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77. U.S. Statements as observer at the Eleventh Meeting of States Parties to UNCLOS from May 14-18, 2001.


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UNCLASSIFIED
TELEGRAM June 21, 2001

To: SECSTATE WASHDC - ROUTINE

Action: OES

From: USMISSION USUN N Y (USUN N Y 1468 - ROUTINE)

Subject: UNCLOS - 11TH STATES PARTIES MEETING

Ref: None
_________________________________________________________________

1. The United States attended the Eleventh Meeting of States
Parties to the UN Convention on the Law of the Sea (UNCLOS)
as an observer from May 14-18 in New York. The Meeting
reviewed the annual report of the International Tribunal on
the Law of the Sea, the report of the external auditors for
the financial year 1999, a report from the International
Seabed Authority, and a report from the Chairman of the
Commission on the Limits of the Continental Shelf. The
meeting engaged in a debate on the meaning of Article 319 of
the Law of the Sea Convention and addressed the pending
dilemma faced by States in meeting a Convention requirement
to submit the coordinates of the outer limits of their
continental shelf to the Commission on the Limits of the
Continental Shelf. The meeting was chaired by Ambassador
Christian Marquieri of Chile. U.S. statements are in
Paragraph 8 and 10.
* * * *

8. Begin Text of U.S. position, delivered by George Taft:

Mr. President:

My delegation would like to thank the Secretariat for its
thoughtful background paper on issues with respect to Article
4, Annex II, of the Law of the Sea Convention. I would also
thank the Chairman of the Commission on the Limits of the
Continental Shelf (CLCS) for his letter and the Pacific
Island Forum States for their position paper.

First, we believe that there is a need for a decision of the
Meeting of States Parties to clarify the date on which the
10-year period for submissions to the CLCS commences.
Second, we believe, as well, that there is a broader issue
regarding submissions, even after the aforementioned
clarification is made.

With respect to the first issue, it was only after May 13,
1999, when the Scientific and Technical Guidelines were
adopted by the Commission, that States had the information
necessary to commence preparing submissions to the
Commission, taking into account the Commission's
expectations. In our view, this is the logical date to view
the 10-year period to have begun. This date does no violence
to the Convention and should assist several states,
particularly developing states. Action in this regard should
be taken by a decision of States Parties, for which there is
precedent.

With respect to the second issue regarding submissions more
generally, there are a number of factors to bear in mind in
approaching this issue.

First, a continental shelf is inherent in a coastal state's
sovereign territory. The fact that a state has not submitted
data in relation to its shelf to the CLCS does not, and
cannot, mean that it has lost part of its shelf, but rather
that it has not, in effect, a settled boundary vis--vis the
Area. A state may, of course, explore and exploit its shelf
beyond 200 miles, even before it makes a submission.

Second, a coastal state, which does not have resources to
make a scientifically sound submission, must not be
prejudiced if it fails to make a full submission within the
10-year period.

Third, in complying with the provisions of Article 4 of Annex
II, a state is reasonably expected to make a submission using
the best information it has available. It is recognized that
a state may not have sufficient data upon which the
Commission could make a recommendation. That state should
nevertheless be considered to have complied with the 10-year
period if it informed the Commission that it intends to make
a further submission. In this regard, even generally
accepted charts might be the essence of the initial
submission. Good faith is essential. Putting the Commission
and the international community on notice is important.

Fourth, technical issues which might result in a limited
submission might include: environmental dangers and
uncertainties in gathering data using traditional available
methods; extreme weather conditions; unavailability of
affordable technical assistance; and lack of a scientific
consensus on, for example, the evaluation of certain data.
In this latter regard, scientists know now much more than
they knew when Article 76 was negotiated. But more will be
known in the years ahead.

Fifth, the Convention was negotiated to foster stability in
ocean space. Stability of expectations must be enhanced, not
diminished. While no state may assert jurisdiction over the
Area, no state may be deprived of a part of its continental
shelf recognized by international law. If a state
over-reaches or if a state is somehow deprived, instability
would result. But it should be noted that perhaps 30-40
states have a continental shelf beyond 200 miles. Therefore,
realistic expectations are a necessity.

Sixth, the Commission may not prejudice boundary delimitation
matters between opposite and adjacent states or matters
beyond the competence of the Commission and beyond the
framework of the Convention.

Mr. President, we believe that the aforementioned approach is
consistent with the Law of the Sea Convention as written; it
requires no amendment of the Convention; it requires no
implementing Agreement. And we must be wary of any
amendments to the Convention or of agreements which
essentially amend the Convention. The balance of the
Convention should not be buffeted or put at serious risk by
actions which cannot be confined to the narrow issue before
us.

