George K. Walker, Professional' Definitions and States' Interpretative Declarations (understandings, Statements, or Declarations) for the 1982 Law of the Sea Convention

• Citation: Vol. 21 No. 2
• Publication year: 2007

ARTICLES

PROFESSIONALS' DEFINITIONS AND STATES' INTERPRETATIVE DECLARATIONS (UNDERSTANDINGS, STATEMENTS, OR DECLARATIONS) FOR THE 1982 LAW OF THE SEA CONVENTION

George K. Walker^*

Before and after the 1982 Law of the Sea Convention (UNCLOS) went into force in 1994¹and after the 1994 Agreement modifying its terms definitively went into force in 1996,²states deposited statements, declarations, or understandings related to terms and provisions in UNCLOS and the 1994

Agreement. Among the most recent are over twenty-five declarations, understandings, and statements like those that were appended to the U.S. Senate Foreign Relations Committee 2004 draft Resolution of Advice and Consent to the Convention and the Agreement.³

These may be at issue if the U.S. Senate Foreign Relations Committee reports the treaties out of Committee, the Senate gives advice and consent to these treaties, and the President exchanges ratifications, perhaps in 2007 or

2008.

Although the Committee voted the treaties out for full chamber consideration in 2004, by the spring of 2005 the Convention was still on the Senate floor awaiting a vote.⁴When Congress adjourned, pursuant to Senate rules,⁵the treaties were remanded to the Committee, where they remain on the Committee agenda. On May 15, 2007, President George W. Bush again urged the Senate to act favorably on the Convention during the current Congressional session.⁶Senate Foreign Relations Committee hearings may come in the summer of 2007. It is somewhat likely that a 2007 Committee report, if the Committee decides to resubmit the Convention and the 1994 Agreement to the full Senate, will have the same, some of the same, or similar declarations, understandings, and statements.

Alongside these developments, which almost always come with or after negotiation of any international agreement (including the four 1958 law of the sea treaties, to which there are also understandings, declarations, or reservations),⁷have been professional organizations', groups', and individuals' attempts to define terms in the Convention left undefined by UNCLOS or terms used in analysis of the Convention. Perhaps the most recent has been that of the International Law Association (American Branch) Law of the Sea Committee, which may complete its work in 2007-08.⁸

This Article examines the status and force of countries' interpretative declarations, i.e., declarations, statements, and understandings, defined in the Restatement (Third), Foreign Relations Law of the United States:

When signing or adhering to an international agreement, a state may make a unilateral declaration that does not purport to be a reservation. Whatever it is called, it constitutes a reservation in fact if it purports to exclude, limit, or modify [a] state's legal obligation. Sometimes . . . a declaration purports to be an "understanding," an interpretation of the agreement in a particular respect. Such an interpretive declaration is not a reservation if it reflects the accepted view of the agreement. But another contracting party may challenge the expressed understanding, treating it as a reservation which it is not prepared to accept.⁹

Whiteman's Digest definitions are similar:

"[U]nderstanding" is often used to designate a statement when it is not intended to modify or limit any of the provisions of the treaty in its international operation but is intended merely to clarify or explain or to deal with some matter incidental to the operation of the treaty in a manner other than as a substantive reservation. Sometimes an understanding is no more than a statement of policies or principles or perhaps an indication of internal procedures for carrying out provisions of the treaty.

"[D]eclaration" and "statement" are used most often when it is considered essential or desirable to give notice of certain matters of policy or principle, without an intention of derogating from the substantive rights or obligations stipulated in the treaty.¹⁰

Neither the International Law Commission (ILC),¹¹which prepared a draft agreement on the law of treaties for a diplomatic conference that adopted the Vienna Convention on the Law of Treaties, nor the conference could agree on provisions for interpretative declarations. The ILC Multilateral Treaties Project has prepared a definition for them, however:

"Interpretative declaration" means a unilateral statement, however phrased or named, made by a State or by an international organization whereby that State or that organization purports to specify or clarify the meaning or scope attributed by the declarant to a treaty or to certain of its provisions. . . . The character of a unilateral statement as a reservation or an interpretative declaration is determined by the legal effect it purports to produce.¹²

Commentators continue to differ on the subject.¹³

States may unite in common interpretative declarations when they sign treaties;¹⁴there may be special multilateral treaty issues if states append unilateral interpretative declarations.¹⁵Thus, the status of these declarations is less clear than a reading of the Restatement might suggest.

