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U.S. Provisional Application of the 1994 Deep Seabed Agreement

Published online by Cambridge University Press:  27 February 2017

Jonathan I. Charney
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Extract

On July 28, 1994, the United States voted at the United Nations General Assembly in favor of a resolution endorsing the new Agreement that essentially amends the deep seabed regime (Part XI) of the 1982 Convention on the Law of the Sea and calls on states to ratify the Convention. Shortly thereafter, it signed the new Agreement. Plans call for the Convention to be submitted to the Senate for its advice and consent to ratification in October 1994 and for hearings to be held during the next Congress in the spring of 1995. By signing the Agreement, the United States will provisionally apply the deep seabed regime, as amended, until the United States becomes a party to the Convention or decides not to do so. In this paper I examine whether such provisional application is appropriate under the U.S. system of government.

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. 705 - 714
Copyright
Copyright © American Society of International Law 1994

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References

1 GA Res. 48/263 (July 28, 1994). The resolution was proposed by Fiji and a long list of sponsors, including the United States. Fiji: draft resolution, Law of the Sea, UN Doc. A/48/L.60 (June 22, 1994). The Agreement is attached to the resolution. The vote was 121 states in favor, none opposed, with 7 abstentions (Colombia, Nicaragua, Panama, Peru, Russia, Thailand and Venezuela). See Testimony of Secretary of State Warren Christopher (June 30, 1994), available in LEXIS, Fed. News Library; letter from U.S. Secretary of State Warren Christopher to Chairman of the U.S. Senate Foreign Relations Committee Claiborne Pell (June 30, 1994), 140 Cong. Rec. S8095 (daily ed. June 30, 1994).

This decision of the United States is a result of its analysis of the Draft Resolution for Adoption by the General Assembly and Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, in Report of the Secretary-General on his consultations on outstanding issues relating to the deep seabed mining provisions of the United Nations Convention on the Law of the Sea, Annex (draft of June 9, 1994), UN Doc. A/48/950 (June 9, 1994) [hereinafter Agreement].

See United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, Preamble, 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].

See also David A. Colson, Testimony, in The Law of the Sea Treaty and Reauthorization of the Deep Seabed Hard Mineral Resources Act: Hearing Before the Senate Comm. on Foreign Relations, 103d Cong., 2d Sess. (Aug. 11, 1994).

2 As of August 19, 1994, there were 48 signatories to the Agreement. Signature of the Agreement, Oceans Pol’y News, Aug. 1994, at 2, 3. Twenty-nine of those signed subject to ratification; 12 will not apply it provisionally unless further action is taken on their part. See also Colson, supra note 1.

3 State Department Regular Briefing, David Colson, Assistant Secretary for Oceans and Fisheries (July 16, 1994), available in LEXIS, Fed. News Library.

4 Agreement, supra note 1, Art. 2.

5 Id., Art. 7.

6 Id., Art. 7(1)(c) & (2).

7 Id., annex, sec. 1, para. 12(a) & (b).

8 Agreement, supra note 1, Art. 7(1)(c). The authority of states to apply international agreements provisionally is clear. Thus, Article 25(1) of the Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 1155 UNTS 331, states: “A treaty or part of a treaty is applied provisionally pending its entry into force if: (a) the treaty itself so provides; or (b) the negotiating States have in some other manner so agreed.” See also Restatement (Third) of the Foreign Relations Law of the United States §312 comment h (1987) [hereinafter Restatement].

9 For studies of provisional application, see Congressional Research Service, Library of Congress, 93d Cong., 2d Sess., Law of the Sea Treaty: Alternative Approaches to Provisional Application (Comm. Print 1974); Martin A. Rogoff & Barbara E. Gauditz, The Provisional Application of International Agreements, 39 Me. L. Rev. 29, 53–80 (1987). These studies identify many agreements that entered into force provisionally and show that Congress has expressed support for provisional application of international agreements by the executive branch in a wide variety of ways.

