¹ Compact of Free Association, Oct. 1, 1982, United States-Federated States of Micronesia, and June 25, 1983, United States-Republic of the Marshall Islands, approved by Pub. L. No. 99r239, 99 Stat. 1770 (1986) (entered into force Nov. 3, 1986, and Oct. 21, 1986, respectively). See further 81 AJIL 405 (1987).

² For the exchanges of notes, see Dept. of State File Nos. P89 0129-2003/2006 (Federated States of Micronesia) and P89 0129-2007/2010 (Republic of the Marshall Islands).

³ Agreement to Amend the Governmental Representation Provisions of the Compact of Free Association Pursuant to Section 432 of the Compact, Mar. 9, 1988, United States-Federated States of Micronesia, Dept. of State File No. P89 0129-2012; identical Agreement, United States-Republic of the Marshall Islands, Mar. 18, 1988, id., No. P89 0129-2017.

Section 151 of the Compact had originally provided for the Governments to establish and maintain representative offices in each other’s capital “for the purpose of maintaining close and regular consultations on matters arising in the course of the relationship of free association and conducting other government business.” The 1988 amending agreements also deprived of effectiveness (i.e., superseded) §152 of the Compact (which detailed the privileges and immunities of the representative offices and the resident representatives); and they made necessary conforming changes in §461(g) of the Compact and in Article II, §7 of the agreement referred to in §462(e) thereof.

¹ Presidential Proclamation No. 5928, Dec. 27, 1988, extended the territorial sea of the United States to 12 nautical miles from the baselines of the United States, determined “in accordance with international law.” It specifically affirmed that ships of all nations enjoy the right of innocent passage in U.S. territorial waters. 54 Fed. Reg. 777 (1989).

² Dept. St. Bull., No. 2151, November 1989, at 25–26.

³ Id. at 26. For the Convention on the Law of the Sea, opened for signature Dec. 10, 1982, see United Nations, The Law of the Sea: 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).

⁴ See N.Y. Times, Feb. 13, 1988, at 1, col. 1 (late ed.); Wash. Post, Feb. 13, 1988, at A23, col. 1 (final ed.).

⁵ See Rules for Navigation and Sojourn of Foreign Warships in the Territorial and Internal Waters and Ports of the U.S.S.R., Art. 12, translated in 24 ILM 1715, 1717 (1985).

⁶ Dept. of State CIRCTEL [to all diplomatic posts] No. 311861 (Sept. 28, 1989).

In December 1988, the Department of State described the U.S. Freedom of Navigation Program in GIST (a “quick reference aid on U.S. foreign relations”), in part as follows:

Background: US interests span the world’s oceans geopolitically and economically. US national security and commerce depend greatly upon the internationally recognized legal rights and freedoms of navigation and overflight of the seas. Since World War II, more than 75 coastal nations have asserted various maritime claims that threaten those rights and freedoms. These “objectionable claims” include unrecognized historic waters claims; improperly drawn baselines for measuring maritime claims; territorial sea claims greater than 12 nautical miles; and territorial sea claims that impose impermissible restrictions on the innocent passage of military and commercial vessels, as well as ships owned or operated by a state and used only on government noncommercial service.

US policy: The US is committed to protecting and promoting rights and freedoms of navigation and overflight guaranteed to all nations under international law. One way in which the US protects these maritime rights is through the US Freedom of Navigation Program. The program combines diplomatic action and operational assertion of our navigation and overflight rights by means of exercises to discourage state claims inconsistent with international law and to demonstrate US resolve to protect navigational freedoms. The Departments of State and Defense are jointly responsible for conducting the program.

The program started in 1979, and President Reagan again outlined our position in an ocean policy statement in March 1983:

… the United States will exercise and assert its navigation and overflight rights and freedoms on a worldwide basis in a manner that is consistent with the balance of interests reflected in the [1982 UN Convention on the Law of the Sea]. The United States will not, however, acquiesce in unilateral acts of other states designed to restrict the rights and freedoms of the international community in navigation and overflight and other related high seas uses.

The US considers that the customary rules of international law affecting maritime navigation and overflight freedoms are reflected and stated in the applicable provisions of the 1982 UN Convention on the Law of the Sea.

Nature of the program: The Freedom of Navigation Program is a peaceful exercise of the rights and freedoms recognized by international law and is not intended to be provocative. The program impartially rejects excessive maritime claims of allied, friendly, neutral, and unfriendly states alike. Its objective is to preserve and enhance navigational freedoms on behalf of all states.

Diplomatic action: Under the program, the US undertakes diplomatic action at several levels to preserve its rights under international law. It conducts bilateral consultations with many coastal states stressing the need for and obligation of all states to adhere to the international law customary rules and practices reflected in the 1982 convention. When appropriate, the Department of State files formal diplomatic protests addressing specific maritime claims that are inconsistent with international law. Since 1948, the US has filed more than 70 such protests, including more than 50 since the Freedom of Navigation Program began.

Operational assertions: Although diplomatic action provides a channel for presenting and preserving US rights, the operational assertion by US naval and air forces of internationally recognized navigational rights and freedoms complements diplomatic efforts. Operational assertions tangibly manifest the US determination not to acquiesce in excessive claims to maritime jurisdiction by other countries. Planning for these operations includes careful interagency review. Although some operations asserting US navigational rights receive intense public scrutiny (such as those that have occurred in the Black Sea and the Gulf of Sidra), most do not. Since 1979, US military ships and aircraft have exercised their rights and freedoms in all oceans against objectionable claims of more than 35 nations at the rate of some 30–40 per year.

Dept. of State File No. P89 0125-2147.

⁷ Dept. of State CIRCTEL, supra note 6.

¹ For the text, see Dept. of State File No. P89 0135-1666/75.

A background statement pursuant to the Case Act, prepared in the Office of the Legal Adviser of the Department of State, was transmitted to the President of the Senate, the Chairman of the Senate Committee on Foreign Relations and the Speaker of the House of Representatives under date of Oct. 26, 1989 (the text of the Agreement had been transmitted under date of Aug. 31, 1989). It included the following information on the negotiation of the Agreement:

Negotiations were conducted with the Soviets over a 2½ year period by State Department and U.S. Coast Guard officials under the auspices of the U.S.-U.S.S.R. Agreement on Cooperation in the Field of Environmental Protection [May 23, 1972, TIAS No. 7345, 23 UST 845]. As a result of the potential for oil development in the Bering and Chukchi Seas, and tanker traffic associated with such development, the United States proposed the establishment of a joint procedure to deal with marine pollution incidents in October 1986. As a first step, the two sides established points of contact for reporting pollution incidents. Subsequently, the two sides agreed to have the United States develop a draft outline. Negotiations on the draft were held in the Soviet Union, July 31-August 8, 1987, and in the United States from May 10–22, 1988. Negotiations were reviewed during the U.S.-U.S.S.R. summit meeting in May 1988, and negotiators were instructed in the Joint Statement following that meeting to accelerate efforts to achieve a mutually acceptable agreement. [See Dept. St. Bull., No. 2137, August 1988, at 25, 29.] Negotiators finalized the text of the Agreement in October 1988 and the Plan in January 1989.

Dept. of State File No. P89 0135-1676/1677.

¹ S. Treaty Doc. No. 6, 101st Cong., 1st Sess., at (V)–(VI) (1989).

¹ S. Treaty Doc. No. 5, 101st Cong., 1st Sess., at III–V (1989).