57. IMO Doc. LEG/CONF.16/18 (May 2007)
Because there are no summary records of the proceedings and the records of decisions of the Conference have been limited in scope, as others have said in the conference, there will be no historical record that explains the important substantive actions and decisions taken here in Nairobi this past week.
To fill that gap for the United States and perhaps for those Member States who have not participated in this Conference, we wish to place on the record of this Conference our understanding of these actions and decisions, and are grateful that this statement has been circulated as a document of the conference.
It is important to recognize that the Convention imposes significant duties and responsibilities on flag States and grants new rights to coastal and port States, but not vice versa. This imbalance continues to be of concern. We believe that the absence of a tonnage requirement in the entry into force article does not reflect the need for international acceptance by flag States of these significant new obligations. To the extent major flag States have not consented to be bound by the Convention, their ships will not be required to carry the insurance called for in Article 12 except as required as a condition of entry into ports of States Parties.
We note that all of those delegations that spoke agreed that this treaty does not apply to States that have not consented to be bound by its terms and their commitment that as States Parties they will not seek to do so except as a condition of entry into their ports. We will rely on those representations.
We wish to draw the Conference’s attention that the text is not clear as to the rights and duties of States Parties inter se in their territorial sea, straits used for international navigation, and archipelagic waters. In particular, it is unclear what a State Party, that has opted to apply the Convention to its territory, may do in respect of ships of States Parties that have not opted to apply the convention to their territory that are exercising the rights of innocent passage, transit passage, and archipelagic sea lanes passage in the waters of a State Party that has applied the convention in its territory. We understand that, in the absence of mutuality of consent by States Parties, a State Party will not seek to apply the Convention to ships of State Parties that have not consented except as a condition of port entry.
We believe that Article 16, Relationship to other conventions and international agreements, is not legally correct. The text reads:
“Nothing in this Convention shall prejudice the rights and obligations of any State under the United Nations Convention on the Law of the Sea, 1982, and under the customary international law of the sea.”
We note that the Convention substantively alters the rights and obligations of States Parties under the law of the sea and thus Article 16 is incorrect.
For example, the Convention permits States Parties to intervene in their exclusive economic zone in circumstances that the law of the sea does not presently permit. Hence the rights of coastal States are expanded and the rights of flag States are diminished.
It is evident thus that the Convention does prejudice the balance of rights and duties of coastal and flag States in the law of the sea as is permitted by article 311 of the Law of the Sea Convention. In our view, this provision should have stated that “Except as provided in this Convention, nothing in this Convention shall prejudice the rights and obligations of any State under” the law of the sea.
We would also note for the record that if, as one delegate mentioned, any wreck poses a danger to the environment satisfying the criteria of article 221 of the Law of the Sea Convention, which incorporates the standards of the Intervention Convention—“major harmful consequences”—there would have been no need for the public international law provisions of this Convention.
Finally, with regard to Article 15 on the settlement of disputes between States Parties, I wish to make four points.
The inclusion of these provisions from the Law of the Sea Convention on compulsory dispute settlement is unprecedented in IMO conventions resulting from the work of the Legal Committee. The United States does not accept that the inclusion of such provision in this Convention, particularly one without an opt-out provision and adopted under improper procedures, is a precedent for future IMO Conventions developed by the Legal Committee.
The United States remains committed to the development by the Organization and the Legal Committee of international solutions to shared concerns. We look forward to continuing to work with the IMO and its Member States to reach these solutions.
 Case C-459/03, available at http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=en&newform=newform&jurcdj=jurcdj&alldocrec=alldocrec&docj=docj&docor=docor&docop=docop&docav=docav&docsom=docsom&docinf=docinf&typeord=ALLTYP&numaff=&ddatefs=30&mdatefs=05&ydatefs=2006&ddatefe=&mdatefe=&ydatefe=&nomusuel=Commission+v.+Ireland&domaine=&mots=&resmax=100&Submit=Submit.