Report to Congress on the U.N. Law of the Sea Convention

October 6, 2023 11:31 AM

The following is the Oct. 4, 2023, Congressional Research Service report, United Nations Convention on the Law of the Sea (UNCLOS): Living Resources Provisions.

From the report

The United Nations (U.N.) Convention on the Law of the Sea (UNCLOS) established a comprehensive international legal framework to govern activities related to the global oceans. UNCLOS often is referred to as the constitution of the oceans. The convention was agreed to in 1982 and entered into force in 1994, after the Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea (commonly referred to as the 1994 Agreement) amended many of the deep-seabed resources provisions that several industrialized nations found objectionable.

In 1994, President Clinton submitted UNCLOS and the 1994 Agreement as a package to the Senate for its advice and consent. To date, the Senate has not given advice and consent to accession to the convention and ratification of the 1994 Agreement. The Senate Committee on Foreign Relations has considered UNCLOS, most recently in the 112th Congress, when the committee held several hearings. The committee took no further action, and UNCLOS has since remained with the committee.

Measures pertaining to UNCLOS have been introduced in the 117th and 118th Congresses but have not been enacted to date. In general, introduced measures support U.S. accession to UNCLOS (e.g., H.Res. 361 and S.Res. 220 in the 117th Congress). Of relevance to living marine resources, a 117th Congress bill found that “as a party to [UNCLOS], the United States would be better able to participate in negotiations regarding the management of high seas fish stocks, migratory fish stocks, and marine mammals” (H.R. 3764).

In general, UNCLOS Articles 61-73 address living resources, including highly migratory species, marine mammals, and sedentary species, among others. Other relevant provisions include those that address living resources in the high seas (Articles 116-120) and protection of the marine environment (Articles 192-196), among other provisions. In general, these living resources provisions appear to reflect current U.S. domestic laws, such as the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. §§1801 et seq.), Shark and Fishery Conservation Act (P.L. 111-348), High Seas Driftnet Fishing Moratorium Protection Act (Title VI of the Fisheries Act of 1995; P.L. 104-43), and Marine Mammal Protection Act (16 U.S.C. §§1361 et seq.). In addition, the United States participates in several bilateral or multilateral international agreements that are viewed as consistent with UNCLOS (e.g., the 1995 U.N. Fish Stocks Agreement).

Stakeholders have differing views on what U.S. accession to UNCLOS would accomplish. As presently understood and interpreted, UNCLOS provisions generally appear to reflect current U.S. policy with respect to living marine resource management, conservation, and exploitation. Thus, some may not see a benefit of U.S. accession to UNCLOS, given that U.S. policies generally reflect its provisions. However, some experts view certain U.S. living resource laws as exceeding the obligations set forth in UNCLOS, which may complicate U.S. bilateral negotiations with nations party to UNCLOS. Some legal scholars also view many U.S. laws as reflecting “use-by-use” or “issue-by-issue” approaches for living marine resources, and thus view U.S. accession to UNCLOS as providing a more comprehensive U.S. approach.

Some stakeholders view U.S. accession as potentially complicating enforcement of domestic marine regulations, such as regulation of pollution from ships. Others remain concerned about UNCLOS language relating to arbitration and potential conflicts should the United States adopt the convention. These uncertainties in part reflect the absence of any comprehensive assessment of the social and economic impacts of UNCLOS implementation by the United States. Congress may wish to consider whether to require preparation of such an assessment by an executive branch agency.

Some in support of U.S. accession to UNCLOS contend that the convention’s provisions could provide new privileges for the United States. One potential privilege could be the power to make declarations and statements, which could be useful in promulgating U.S. policy and U.S. interpretation of the convention. Another privilege would be U.S. participation in commissions that develop international ocean policy. Such commissions include the Commission on the Limits of the Continental Shelf, the International Seabed Authority, and the International Tribunal for the Law of the Sea. Participation in these bodies could help forestall future conflicts related to living resources.

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