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Substantive Changes in a Multilateral Treaty Before its Entry into Force: The Case of the 1982 United Nations Convention on the Law of the Sea
Renate Platzöder1
Full text available: PDF format *
The Problem
The 1982 United Nations Convention on the Law of the Sea was not adopted by consensus but by recorded vote.2 The result was 130 in favour, 4 against with 18 abstentions.3 The Convention which attracted 159 signatures, the highest number of signatures for any multilateral treaty,4 is not yet in force.5 By 31 May 1993, the Convention had received two accessions and 54 ratifications, 51 of which came from developing countries in Africa, Asia and Latin America.6
The work of the `Preparatory Commission for the International Seabed Authority and for the International Tribunal for the Law of the Sea' (PrepCom),7 which commenced in 1983, as well as the deliberations and resolutions of the UN General Assembly on the law of the sea since 1982 have shown8 that the Convention is not universally acceptable. A number of industrialized countries uphold the position that the deep seabed regime of the Convention contains considerable deficiencies and flaws which require rectification, modification or even amendment.9 Among them are the major contributors to the UN budget. The 56 States having ratified or acceded to the Convention represent less than 4.5% of the costs of the Convention. Consequently, the Convention, if not changed, will lack proper funding. In addition, the establishment of the three new institutions (Authority, Tribunal and Commission on the Limits of the Continental Shelf) requires participation of States from all regions.10 It was not until 1989 that these problems were generally admitted. A specific clause was introduced by the UN Resolution on the Law of the Sea of that year, which invited `all States to make renewed efforts to facilitate universal participation in the Convention'.11 The term `universal participation' was agreed upon after a long debate.
The States which insist on substantive changes to the Convention would have preferred the term `universally or generally accepted Convention'. Others did not want to take sides, and felt that the best term to describe their common objective was `universality of the Convention'. In the 1992 Report on the Law of the Sea of the Secretary-General there is a section entitled `Question of the Universality of the Convention on the Law of the Sea'.12 It is stated, that `since the overwhelming majority of ratifications are from developing countries, the long-standing intent of the international community to achieve a universally accepted Convention takes on a new meaning'. Thus, the Secretary-General shares at least some sympathy with those States which argue that the Convention was not universally acceptable when adopted, and should be changed before its entry into force. However, the Secretary-General is using the term `universal participation' when reporting on his `initiative of convening informal consultations aimed at achieving universal participation in the Convention'.
Since 1990, eleven sessions of informal consultations, also referred to as the Dialogue, have been held and their results were summarized in so-called `information notes'.13 Unfortunately, these efforts have not yet produced a solution for several reasons. First, the United States never participated in PrepCom and did not actively participate in the consultations until very recently. Second, among the developing countries there is a great deal of hope that the Convention will enter into force as adopted in 1982, so that the Convention could only be changed in accordance with its amendment procedures. Third, there are hardly any precedents concerning the problem of changing a multilateral treaty before its entry into force.
The last round of the Dialogue took place in New York from 2 to 6 August 1993, which will be followed by an additional meeting from 8 to 12 November 1993, also in New York.
The United States informed the Secretary-General and the participants of the 10th session on 27 and 28 April 1993, that the Clinton administration will take a more active role in the search for a `widely acceptable Convention'.14 At the same time it was said that it would be incorrect to see a fundamental shift in the US policy regarding specific objections towards the deep seabed regime of the Convention, and that a solution to the outstanding problems would require substantial changes, and a legally binding instrument to give effect to them.
As to the time period in which such instrument will have to be negotiated, the following can be said: as long as the requirement of 60 ratifications or accessions15 is not met, there is no doubt that an extra-treaty solution is possible. Further, the mandate for the informal consultations conducted by the Secretary-General is unquestionable. But the Convention will enter into force automatically 12 months after the 60th instrument of ratification or accession will have been deposited with the Secretary-General,16 and consequently the mandate for the Dialogue will no longer have any sound basis. If such a situation arises, additional problems will have to be dealt with.
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1 Doctor of law, Lecturer in International Law, University of Munich,
Senior Research Associate, Stiftung Wissenschaft und Politik (Institute
for International Affairs).