10 343 U.S. 579, 635–38 (1952).

11 453 U.S. 654, 668–69 (1981).

12 See Restatement, supra note 8, §303; Louis Henkin, Foreign Affairs and the Constitution 173–87 (1972).

13 For congressional consideration of the law of the sea negotiations, see Law of the Sea and Peaceful Uses of the Seabeds (92d Cong., 2d Sess. (1972)); Oceanography Miscellaneous (92d Cong., 2d Sess. (1972)); Law of the Sea (92d Cong., 2d Sess. (1972)); Endorsing Objectives for a Just and Effective Ocean Treaty (H.R. Rep. No. 96, 93d Cong., 1st Sess. (1973)); U.S. Oceans Policy (93d Cong., 1st Sess. (1973)); U.S. Oceans Policy (S. Rep. No. 296, 93d Cong., 1st Sess. (1973)); Mineral Resources of the Deep Seabed (93d Cong., 1st Sess. (1973)); Deep Seabed Hard Minerals (93d Cong., 1st Sess.; 93d Cong., 2d Sess. (1973, 1974)); Status Report on Law of the Sea Conference (93d Cong., 1st Sess. (1973)); Mineral Resources of the Deep Seabed, Part 2 (93d Cong., 2d Sess. (1974)); Status Report on Law of the Sea Conference, Part 2 (93d Cong., 2d Sess. (1974)); Status of the U.N. Law of the Sea Conference (93d Cong., 2d Sess. (1974)); Oceanography Miscellaneous (93d Cong., 2d Sess. (1974)); Fisheries Jurisdiction (94th Cong., 1st Sess. (1975)); Geneva Session of the Third United Nations Law of the Sea Conference (94th Cong., 1st Sess. (1975)); Law of the Sea (94th Cong., 1st Sess. (1975)); Status Report on Law of the Sea Conference, Part 3 (94th Cong., 1st Sess. (1975)); Two-Hundred-Mile Fishing Zone (94th Cong., 1st Sess. (1975)); Potential Impact of the Proposed 200-Mile Fishing Zone on U.S. Foreign Relations (94th Cong., 1st Sess. (1975)); Status Report on Law of the Sea Conference, Part 4 (94th Cong., 1st Sess. (1975)); Mineral Resources of the Deep Seabed (94th Cong., 2d Sess. (1976)); Deep Seabed Mining (94th Cong., 1st Sess.; 94th Cong., 2d Sess. (1975, 1976)); Deep Seabed Hard Minerals Act (94th Cong., 2d Sess. (1976)); Law of the Sea (94th Cong., 2d Sess. (1976)); Status Report on Law of the Sea Conference, Part 5 (94th Cong., 2d Sess. (1976)); National Ocean Policy (94th Cong., 2d Sess. (1976)); Law of the Sea Conference (95th Cong., 1st Sess. (1977)); Deep Seabed Mining and the Law of the Sea (95th Cong., 1st Sess. (1977)); Deep Seabed Mining (95th Cong., 1st Sess. (1977)); Development of the Hard Mineral Resources of the Deep Seabed (95th Cong., 1st Sess. (1977)); Law of the Sea Conference: Status Report (95th Cong., 1st Sess. (1977)); Status Report on Law of the Sea Conference, Part 6 (95th Cong., 1st Sess. (1977)); Mining of the Deep Seabed (95th Cong., 1st Sess. (1977)); Deep Seabed Hard Minerals Resource Act (95th Cong., 2d Sess. (1978)); Law of the Sea Conference Status Report, Summer 1978 (95th Cong., 2d Sess. (1978)); Oceanography Miscellaneous, Part 2 (95th Cong., 1st Sess.; 95th Cong., 2d Sess. (1977, 1978)); International Revenue Sharing Provisions in Deep Seabed Mining Legislation (95th Cong., 2d Sess. (1978)); Law of the Sea (95th Cong., 2d Sess. (1978)); Deep Seabed Mineral Resources Act (95th Cong., 2d Sess. (1978)); Briefing on the Eighth Session of the Third United Nations Conference on the Law of the Sea (96th Cong., 1st Sess. (1979)); Status of the Third United Nations Conference on the Law of the Sea (96th Cong., 1st Sess. (1979)); Development of the Hard Mineral Resources of the Deep Seabed (96th Cong., 1st Sess. (1979)); Law ofthe Sea (96th Cong., 1st Sess. (1979)); Deep Seabed Mineral Resources Act (96th Cong., 1st Sess. (1979)); Deep Seabed Hard Minerals (96th Cong., 1st Sess. (1979)); Status of the Third United Nations Conference on the Law of the Sea (96th Cong., 1st Sess. (1979)); Deep Seabed Hard Minerals Resources Act (96th Cong., 1st Sess.; 96th Cong., 2d Sess. (1979, 1980)); Status ofthe Third United Nations Conference on the Law ofthe Sea, Spring 1980 (96th Cong., 2d Sess. (1980)); 1980 Geneva Session and Status of the Negotiations on the Law of the Sea (96th Cong., 2d Sess. (1980)); U.S. Policy and the Third United Nations Conference on the Law of the Sea (97th Cong., 1st Sess. (1981)); Law of the Sea Negotiations (97th Cong., 1st Sess. (1981)); Law of the Sea (97th Cong., 1st Sess.; 97th Cong., 2d Sess. (1981, 1982)); U.S. Foreign Policy and the Law of the Sea (97th Cong., 2d Sess. (1982)); Law of the Sea Negotiations (97th Cong., 2d Sess. (1982)); The Law of the Sea Treaty and Reauthorization of the Deep Seabed Hard Mineral Resources Act (103d Cong., 2d Sess. (1994)).

