 71; Statement by Ambassador James L. Malone, Special Representative of the President, before the House Foreign Affairs Committee, Aug. 12, 1982, id., Oct. 1982, at 48–50.

7 Statement by the President, Jan. 29, 1982, note 6 supra.

8 Statement by the Special Representative of the President, Feb. 23, 1982, note 6 supra.

9 Statement by the Special Representative of the President, Aug. 12, 1982, note 6 supra.

10 Statement by the President, Jan. 29, 1982, note 6 supra.

11 Statement by the Special Representative of the President, Feb. 23, 1982, note 6 supra.

12 Statement by the President, Jan. 29, 1982, note 6 supra. The White House Fact Sheet accompanying the President’s announcement of the six objectives in January 1982, and congressional testimony by the President’s special representative later that year, identified the elements in the Part XI regime that related to one or more of those objectives. Note 6 supra.

13 White House Fact Sheet, Jan. 29, 1982, note 6 supra.

14 Agreement, annex, sec. 3, paras. 1, 4.

15 Id., para. 4. Rules, regulations and procedures adopted by the Council on prospecting, exploration and exploitation and the financial and internal management of the Authority remain in effect provisionally until approved by the Assembly or amended by the Council in light of the Assembly’s views. LOS Convention, Art. 162, para. 2(o)(ii).

16 White House Fact Sheet, Jan. 29, 1982, note 6 supra.

17 Agreement, annex, sec. 3, para. 15(a).

18 LOS Convention, Art. 161, para. 8(d).

19 Id., para. 8(b), (c).

20 White House Fact Sheet, Jan. 29, 1982, note 6 supra.

21 Statement by the Special Representative of the President, Feb. 23, 1982, note 6 supra.

22 Agreement, annex, sec. 3, paras. 9, 10, 15.

23 Id., paras. 10, 15(a), (b). Major land-based producers and exporters of relevant minerals, such as Canada and Chile, would be represented in their own four-member chamber. Id., para. 15(c).

24 Id., para. 5.

25 Id., para. 7.

26 Id., sec. 9, paras. 3, 8.

27 Statement by the Special Representative of the President, Feb. 23, 1982, note 6 supra.

28 White House Fact Sheet, Jan. 29, 1982, note 6 supra.

29 Statement by the Special Representative of the President, Aug. 12, 1982, note 6 supra.

30 Statement by the Special Representative of the President, Feb. 23, 1982, note 6 supra.

31 Statement by the Special Representative of the President, Aug. 12, 1982, note 6 supra.

32 Agreement, annex, sec. 6, para. 7.

33 Id., paras. 1(b), (c), 3.

34 Id., para. 1(d).

35 Agreement, annex, sec. 8, para. 1(b).

36 White House Fact Sheet, Jan. 29, 1982, note 6 supra.

37 Statement by the Special Representative of the President, Aug. 12, 1982, note 6 supra.

38 Agreement, annex, sec. 5, para. 2.

39 Id., para. 1(b).

40 Statement by the Special Representative of the President, Feb. 23, 1982, note 6 supra.

41 Agreement, annex, sec. 6, para. 7.

42 LOS Convention, Art. 161, para. 8(d), Art. 162, para. 2(o)(ii); Ann. III, Art. 4, paras. 1, 2, Art. 17, para. 1(b)(xiv).

43 LOS Convention, Art. 162, para. 2(x); Ann. Ill, Art. 6, paras. 1–4, Art. 10; Agreement, annex, sec. 1, paras. 7, 13.

44 LOS Convention, Arts. 187, 188, 286–88, 290; Agreement, annex, sec. 3, para. 12.

45 Agreement, annex, sec. 3, para. 13; see LOS Convention, Arts. 163, 165.

46 Agreement, annex, sec. 3, para. 11(a).

47 30 U.S.C. §§1401–1473 (1988 & Supp. IV 1992).

48 Agreement, annex, sec. 1, para. 6(a)(i).

49 Id., para. 6(a)(iii).

50 Statement by the Special Representative of the President, Feb. 23, 1982, note 6 supra.

51 Agreement, annex, sec. 1, para. 15(b).

52 Id., para. 15(c).

53 White House Fact Sheet, Jan. 29, 1982, note 6 supra.

54 Statement by the Special Representative of the President, Feb. 23, 1982, note 6 supra.

55 Agreement, annex, sec. 2, para. 4.

56 Id., para. 2.

57 Agreement, annex, sec. 2, para. 4, sec. 6, paras. 1(a)–(c), 3.

58 Id., sec. 2, para. 3.

59 See notes 32, 38 supra.

60 Agreement, annex, sec. 1, para. 10.

61 Id., sec. 2, para. 5.

62 White House Fact Sheet, Jan. 29, 1982, note 6 supra.

63 Agreement, annex, sec. 8, paras. 2, 3; LOS Convention, Ann. III, Art. 13, para. 2.

64 Agreement, annex, sec. 3, para. 7, sec. 8, para. 1, sec. 9, paras. 7, 8; LOS Convention, Art. 161, para. 8(d), Art. 162, para. 2(o)(ii).

65 Agreement, annex, sec. 2, para. 3, sec. 7, para. 1(a); see LOS Convention, Art. 173.

66 Agreement, annex, sec. 1, paras. 2–5, sec. 2, paras. 1–2.

67 Id., sec. 3, paras. 4, 7, sec. 9, para. 8.

68 White House Fact Sheet, Jan. 29, 1982, note 6 supra.

69 Agreement, annex, sec. 1, para. 9; see notes 32, 38 supra.

70 See notes 14, 15, 17, 22–26 supra.

71 LOS Convention, Art. 153, para. 6, Arts. 187–88; Ann. III, Arts. 1, 10, 16, 18(3), 19(2), 21; Agreement, annex, sec. 1, para. 13.

72 LOS Convention, Art. 160, para. 2(f)(i), Art. 172, para. 2(o)(i).

73 Statement by the Special Representative of the President, Aug. 12, 1982, note 6 supra.

74 LOS Convention, Art. 161, para. 8(d), Art. 173; Agreement, annex, sec. 3, para. 7, sec. 9, paras. 7(f), 8.

75 White House Fact Sheet, Jan. 29, 1982, note 6 supra.

76 Agreement, annex, sec. 4.

77 LOS Convention, Art. 161, para. 8(d), Art. 314, para. 1.

78 See John R. Stevenson & Bernard H. Oxman, The Future of the United Nations Convention on the Law of the Sea, 88 AJIL 488 (1994) and papers cited in note 3 thereof.