Definitions for treaty terms, like those of the American Branch of the International Law Association Law of the Sea (ABILA LOS) Committee project, also present interesting issues and are the second subject of this Article. Are there differences, for example, between definitions adopted by an intergovernmental organization (IGO), a nongovernmental organization (NGO), a group of scholars with technical expertise, a group of international lawyers like the ABILA LOS Committee, an attorney or nonlawyer scholar who writes independently of group expertise, or a government publication? Does a group's size, national representation, or willingness to accept proposals from institutions or those outside the group matter? If a treaty term and an "outside" definition, e.g., by an NGO or other group, coincide or differ, what is the result?

As the Restatement definition for understandings (i.e., interpretative declarations) intimates, there is a relationship between reservations and these declarations. Are there relationships between definitions derived by NGOs, IGOs, groups of scholars or international lawyers, and individuals and those in treaties or interpretative declarations?

This Article analyzes these and related issues in the context of UNCLOS and the 1994 Agreement. Part I reviews treaty law and "external" sources, e.g., the ABILA LOS Committee project,¹⁶that may influence the law of a particular international agreement, e.g., UNCLOS. Part II analyzes external sources, e.g., treaties' relative primacy generally and how the terms of UNCLOS affect other agreements governing the law of the sea,¹⁷i.e., "external"/"internal" factors impacting UNCLOS. Part III examines the role of reservations and other factors "internal" to a particular treaty that may influence UNCLOS,¹⁸other than states' interpretative declarations.¹⁹Part IV discusses these declarations and their influence on treaties and UNCLOS in particular.²⁰Part V comments on these declarations' role and relationship when they are considered with sources like the ABILA LOS Committee project.

I. "EXTERNAL" INFLUENCES ON THE LAW OF AN INTERNATIONAL

AGREEMENT AND UNCLOS IN PARTICULAR

External influences on treaties, and UNCLOS and the 1994 Agreement in particular, fall into two categories: (a) superior norms and (b) rules of international law at the same level as a treaty, but which may affect the treaty's continued efficacy or performance under it.

A. Superior Norms: The Charter and Jus Cogens

Two relatively new sources of law influence the law of treaties like UNCLOS and the 1994 Agreement: the U.N. Charter and jus cogens principles.

The U.N. Charter, Article 103, provides: "In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail." Article 103 was adapted from the

U.S. Constitution's Supremacy Clause.²¹It means, e.g., that a treaty procured by force or threat of force in violation of the Charter is void.²²UNCLOS has its own trumping provision for agreements related to the law of the sea; its Article 311 is also subject to Article 103.²³

The Charter's supremacy over treaties, declared in Article 103, also means that U.N. Security Council "decisions," which U.N. Members must "accept and carry out," also bind Members as much as the Charter itself.²⁴Thus, U.N.

General Assembly resolutions recommending action are not binding.²⁵

Commentators disagree on whether other Council resolutions (e.g., those calling for or recommending action) are binding, most saying that they are not,²⁶a view with which I agree.²⁷However, nonbinding Assembly or Council resolutions may have the force of law if they restate international law, if afterward an authoritative tribunal (e.g., the International Court of Justice) holds they represent legal norms, or if their content otherwise ascends to recognized customary law or perhaps general principles.²⁸

Article 103 does not resolve the issue of the relationship of other primary sources of law, i.e., custom and general principles.²⁹Unlike the U.S. Constitution's Supremacy Clause, which declares that the Constitution, treaties, and federal laws trump the law of the 50 States,³⁰Article 103, by its terms, does not regulate conflicts between custom or general principles and a

Charter-based norm.

How should analysis proceed in these cases? Could, for example, a longstanding custom or general principle of law outweigh a mandatory Security Council decision?³¹There is no clear answer in Article 103, commentaries on it,³²or, it seems, among commentators generally. If traditional analysis is followed,³³the answer seems to be that such a custom or general principle, if strong enough, could outweigh a Council decision. To be sure, to the extent such a custom or...