14 The following congressional resolutions pertain to the law of the sea negotiations: H.R. Res. 330, 93d Cong., 1st Sess. (1973)—enacted (similar in intent to H.R. Res. 296, 93d Cong., 1st Sess. (1973), and H.R. Res. 216, 93d Cong., 1st Sess. (1973)); S. Res. 82, 93d Cong., 1st Sess. (1973) (recommended for passage in S. Rep. No. 296, 93d Cong., 1st Sess. (1973))—enacted; H.R. Con. Res. 687, 93d Cong., 2d Sess. (1974)—no action; H.R.J. Res. 383, 95th Cong., 1st Sess. (1977)—wo action.

15 30 U.S.C. §§1401–1473 (1988 & Supp. IV 1992).

16 For example:

(1) In 30 U.S.C. §1401(a)(8) Congress finds that the U.S. national interest favors the negotiation and entry into force of a comprehensive convention on the law of the sea with a deep seabed mining regime.

(2) In 30 U.S.C. §1402(b)(1) Congress encourages the Secretary of State to negotiate successfully a comprehensive law of the sea convention that provides for an acceptable regime for mining of the hard mineral resources of the deep seabed.

(3) In 30 U.S.C. §1402(b)(2) Congress encourages the Secretary of State “to promote any international actions necessary” to protect the environment from adverse effects of deep seabed mineral development.

(4) In 30 U.S.C. §1441 the law declares

the intent of Congress—

(1) that any international agreement to which the United States becomes a party should, in addition to promoting other national oceans objectives—

(A) provide assured and nondiscriminatory access, under reasonable terms and conditions, to the hard mineral resources of the deep seabed for United States citizens, and

(B) provide security of tenure by recognizing the rights of United States citizens who have undertaken exploration or commercial recovery … before such agreement enters into force with respect to the United States to continue their operations under terms, conditions, and restrictions which do not impose significant new economic burdens upon such citizens with respect to such operations with the effect of preventing the continuation of such operations on a viable economic basis;

(2) that the extent to which any such international agreement conforms to the provisions of paragraph (1) should be determined by the totality of the provisions of such agreement, including, but not limited to, the practical implications for the security of investments of any discretionary powers granted to an international regulatory body, the structures and decisionmaking procedures of such body, the availability of impartial and effective procedures for the settlement of disputes, and any features that tend to discriminate against exploration and commercial recovery activities undertaken by United States citizens …. (emphasis added)

(5) In 30 U.S.C. §1441(3)(A) Congress states its intent that the Act “should be transitional pending” the entry into force of the Law of the Sea Convention, “or portions thereof, with respect to the United States” (emphasis added).