2 Rule 39 of the Rules of Procedure of the Third United Nations
Conference on the Law of the Sea. UN Doc. A/CONF.62/30/Rev.3; Official Records
UNCLOS III, vol. I, 54, 176; vol. IV, 3; vol. XIII, 4.
3 UN Doc. A/CONF.62/SR.182, 3 June 1982 in R. Platzöder,
Third United Nations Conference on the Law of the Sea: Documents (1988),
138-139.
4 Report of the Secretary-General on Progress made in the
Implementation of the Comprehensive Legal Regime Embodied in the United Nations
Convention on the Law of the Sea, A/47/512, 5 November 1992; Developments
relating to the United Nations Convention on the Law of the Sea, Report of the
Secretary-General on the Law of the Sea, A/47/623, 24 November 1992, 7 et
seq.
5 The Conventions enters into force 12 months after the deposit of
the 60th instrument of ratification or accession (Article 308, paragraph
1).
6 The three ratifications which fell outside these groups came from
Iceland, Malta and Yugoslavia. Ratifications were received from: Fiji (1982);
Zambia, Mexico, Jamaica, Namibia, Ghana, Bahamas, Belize, Egypt (1983); Cote
d'Ivoire, Philippines, Gambia, Cuba, Senegal (1984); Sudan, Saint Lucia, Togo,
Tunisia, Bahrain, Iceland, Mali, Iraq, Guinea, Tanzania, Cameroon (1985);
Indonesia, Trinidad & Tobago, Kuwait, Yugoslavia, Nigeria, Paraguay (1986);
Yemen, Cape Verde, Sao Tome & Principe (1987); Cyprus, Brazil (1988);
Antigua & Barbuda, Zaire, Kenya, Somalia, Oman (1989); Dominica (1991);
Costa Rica, Uruguay (1992); Saint Kitts & Nevis, Zimbabwe, Malta (1993).
Accessions: Micronesia, Marshall Islands (1991). Law of the Sea Bulletin, No.
23, June 1993, 3.
7 R. Platzöder, The Law of the Sea Documents: 1983-1992
(1989) vol. 15 et seq.
8 All General Assembly resolutions on the law of the sea from 1982 to
1992 were adopted by recorded vote. On all but one occasion the United States
cast a negative vote. The Federal Republic of Germany and the United Kingdom
abstained consistently, and were joined by the United States in 1992,
A/47/PV.84, 8 January 1993, 108; see statement by United Kingdom speaking on
behalf of the European Community and its Member States and statement by the
United States at the occasion of the 10th anniversary of the Convention,
A/47/PV.83, 6 January 1993, 26, 66.
9 Declarations made upon signature of the Convention by Belgium,
France, Italy, Luxembourg and by the European Economic Community contain
statements concerning the deep seabed regime which come close to a reservation.
See R. Platzöder and H. Grunenberg, Internationales Seerecht (1990)
502 et seq. The Federal Republic of Germany and the United Kingdom did not sign
the Convention and share this position. See, for example, Letter dated 19 March
1985 from the Chairman of the Delegation of the Federal Republic of Germany
addressed to the Chairman of the Preparatory Commission, LOS/PCN/57, 20 March
1985, and Letter dated 4 November 1985 from the Chairman of the Delegation of
the United Kingdom of Great Britain and Northern Ireland addressed to the
Chairman of the Preparatory Commission, LOS/PCN/74, 9 January 1986. See R.
Platzöder, supra note 6, vol. I at 305 and 337.
10 For the Authority see Article 161, paragraph 1 (e); Article 163,
paragraph 4; for the Tribunal see Annex VI, Article 2, paragraph 2; Continental
Shelf Commission Annex II, Article 2, paragraph 1.
11 UN Res. 44/26, 20 November 1989; UN Res. 45/145, 14 December 1991;
UN Res. 46/78, 12 December 1991; UN Res. 47/65, 11 December 1992.
12 UN Doc. A/47/623, 24 November 1992, 11.
13 The informal consultations conducted by the Secretary-General in
1990 and 1991 in a summary of 31 January 1992, followed by information notes of
26 May 1992, 10 December 1992, 8 April 1993, and 4 June 1993.
14 Statement by Ambassador Madeleine Albright in Oceans Policy
News, a publication of the Council on Ocean Law, Washington DC, vol. X,
February (1993) 2.
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