Thank you. End Text.
* * * *
10. The U.S. provided a legal analysis of its position
contained in the following statement delivered by Head of
Delegation Maureen Walker.

Begin Text:

Mr. President, Fellow Delegates,

Thank you for the opportunity to address the Meeting of
States Parties to the United Nations Convention on the Law of
the Sea.

Article 319 imposes a duty on the United Nations Secretary
General to convene meetings of States Parties.

Under customary international law, as reflected in the Vienna
Convention on the Law of Treaties, this provision must be
interpreted in accordance with the ordinary meaning of its
terms in their context and in light of the Convention's
object and purpose. Any subsequent agreement between the
Parties regarding the interpretation of the Convention, and
subsequent practice between the Parties in the application of
the agreement, are also to be taken into account in its
interpretation. To the extent that the terms of the
provision are ambiguous, the relevant negotiating history of
the provision should be considered.

The text of Article 319 provides in relevant part: "2. In
addition to his functions as depositary, the Secretary
General shall: (a) report to all States Parties, the
Authority, and competent international organizations on

issues of a general nature that have arisen with respect to
this Convention; . . . (e) convene necessary meetings of
States Parties in accordance with this Convention."

The mandate to the Secretary General to convene meetings is
qualified in two respects: first, it is limited to meetings
that are "necessary"; second, the mandate is linked to other
parts of the Convention.

Only two other areas of the Convention refer to "meetings of
States Parties": (a) Annex II, which establishes the
Commission on the Limits of the Continental Shelf and
requires the election of its members at a meeting of States
Parties; and (b) Annex VI, the Statute of the International
Tribunal for the Law of the Sea, which requires the election
of Tribunal members and the determination of the Tribunal's
budget to be performed at a meeting of the States Parties.
No other provisions of the Convention either require action
by a meeting of the States Parties or acknowledge the
possibility of action by a meeting of States Parties.

As a result, a strict reading of Article 319 (2) (e) suggests
that this provision should not be interpreted to mandate or
authorize the Secretary General to convene a far-reaching
review of general matters related to the Convention.

It is also important to note that Article 319(2)(e) differs
significantly from language used in other multilateral
Conventions -- typically multilateral environmental
agreements -- that have established autonomous institutional
arrangements based on a "Conference of Parties (COP)". These
agreements typically contain express language referring in
varying degrees to the COP's ongoing role in overseeing the
implementation and observance of the Convention. Examples
include the RAMSAR Convention, Article 6 where the COP shall
review and promote implementation of the Convention; CITES,
Art. XI (3); Bonn Convention on Conservation of Migratory
Species, Article VII (5); Basel Convention, Article 15 (5);
and the Framework Convention on Climate Change, Article 7
(2). Several of these agreements predate the Law of the Sea
Convention. The absence of such language in the LOS
Convention indicates that the negotiators did not envision
the establishment of a similar institutional arrangement here.

This reading is further supported by the context of Article
319. Paragraph 2 of Article 319 makes a clear distinction
between (a) meetings of the States Parties, and (b) the
issuance of a report by the Secretary General on "issues of a
general nature that have risen with respect to this
Convention. This context makes it clear that issues of a
general nature are allocated to the Secretary General's
report rather than to a Meeting of States Parties.

The subsequent practice of the Parties to the Convention
lends still further weight to a narrow reading of Article 319
(2) (e).

The Meetings of States Parties have focused on duties related
to the Tribunal and the Shelf Commission (which are the
specified functions of the annual meetings) and have avoided
expanding their agendas to address wider LOS-related
questions. The issues raised during this meeting concerning
the 10 year rule was primarily an organizational question
related to the delay in the elections for the Commission.

At the same time, the annual meetings of the United Nations
General Assembly have included since 1982 an agenda item on
the law of the sea. That forum has thus performed a broad

review function regarding issues of a general nature. The
recent establishment of the UN Informal Consultative Process,
pursuant to an initiative of the Rio Group and SOPAC,
emanating from CSD-7, is designed to allow more time for
discussion of implementation and coordination of matters
based on the Secretary General's report.

These practices together provide an important indication of
the common and contemporaneous understanding of the Parties
regarding the meaning of Article 319 and the intended scope
of the meeting of States Parties.