17 Colson, supra note 1; Colson, supra note 3; U.S. Foreign Policy: Hearing Before the Senate Comm. on Foreign Relations, 103d Cong., 2d Sess. (1994); letter from Secretary of State Warren Christopher, supra note 1.

18 Agreement, supra note 1, annex, sec. 1, para. 12(c).

19 For an analysis of the protections to the marine environment established by the LOS Convention, see Jonathan I. Charney, The Marine Environment and the 1992 United Nations Convention on the Law of the Sea, 28 Int’l Law. 879 (1994).

20 30 U.S.C. §1403(7).

21 Agreement, supra note 1, annex, sec. 1, para. 12(c)(ii); see also 30 U.S.C. §1411(1).

22 30 U.S.C. §1441(3)(B).

23 Id. §1442.

24 See Rogoff & Gauditz, supra note 9.

25 Agreement, supra note 1, annex, sec. 1, para. 12(c)(i).

26 Id., para. 14.

27 Id.

28 Agreement, supra note 1, annex, sec. 1, para. 12(c).

29 There is scant likelihood of early deep seabed mining for minerals. Recent economic conditions and the use of substitutes have depressed demand for minerals, while alternative, cheaper land-based sources of some nodule minerals have been identified. The market will probably not make deep seabed mining economically viable before 2025, or even much later than that. See Office of Ocean and Coastal Resource Management, U.S. Dep’t of Commerce, Deep Ocean Mining (1991). Researchers at the Woods Hole Oceanographic Institution Marine Policy Center have made economic analyses of the future of deep seabed mining: James M. Broadus, Sea-bed Materials, 235 Science 853 (1987); Kenneth O. Emery & James M. Broadus, Overview: Marine Mineral Reserves and Resources—1988, 8 Marine Mining 105 (1989); Porter Hoagland, Status of Technology, Recent Patent Activity and Technology Transfer Issues in the Field of Deep Sea-bed Mining (January 1992) (unpublished, on file at Marine Policy Center, Woods Hole Oceanographic Institution, Woods Hole, Mass.); and Porter Hoagland, Manganese Nodules Price Trends: Dim Prospects for Commercialization of Deep Seabed Mining, 19 Resources Pol’y 287 (1993). Experts at the United Nations have reached similar conclusions. Report of the Group of Technical Experts to the General Committee of the Preparatory Commission for the International Sea-Bed Authority and for the International Tribunal for the Law of the Sea, UN Doc. LOS/PCN/BUR/R.32 (Feb. 1, 1994).

30 Agreement, supra note 1, annex, sec. 6.

31 Id., sec. 1, para. 15.

32 Id., para. 15(b).

33 Id., para. 7.

34 Id., para. 6(a)(ii) & (iv).

35 See Resolution II, Governing Preparatory Investment in Pioneer Activities Relating to Polymetal-lic Nodules, 17 Third United Nations Conference on the Law of the Sea, Official Records 146, 147, para. 8(a), UN Sales No. E.84.V.3 (1984); and Agreement, supra note 1, annex, sec. 1, para. 6.

36 John R. Stevenson & Bernard H. Oxman, The Future of the United Nations Convention on the Law of the Sea, 88 AJIL 488 (1994); Panel on the Law of Ocean Uses, United States Interests in the Law of the Sea Convention, 88 AJIL 167 (1994); Jonathan I. Charney, The United States and the Revision of the Convention on the Law of the Sea, 23 Ocean Dev. & Int’l L. 279 (1992); Colson, supra note 3.