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1. The Law of the Sea Convention and U.S. Policy

2. The Maritime Security Program

3. Commercial Fishing: Economic Aid and Capacity Reduction


1. The Law of the Sea Convention and US Policy

On October 7, 1994, President Clinton transmitted to the Senate the 1982 United Nations Convention on the Law of the Sea and the 1994 Agreement relating to the Implementation of Part XI of the United Nations Convention. The package was referred to the Senate Committee on Foreign Relations. On November 16, 1994, the U.N. Law of the Sea Convention entered into force but without accession by the United States. The 1994 Agreement entered into force on July 28, 1996, again without US ratification.

The United States had provisional membership in the International Seabed Authority (ISA) and its organs and bodies through November 16, 1998. The opportunity for provisional membership, providing time for adherence to the convention and agreement, ended on November 16. Since the Senate had not given its advice and consent to US adherence, the President could not bring those documents into force for the United States. Since November 16, 1998, the United States has observer status at the ISA.

The major part of the 1982 Law of the Sea Convention had been supported by US Administrations, beginning with President Reagan, as fulfilling US interests in having a comprehensive legal framework relating to competing uses of the world's oceans. However, the United States and many industrialized countries found some of the provisions relating to deep seabed mining in Part XI and Annexes III and IV of the Convention contrary to their interests and would not sign or act to ratify the Convention. Among the unacceptable elements were a decision-making process in the ISA Council and Assembly that would not give the United States or other Western industrialized countries influence commensurate with their interests; "Review Conference" provisions that would allow Convention amendments to enter into force without express US approval; stipulations relating to mandatory transfer of private technology; provisions that would deter rather than promote future development of deep seabed mineral resources by incorporating economic principles inconsistent with free market philosophy; and the absence of assured access to future deep seabed mineral resources. The Clinton Administration maintains that the provisions of the 1994 Agreement and Annex correct the objectionable elements in the Convention on deep seabed issues.

A number of questions face the Senate as it considers the Convention/Agreement package. Does the Agreement sufficiently resolve opposing concerns expressed above about the deep seabed mining provisions? Are the compulsory dispute settlement provisions and the US declaration acceptable to the Senate? What is the impact of US adherence on current US statutes? What changes must be made by legislation? What precedent does US acceptance of the Convention/Agreement definition of the common heritage of mankind concept establish? Were the provisional application procedures used for the 1994 Agreement a good or bad precedent for the US treaty process? What is the nature of US commitments undertaken in decisions of the ISA Council? Should Congress have a role and under what circumstances? What authority should Congress exert over the expenses of another international organization—the ISA?

MOST RECENT DEVELOPMENTS

The 106th Congress continued without consideration of US adherence to the 1982 UN Law of the Sea Convention and 1994 Agreement, which remain pending in the Senate Committee on Foreign Relations. US provisional membership in the International Seabed Authority (ISA) and its bodies ended on November 16, 1998. The United States participates in meetings of the ISA as an observer.

BACKGROUND AND ANALYSIS

The UN Convention on the Law of the Sea, which was open for signature between December 1982 and December 1984, established a legal regime governing activities on, over, and under the world's oceans. The Convention resulted from the third UN Conference on the Law of the Sea, which met for a total of 93 weeks between December 1973 and December 1982. The United States and other industrialized countries, however, while supporting most of the treaty, did not sign the Convention or announced they could not ratify the Convention without important changes to the parts that dealt with deep seabed resources beyond national jurisdiction. In 1990, UN Secretary-general Javier Perez de Cuellar initiated consultations among interested governments aimed at achieving universal participation in the Convention. Since late 1992, pressures mounted to revise or amend what were viewed as unacceptable parts of the Convention. Factors contributing to this renewed pressure included the desire for universal participation in a convention that in most respects was acceptable worldwide, improvements in the international political climate, changes in economic ideology that meant greater acceptance of free market principles, and the steady increase in the number of ratifications toward the 60 required to bring the convention into force.

In April 1993, the Clinton Administration announced it would actively participate in these consultations on the outstanding issues in the deep seabed portions of the Convention. On November 16, 1993, receipt by the UN Secretary-general of the 60th instrument of ratification/accession marked the start of the one-year waiting period after which the Convention would enter into force. The consultations led to adoption, on July 28, 1994, by the UN General Assembly (by a vote of 121 in favor (including the United States) to 0 against, with 7 (Colombia, Nicaragua, Panama, Peru, Russian Federation, Thailand, Venezuela) abstentions and 36 nations absent) of Resolution 48/263, opening for signature an Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea. The Agreement amended various seabed-related parts of the Convention.

On July 29, 1994, the United States joined 40 other countries and the European Union at UN headquarters in signing that Agreement. On October 7, 1994, President Clinton transmitted to the Senate the 1982 UN Convention on the Law of the Sea and 1994 Agreement relating to the Implementation of Part XI of the UN Convention (Treaty Document 103-39). The package was referred to the Senate Committee on Foreign Relations. On November 16, 1994, the UN Law of the Sea Convention entered into force but without accession by the United States. On July 28, 1996, the Agreement entered into force, but without US ratification.

As of March 31, 2000, 132 entities (131 independent States and the European Community) were parties to the 1982 Convention. At the same time, 96 entities (including the Cook Islands) were parties to the 1994 Agreement. Eight countries, formerly provisional members of the ISA, became Observer states on November 16, 1998. They included Bangladesh, Belarus, Canada, Qatar, Switzerland, Ukraine, United Arab Emirates, and the United States. Current information on status of the Convention and Agreement may be obtained from the UN web page on the Internet at http://www.un.org/Depts/los.