To the extent that any ambiguity about the narrow scope of
Article 319 (2)(e) remains, the negotiating history of the
Convention provides a strong negative implication in support
of the narrow scope referred to above.
During the negotiations, certain delegations supported
various proposals that would in effect have established a
mechanism for the periodic review of the Convention,
including the establishment of a periodic assembly to review
common problems and address new uses of the seas. These
proposals all failed to attract support and were ultimately
reduced to the language now appearing in Article 319 (2)(a),
concerning the general reports to be made by the Secretary
General. (See V United Nations Convention on the Law of the
Sea 1982: A Commentary (G. Nordquist, ed. 1989 at 289-99).

Separately, the negotiating Conference requested the
Secretary General to prepare a study of his functions under
the draft Convention, including under then-draft Article
319(2)(a). The Secretary General's study, submitted in 1981,
makes it clear that any general review function under the
Convention would be handled as part of his reporting
obligation in Article 319, and that such reporting would be
prepared "on the basis of systematic consultations." But it
also cautions that, before any mechanisms for such
consultation could be established, "further work would be
needed on possible alternative methods for consulting
governments . . . and ensuring better coordination on ocean
space matters."

This negotiating history strongly suggests that the
delegations to the negotiating conference never intended to
empower the meeting of the States Parties to perform a review
or even consultation function regarding general issues
pertaining to the Convention or its implementation.
Thank you, Mr. President. END TEXT

11. Next Meeting. The next meeting will take place May
13-24, 2002. The election of seven judges to the
International Tribunal on the Law of the Sea will occur at
that time. In addition, an election for all 21 Commissioners
to the Commission on the Limits of the Continental Shelf will
occur.
CUNNINGHAM
_________________________________________________________________

Additional Addressees:
None

cc:
AMEMBASSY BEIJING
AMEMBASSY BERLIN
AMEMBASSY BRASILIA
AMEMBASSY BRIDGETOWN
AMEMBASSY BRUSSELS
AMEMBASSY CANBERRA
AMEMBASSY JAKARTA
AMEMBASSY KINGSTON
AMEMBASSY LISBON
AMEMBASSY LONDON
AMEMBASSY MADRID
AMEMBASSY MEXICO
AMEMBASSY MOSCOW
AMEMBASSY OTTAWA
AMEMBASSY PARIS
AMEMBASSY REYKJAVIK
AMEMBASSY ROME
AMEMBASSY SANTIAGO
AMEMBASSY SEOUL
AMEMBASSY THE HAGUE
AMEMBASSY TOKYO
AMEMBASSY WELLINGTON
USEU BRUSSELS

Distribution:

TED6319
ACTION OES-01

INFO LOG-00 NP-00 AF-00 AID-00 CG-00 CIAE-00 SMEC-00
COME-00 USNW-00 DINT-00 DODE-00 DOEE-00 DOTE-00 WHA-00
SRPP-00 DS-00 EAP-00 EB-00 EUR-00 E-00 UTED-00
FMC-01 VC-00 H-01 SSA-01 TEDE-00 INR-00 IO-00
LAB-01 L-00 AC-01 NEA-00 NSAE-00 NSCE-00 NSF-01
OIC-02 OMB-01 CAEX-01 PA-00 PM-00 PRS-00 ACE-00
P-00 SP-00 SSO-00 SS-00 STR-00 TEST-00 TRSE-00
T-00 USIE-00 SA-00 EPAE-00 SNIS-00 NISC-00 PMB-00
DSCC-00 DRL-02 G-00 SAS-00 SWCI-00 /013W
------------------FBF478 211843Z /38
R 211840Z JUN 01
FM USMISSION USUN NEW YORK
TO SECSTATE WASHDC 4208
INFO AMEMBASSY BEIJING
AMEMBASSY BERLIN
AMEMBASSY BRASILIA
AMEMBASSY BRIDGETOWN
AMEMBASSY BRUSSELS
AMEMBASSY CANBERRA
AMEMBASSY JAKARTA
AMEMBASSY KINGSTON
AMEMBASSY LISBON
AMEMBASSY LONDON
AMEMBASSY MADRID
AMEMBASSY MEXICO
AMEMBASSY MOSCOW
AMEMBASSY OTTAWA
AMEMBASSY PARIS
AMEMBASSY REYKJAVIK
AMEMBASSY ROME
AMEMBASSY SANTIAGO
AMEMBASSY SEOUL
AMEMBASSY THE HAGUE
AMEMBASSY TOKYO
AMEMBASSY WELLINGTON
USEU BRUSSELS

UNCLAS USUN NEW YORK 001468

DEPT FOR OES/OA

E.O. 12958: N/A
TAGS: PHSA, SENV, UNGA
SUBJECT: UNCLOS - 11TH STATES PARTIES MEETING



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