The LOS Amendment Process and How It Relates to the United States
The Law of the Sea Convention recognizes that over time parties may find it necessary to adapt to changes in issues unforeseen at the time the Convention was negotiated.
With regard to the United States, the essential point is that:
No amendment to the Convention can be imposed on the United States without our approval:
- The US would have a veto over the adoption of any amendments to the seabed mining and the dispute settlement provisions and would be required by the resolution of advice and consent to ensure that such amendments are adopted in conformity with the treaty clause of the US Constitution.
- While a sufficiently large number of states can amend other parts of the Convention as it applies among themselves, they cannot impose those changes on the United States and, in any disputes with the US, the unamended provisions would apply to all parties.
With regard to the seabed mining provisions, by virtue of its permanent seat on the Council of the International Seabed Authority the United States would be able to veto the adoption of any amendment to these provisions. Under the proposed Senate Resolution of Advice and Consent, the United States would be required to gain Senate approval of amendments before allowing their adoption. The provision empowering a review conference to amend Part XI was rescinded by the 1994 Agreement on Implementation.
Amendments to the dispute settlement provisions for non-seabeds provisions can only be made by simplified amendment procedure or by consensus of a conference of parties,  both of which could be blocked by the United States.
Amendments related to the dispute settlement system for seabed mining must be made through the same mechanism as amendments to Part XI - consensus of the Council.
With regard to all other provisions, the Convention provides a mechanism for amendments to be adopted to the Convention, either through a Conference of Parties or a simplified procedure that may be blocked by the US. Amendments adopted through either process come into force ONLY for and between those parties that explicitly ratify or accede to them and to new parties to the Convention. Amendments do not affect the rights and obligations of parties that have not ratified them.
With regard to relationships between parties that ratify amendments to the non-seabeds parts of the Convention and those that do not, the unamended version applies. This allows the United States to lock in the terms of the Convention regardless of agreements between other parties or the development of customary international law that might be at odds with the Convention as ratified by the United States.
1 The seabed mining provisions comprise Part XI, Annexes III and IV, section 4 of Annex VI and the Agreement on Implementation.
2 Article 161, para 8(d) requires amendments to be adopted by consensus of the Council and Section 3, paragraph 15(a) of the Annex of the 1994 Agreement provides the permanent seat on the Council.
Article 161, para 8(d): Decisions on questions of substance arising under the following provisions shall be taken by consensus: article 162, paragraph 2(m) and (o); adoption of amendments to Part XI.
Annex, Section 3, para 15(a): ...the four members shall include ... the State, on the date of entry into force of the Convention, having the largest economy in terms of gross domestic product...;
3 Resolution of Advice and Consent as adopted by the SFRC in 2004
(4) All amendments to the Convention, other than amendments under article 316(5) of a technical or administrative nature, shall be submitted by the President to the Senate for its advice and consent.
(5) The United States declares that it shall take all necessary steps under the Convention to ensure that amendments under article 316(5) are adopted in conformity with the treaty clause in article 2, section 2 of the United States Constitution.
4 Agreement, Annex, Section 4 and Article 155 of the Convention
Agreement, Annex, Section 4, para 1: The provisions relating to the Review Conference in article 155, paragraphs 1, 3 and 4, of the Convention shall not apply. This provision rescinded the following paragraph:
Article 155, para 4: If, five years after its commencement, the Review Conference has not reached agreement on the system of exploration and exploitation of the resources of the Area, it may decide during the ensuing 12 months, by a three-fourths majority of the States Parties, to adopt and submit to the States Parties for ratification or accession such amendments changing or modifying the system as it determines necessary and appropriate. Such amendments shall enter into force for all States Parties 12 months after the deposit of instruments of ratification or accession by three fourths of the States Parties.
5 Annex VI, article 41, para 1
1. Amendments to this Annex, other than amendments to section 4, may be adopted only in accordance with article 313 or
by consensus at a conference convened in accordance with this Convention.
6 Annex VI, article 41, para 2:
2. Amendments to section 4 may be adopted only in accordance with article 314 7 Article 312:
1. After the expiry of a period of 10 years from the date of entry into force of this Convention, a State Party may, by written communication addressed to the Secretary-General of the United Nations, propose specific amendments to this Convention, other than those relating to activities in the Area, and request the convening of a conference to consider such proposed amendments. The Secretary-General shall circulate such communication to all States Parties. If, within 12 months from the date of the circulation of the communication, not less than one half of the States Parties reply favourably to the request, the Secretary-General shall convene the conference.
2. The decision-making procedure applicable at the amendment conference shall be the same as that applicable at the Third United Nations Conference on the Law of the Sea unless otherwise decided by the conference. The conference should make every effort to reach agreement on any amendments by way of consensus and there should be no voting on them until all efforts at consensus have been exhausted..
8 Article 313:
1. A State Party may, by written communication addressed to the Secretary-General of the United Nations, propose an amendment to this Convention, other than an amendment relating to activities in the Area, to be adopted by the simplified procedure set forth in this article without convening a conference. The Secretary-General shall circulate the communication to all States Parties.
2. If, within a period of 12 months from the date of the circulation of the communication, a State Party objects to the proposed amendment or to the proposal for its adoption by the simplified procedure, the amendment shall be considered rejected. The Secretary-General shall immediately notify all States Parties accordingly.
3. If, 12 months from the date of the circulation of the communication, no State Party has objected to the proposed amendment or to the proposal for its adoption by the simplified procedure, the proposed amendment shall be considered adopted. The Secretary-General shall notify all States Parties that the proposed amendment has been adopted.
9 Article 316, para 3
3. For each State Party ratifying or acceding to an amendment referred to in paragraph 1 after the deposit of the required number of instruments of ratification or accession, the amendment shall enter into force on the thirtieth day following the deposit of its instrument of ratification or accession.
10 Article 316, para 1
1. Amendments to this Convention, other than those referred to in paragraph 5, shall enter into force for the States Parties ratifying or acceding to them on the thirtieth day following the deposit of instruments of ratification or accession by two thirds of the States Parties or by 60 States Parties, whichever is greater. Such amendments shall not affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Convention.
12 Article 316, para 4(b):
4. A State which becomes a Party to this Convention after the entry into force of an amendment in accordance with paragraph 1 shall, failing an expression of a different intention by that State:
(a) be considered as a Party to this Convention as so amended; and
(b) be considered as a Party to the unamended Convention in relation to any State Party not bound by the amendment.