A primary issue in 2000 arises in the absence of US ratification. This country did not adhere to the convention/agreement package by November 16, 1998, and thus no longer participates as a member of the International Seabed Authority. It lost its seats in the four bodies of the ISA. It remains up to the Senate to judge whether the amendments offered in the Agreement sufficiently alter the direction of the Convention's deep seabed mining provisions to make it acceptable to those who oppose US ratification. At issue is whether the United States will ever adhere to the Convention/Agreement package and whether it is in the best US interests to remain outside the treaty or to join it.

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2. The Maritime Security Program

The Maritime Security Program (MSP) is a national defense sealift program that provides commercial assistance to ocean ship operators, primarily container-ship operators. The MSP makes ships and ship crews, and the inter-model transportation and communication network of the ship operator, available for sealift to the Department of Defense upon request. These ship services, if required, would be compensated at commercial rates. A substantial portion of ship crews for reserve ships for military sealift are drawn from the trained and experienced ship crews associated with U.S. flag ships, many of which are in the MSP. The MSP is funded from the civilian side of the federal budget, rather than from the military side. The MSP is administered by the Maritime Administration (MARAD) in the US Department of Transportation, in consultation with the US Department of Defense (DoD). The MSP program was established in 1996 to replace the Operating Differential Subsidy (ODS) program that was established in 1936.

The MSP provides $2.1 million per ship per year through FY2005. The MSP is authorized at $100 million each year through FY2005, enough to fund 47 ships per year through the life of the program. The program is subject to annual appropriations. The Clinton Administration requested $97.650 million for the MSP for FY1999, and Congress enacted that amount of funding. Forty-seven ships are in the MSP; 39 of them are container-ships There are 57 privately owned, U.S. flags container-ships in US foreign trade, none in foreign-to-foreign trade, and 23 in domestic trade. All 47 ships qualified on the basis of military usefulness. Ten companies have ships in the MSP.

U.S. flag container-ships transport 8.6% of US ocean-borne commercial foreign trade, measured in tons, and 9.9% measured by value. The U.S. operated container-ships fleet is significantly larger when foreign-flag ships controlled by US citizens are included. Since 1970, many nations have been increasing the size of their merchant marine as a means of projecting visibility and earning hard currency.

One key rationale for the commercial assistance funding in the MSP is to assure a continuing presence of U.S. flag ships in international trade. The key rationale for the MSP is to assure, in the event of a national defense need, the availability of an adequate number of ships, and trained and experienced ship personnel who are US citizens to operate these and other ships. Some suggest that alternative approaches to these goals would be preferable.

This report discusses the MSP in an international commercial context. Maritime policies of other nations that may adversely affect the U.S. flag container-ships industry could be addressed in international negotiations. In such negotiations, the MSP may be an issue. A US response to such objections in the past has been that: (1) the MSP is a small program having a largely military objective; (2) the United States already has some of the most market-based national maritime policies among maritime countries; and (3) the United States is ready to negotiate more market-based maritime policies as soon as "a critical mass of countries" is willing to do the same.

The Maritime Security Program (MSP) is a national defense sealift program that provides commercial assistance to ocean ship operators, primarily container-ships operators.(1) A rationale for the commercial assistance is to assure a continuing presence of U.S. flag ships in international trade. Another rationale is to assure, in the event of a national defense need, the availability of an adequate number of trained and experienced ship personnel who are US citizens to operate these and other ships.

This report discusses the MSP in an international commercial context. Maritime policies of other nations may adversely affect the U.S. flag container-ships industry. These policies could be addressed in international negotiations.

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3. Commercial Fishing:
Economic Aid and Capacity Reduction

Both experience and economic models show that, in the absence of enforceable access or catch restrictions, competition among commercial fishermen results in an expansion of fishing capacity, and resultant fishing effort, beyond the sustainable limits of the fish population being pursued. The spiral of increasing effort and diminishing returns (i.e., rent dissipation) has helped to fuel increases in fish prices that reduce benefits to consumers and processors; has shifted many fish populations toward smaller, younger fish that typically command lower prices; and in many cases has reduced yields far below achievable levels.

Congress has considered several approaches to address concerns about overcapitalization and excess capacity in the fishing industry. The economic aid and capacity reduction programs discussed in this document are some possible approaches to reducing overcapitalization and over-fishing Alternative approaches, such as community development quotas and individual transferable quotas, seek to meet some of the same objectives, but are not discussed in this report.

Although some US fisheries remain open to new entrants, access to many fisheries is limited or restricted. If new entry to a fishery is permitted, any capacity removed could be replaced or increased, negating the effects of any capacity reduction scheme. Capacity reduction in a limited access fishery may be feasible if vessels or licenses that are removed cannot be replaced. However, without measures to prevent upgrading (i.e., "capital stuffing")—increasing the size or fishing power (i.e., efficiency or effectiveness) -- of remaining vessels, the benefits of capacity removal could again be negated.

Bodies governing limited access fisheries at local, state, national, and international levels have initiated various "buyback" or retirement schemes to reduce over-capacity and the consequent over-fishing The nature and scope of these programs have been as varied as the fisheries they have covered. The common objective of vessel buybacks or license retirement is the permanent withdrawal of effort (i.e., fishermen and their vessels) from a particular fishery. In most cases, however, the reduction in the number of vessels or licenses has had a relatively modest effect on fleet capacity, since the first to accept buybacks are usually the oldest and least efficient units.

Although sometimes conceived as a means for easing financial hardship caused by reduced landings of fish, capacity reduction is more often viewed as a measure to realign effort and eventually increase sustainable catch levels. Unlike economic aid, however, capacity reduction aims to provide long-term benefits to those choosing, or able, to remain within the industry and may thus indirectly confer benefits to some of the communities that these fisheries support.

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