Dispute resolution mechanisms in UNCLOS do not threaten U.S. military action
Some opponents of UNCLOS have argued that by ratifying UNCLOS, U.S. military forces could be subject to adverse ruling by international tribunals through the dispute resolution mechanisms of the treaty. However, the U.S. defense department has reviewed the relevant law and has found no undue liability risk to U.S. forces. Furthermore, in the Senate's Advice and Consent resolution that would ratify UNCLOS, the U.S. has taken advantage of article 298(1) in UNCLOS to exempt itself from all dispute settlement.
Quicktabs: Arguments
Last year, before the Senate Foreign Relations Committee, Administration officials expressed their serious concerns about whether the Convention's dispute resolution process could possibly affect U.S. military activities. A review was conducted within the Executive Branch on whether a Law of the Sea tribunal could question whether U.S. activities are indeed "military" for purposes of the Convention's military activities exception clause. Based on the Administration's internal review, it is clear that whether an activity is "military" is for each State party to determine for itself. The declaration contained in the current Resolution of Ratification, stating the U.S. understanding that each Party has the exclusive right to determine which of its activities are "military activities" and that such determinations are not subject to review, has appropriately addressed this issue.
Third, some allege that in joining, our military would be subject to the jurisdiction of international courts – and that this represents a surrendering of U.S. sovereignty. But once again, this is not the case. The Convention provides that a party may declare it does not accept any dispute resolution procedures for disputes concerning military activities. This election has been made by 20 other nations that have joined the Convention, and the United States would do the same. The bottom line is that neither U.S. military activities nor a U.S. decision as to what constitutes a U.S. military activity would be subject to review by any international court or tribunal.
In 2003, Mark Esper, the Deputy Assistant Secretary of Defense for Negotiations Policy, testified"Statement of Mark T. Esper: On the U.N. Convention on the Law of the Sea (October 21, 2003) ." Testimony before the Senate Committee on Foreign Relations, October 21, 2003. [ More (3 quotes) ] that the Bush administration closely examined the LOS Convention, pored through the negotiating history of the Treaty, and reviewed the practices of international tribunals constituted under the Convention.43"Statement of Mark T. Esper: On the U.N. Convention on the Law of the Sea (October 21, 2003) ." Testimony before the Senate Committee on Foreign Relations, October 21, 2003. [ More (3 quotes) ] Based on the thorough examination, the administration took the position that the scope of the military activity exemption is solely within the ambit of the authority of each state party to determine for itself. Retired U.S. Navy Admiral William Schachte concurred, stating: “. . . No country would subordinate its international security activities to an international tribunal. . . . Certain disputes about military activities are considered ... to be so sensitive that they are best resolved by diplomatic means.”44
Responding to a question posed by Senator Lugar at a 2003 SFRC hearing regarding whether a tribunal could trump a state’s decision regarding whether an activity was “military” in nature, John Norton Moore emphatically stated"Statement of John Norton Moore: Senate Advice and Consent to the Law of the Sea Convention: Urgent Unfisinshed Business ." Testimony before the Senate Foreign Relations Committee, October 14, 2003. [ More (5 quotes) ]: “I believe the chances of this article being interpreted the way some are arguing and posing a risk to the United States is about like your deciding not to hold this hearing today because of the risk of the hearing room being hit by a meteorite. To be frank, Mr. Chairman, this is a silly objection. . . . ”45"Statement of John Norton Moore: Senate Advice and Consent to the Law of the Sea Convention: Urgent Unfisinshed Business ." Testimony before the Senate Foreign Relations Committee, October 14, 2003. [ More (5 quotes) ] The objection by critics of the LOS Convention and the purported risk of an overreaching tribunal misses one of the most basic rules of jurisprudence. If a court or tribunal acts beyond its jurisdiction, competence, or authority, such an action would be ultra vires and any decision or judgment issued by that court or tribunal would not be legally binding. Finally, of note is that many other countries have asserted an exemption under Article 298 to include either military activities or matters before the UN Security Council, including, Argentina, Australia, Belarus, Canada, Cape Verde, Chile, China, Germany, Mexico, the Republic of Korea, the Russian Federation, Tunisia, Ukraine, and the United Kingdom.46 Consequently, there is broad international support for the military activities exemption.