The Law of the Sea Treaty was significantly revised in 1994, but many of its critics refuse to acknowledge this. The reform process began in 1990 under President George H.W. Bush. The first Bush Administration initiated further negotiations to resolve U.S. objections to the deep seabed mining regime described in Part XI and in Annexes III and IV.
These talks culminated on July 29, 1994 when the United States signed the “Agreement Relating to the Implementation of Part XI ,” which is often referred to as the Implementing Agreement. “The Agreement” comprehensively revised Part XI and the two annexes. It resolved all six of the problems identified by President Reagan in 1982.
The technology transfer requirement was eliminated and the Treaty delineated that nations must acquire equipment on the open market. The Agreement guarantees a seat to “The State, on the date of entry into force of the Convention, having the largest economy in terms of gross domestic product.” No nation comes close to America’s GDP, therefore America’s seat is not in doubt.
The voting rules were also changed and they ensure that the United States had a veto over rules, regulations and financial decisions. The LOS critics do acknowledge that all ISA actions, including the distribution of funds, would be subject to an American veto.
President Clinton signed the Treaty as well as the “Agreement Relating to the Implementation of Part XI”. It was submitted to the Senate for ratification in October of 1994. Every nation which has ratified the LOS Treaty has accepted the stipulation that the original 1982 pact and the “Implementing Agreement” of 1994 are a “single legally binding instrument.” In the event of an inconsistency, the Agreement is to prevail. Section 4 of the 1994 amendment “Affirms that the Agreement shall be interpreted and applied together with Part XI as a single instrument.”
This is a key point because several prominent critics of the Treaty have misinterpreted the “Implementing Agreement” as not being part of the Treaty. This misinterpretation sustains the misgivings regarding the original Part XI provisions which were removed in 1994. This viewpoint has been championed by Frank Gaffney of the Center for Security Policy. He continually misreads the Implementing Agreement as not being legally binding on the Treaty.
Mr. Gaffney is not an attorney and has not presented any legal evidence to substantiate his argument. Legal opinions have now been issued by the Defense Department, the State Department, and the Senate Foreign Relations Committee. Each have concluded that the 1994 amendment is an “indentured part” of LOS and that any claim that it is not “is entirely without merit.”
Secretary of State Rice addressed this issue in a letter to the Foreign Relations Committee and assured the Senators that all of the 1994 changes have been incorporated and are binding.
The Treaty entered into force a month later on November 16, 1994 without the ascension of the United States.
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