[Congressional Record Volume 153, Number 195 (Wednesday, December 19, 2007)]
[Senate]
[Pages S16003-S16005]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     EXECUTIVE REPORT OF COMMITTEE

  The following executive report of committee was submitted:

       By Mr. BIDEN, from the Committee on Foreign Relations:

  [Treaty Doc. 103-39 United Nations Convention on the Law of the Sea 
                           (Ex. Rept. 110-9)]

       The text of the committee-recommended resolution of advice 
     and consent to ratification is as follows:
       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 Sea-Bed 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.
       (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

[[Page S16004]]

     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
       (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 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 33, the term ``sanitary laws and regulations'' 
     includes laws and regulations 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

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     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 
     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 
     Ratification.--Conditions 4 and 5 shall be included in the 
     United States instrument of ratification to the Convention. 

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