The 1994 Agreement, and Why Part XI Was Rewritten

In one line

Part XI as adopted in 1982 was unacceptable to the industrialised States and the Convention could not come into force with their support, so in 1994 Part XI was rewritten before it had ever operated.

In exam wording: the Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 was adopted by General Assembly resolution 48/263 of 28 July 1994; article 1 provides that States Parties undertake to implement Part XI in accordance with the Agreement; article 2 provides that the Agreement and Part XI shall be interpreted and applied together as a single instrument and that in the event of any inconsistency between the Agreement and Part XI, the provisions of the Agreement shall prevail; and article 4 provides that no State or entity may establish its consent to be bound by the Agreement unless it has previously established or establishes at the same time its consent to be bound by the Convention.

Why the Agreement was needed

Part XI as adopted embodied the New International Economic Order of the 1970s. It provided for mandatory transfer of technology to the Enterprise and to developing States; production limits to protect land-based producers of the same minerals; a review conference that could amend the regime; a financing obligation towards the Enterprise; and decision-making in which the industrialised States could be outvoted.

No industrialised State would ratify on those terms, and a Convention on the law of the sea without them would have governed nothing. Between 1990 and 1994 the Secretary-General convened informal consultations, and the Agreement was the result. It was adopted before the Convention entered into force on 16 November 1994.

The ten articles

Article 1: implementation of Part XI. States Parties to the Agreement undertake to implement Part XI in accordance with the Agreement. The Annex forms an integral part of the Agreement.

Article 2: relationship between the Agreement and Part XI.

Paragraph 1: the provisions of the Agreement and Part XI shall be interpreted and applied together as a single instrument. In the event of any inconsistency between the Agreement and Part XI, the provisions of the Agreement shall prevail.

Paragraph 2: articles 309 to 319 of the Convention shall apply to the Agreement as they apply to the Convention.

That single sentence in paragraph 1 is the whole legal effect. Part XI is not amended in form; it is overridden in substance by an instrument that prevails over it.

Article 3: signature. The Agreement shall remain open for signature at United Nations Headquarters by the States and entities referred to in article 305, paragraph 1, of the Convention for twelve months from the date of its adoption.