Hearings, Reports and Prints of the House Committee on Interior and Insular Affairs

The United Nations Law of the Sea Conference is probably the most important international lawmaking conference ever held. It has the formidable task of concluding a comprehensive treaty on ocean use with provisions of breadth of territorial sea, transit through international straits, fisheries, protection of the marine environment, exploitation of deep sea minerals, and scientific research. The work of the Law of the Sea Conference, therefore, can affect every American whether he lives near or far from the ocean.

The multilateral negotiating process necessary for reaching agreement on these complex issues has been long and drawn out. Three years of preparatory meetings were required before the Conference could convene, and it may be necessary to hold more than one substantive negotiating session before final agreement is reached. Beyond that time, the process of national ratifications could delay implementation of the treaty even further. In the meantime, the need increases for an internationally accepted system for orderly use of the oceans. In the United States, technology for commercial recovery of manganese nodules from the deep sea floor is moving forward, and our fishermen are in dire need of new measures to conserve rapidly depleting stocks of fish. Both of these situations call for the establishment of a new international order in the oceans at the earliest possible date. Accordingly, the United States has proposed that the treaty articles on the deep seabeds and fisheries be applied provisionally without waiting until completion of the national ratification process for the ocean treaty as a whole. If the Law of the Sea Conference produces a treaty that accommodates the interests involved, provisional application could serve to settle current and incipient disputes among nations, enable international law to keep up with deep sea mining technology, and alleviate the plight of fishermen.

Provisional application, however, raises questions as to what is possible under U.S. domestic law and legislative procedure. It is those questions to which this report addresses itself. By identifying precedents which present alternative approaches to provisional application, it is hoped that the report can be useful as a reference guide for determining how the United States might effect the provisional application of ocean treaty articles. As can be seen from the examples given, provisional application is legally and practically possible, and has been used in the past under several different formulae.

The subcommittee is grateful for the diligent research work in preparation of this report by Miss Marjorie Ann Browne, Analyst in International Organization, Foreign Affairs Division of the Congressional Research Service.

DONALD M. FRASER,

Chairman, Subcommittee on International
Organizations and Movements.

31-789 (Pt. 2) O 74 - 6

LAW OF THE SEA TREATY:
Alternative Approaches to Provisional Application

INTRODUCTION

In August 1973, representatives of the United States broadened a proposal made in March to a United Nations committee preparing for the Third Law of the Sea Conference

If the Conference achieves broad agreement that adequately accommodates the interests involved, there is no reason why there should be provisional application only with respect to the deep seabeds portion of the treaty as we proposed at the March session of this committee.* * * It would be unfortunate indeed for disputes to continue, after we have achieved a solution in a treaty at the conference, while waiting for completion of the ratification process.* * * Mr. Chairman, we are prepared to support provisional application for both the deep seabeds and fisheries aspects of the treaty and to consider provisional application in connection with other aspects of the treaty as well. In this connection, we are considering and hope other states will also consider how such provisional application can best be effected under domestic law.

The purpose of this report is to identify alternative approaches to provisional application, both with respect to the international agreement mechanism used to formulate provisional application and with respect to U.S. domestic requirements for entering into a provisional application arrangement. Ten precedents, all of which are multilateral treaties adhered to by the United States, have been examined (see part IV). The results of this examination comprise parts I and II of this report.

I. FORMULATION OF THE PROVISIONAL APPLICATION MECHANISM

A review of precedents discloses differences in the uses made of the provisional application format. In some instances the purpose is purely preparatory; this procedure is particularly useful when an international institution is being created by the treaty. In some instances this preparatory entity also has stop-gap or interim operational functions. On other occasions provisional application actually brings the institution and/or regime into operation, pending sufficient ratifications for definitive entry into force of the treaty. In one example, an entire interim framework was created to operate while definitive arrangements were being worked out.

Whatever the purpose, provisional application is used and was included in article 25 of the Vienna Convention on the Law of Treaties which was adopted by a U.N. Conference in May 1969, signed by the United States in April 1970, and is in February 1974, pending before the Senate Committee on Foreign Relations. This Convention, which sets down a generally agreed body of rules to govern all aspects of

treatymaking and treaty observance, has not entered into force and for itself does not contain a provisional application clause.

How has provisional application been devised? It has been created as a separate document a protocol to the treaty or as a separate agreement. In some instances this separate document enters into force upon signature at the same time the treaty is signed at the conclusion of the conference. Thus, provisional application starts immediately. In other instances this separate document enters into force after a certain number of states within a specified time limit have, by signature, indicated their acceptance. Provisional application has also been executed by resolution of the treatymaking conference. In this instance entry into force is immediate. Also, a procedure for provisional application has often been included as an article or section in the treaty itself. In this case, a nation can submit a declaration that it will apply the treaty provisionally, pending final consideration in compliance with the appropriate constitutional requirements of the

state.

Another approach to provisional application is through a more formalized two-step process in which a separate conference actually creates each document. The first or interim arrangement could last for years while a conference is creating the final or definitive treaty. The interim agreement could itself contain a provisional application article.

A mechanism not used in any of the precedents is one of tacit consent. This procedure is used, for example, by the International Civil Aviation Organization (ICAO) to adopt or amend Annexes to the ICAO Convention. The annex, which includes standards and recommended practices, is approved by the ICAO Council and submitted to the contracting states. The annex becomes effective 3 months after its submission unless a majority of the contracting states register their disapproval with the Council. The standards prescribed in an annex are not binding legislative enactments.1

In this tacit approval approach a resolution or annex to the Law of the Sea Treaty would indicate that specified articles would go into effect provisionally after an identified time period unless more than a specified number of the nations participating in the Conference disapproved. Alternatively, the specified articles could go into effect provisionally regardless of the number of declarations submitted. The declarations could simply indicate that a specific article would not apply or that it could not apply until the nation had, in accordance with the appropriate constitutional requirements, ratified the treaty, or it could not apply until the nation had taken appropriate legislative action to enable the nation to apply the article provisionally.

II. U.S. ACCEPTANCE OF PROVISIONAL APPLICATION

In many of the precedents U.S. acceptance of provisional application has been by executive agreement, that is by international agreement other than treaty. The authorities cited for entering into these executive agreements have often been variations on a theme of prior or subsequent consultation with Congress or with the Senate. Prior specific legislation is cited as the authority for the General Agreement

Buergenthal, Thomas. Law-Making in the International Civil Aviation Organization. New York, published for the Procedural Aspects of International Law Institute by Syracuse University Press, 1969. pp. 62-69, 76-80.

on Tariffs and Trade (GATT), with congressional approval implied in the subsequent appropriating legislation. Prior general legislation is cited for the Interim Commission of the World Health Organization (WHO) and for the Provisional International Civil Aviation Organization (PICAO); in addition there was a prior sense of the Senate resolution in support of WHO. Specific prior legislation authorized U.S. entry into the interim Intelsat agreement. Prior congressional resolutions and close consultation with and participation of key congressional leaders could be cited as authority for U.S. acceptance of the agreement establishing the U.N. Preparatory Commission. The executive agreement establishing the Preparatory Commission of the International Refugee Organization (PCÎRO) was given subsequent legislative approval by the appropriation of funds

There was no separate action taken on the Preparatory Commission of the International Atomic Energy Agency (IAEA) and the Preparatory Committee of the Intergovernmental Maritime Consultative Organization (IMCO). Prior consultation with the appropriate congressional committee had, it may be assumed, alerted that committee to the Annex creating a preparatory commission for IAEA. The subsequent approval of the IMCO treaty, with the knowledge that the preparatory committee as well as the Provisional Maritime Consultative Council were operating, is cited as subsequent approval of the provisional institutions.

Lastly, with respect to the treaties which contained a provisional application procedure, the United States did submit declarations which could be regarded as accepting the treaty provisionally. The executive branch submitted a declaration of provisional application for the Coffee Agreement after the Senate had approved ratification of the treaty. Congress had not, however, enacted the implementing legislation and the note relative to the 1962 Coffee Agreement indicated that "the United States does not assume any of the obligations for which such legislation is necessary." A declaration of provisional application to the 1971 International Wheat Agreement was not submitted until the appropriate committee in the Senate had been consulted and had given its consent.

None of the precedents in U.S. practice gave the President prior authorization to accept the treaty provisionally. According to Whiteman's Digest of International Law,

In the United States, there is no practice of provisional ratification of treaties. In appropriate circumstances a declaration of adherence to principles established by a treaty or of provisional application to the extent permitted by law, may be made, but this is not tantamount to provisional ratification. The United States, as depositary for multilateral treaties which provide for the deposit of instruments of ratification in order to become a party, has declined to accept for deposit instruments or notifications of adherence "subject to ratification". 3

III. COMMENTARY ON DOMESTIC ALTERNATIVES

Concrete and definite information on the contents of a Law of the Sea Treaty does not exist since decisions on key elements await the substantive sessions of the Conference. One might observe that some elements of the U.N. Charter approach are present: the House and

2 Whiteman, Marjorie M. Digest of International Law, v. 14. Washington, U.S. Government Printing Office, 1970. p. 92.

Whiteman, v. 14, p. 87.

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