Dispute resolution mechanisms in UNCLOS are not a reason to reject the treaty
The costs associated with the dispute resolution provisions in UNCLOS are similar to those the United States is already subject to under the principles of universal jurisdiction and territoriality and numerous other agreements the U.S. has already ratified. Furthermore, the Convention provides the United States with an escape from mandatory dispute resolution which the U.S. has already invoked in its signing statements to ensure that the U.S. military will not be threatened by UNCLOS tribunals.
Quicktabs: Arguments
There is no doubt that external dispute resolution infringes upon U.S. sovereignty and it is therefore not surprising that staunch advocates of sovereignty steadfastly oppose the Convention, in part due to its dispute resolution mechanisms. However, the costs associated with the Convention’s dispute resolution provision are similar to those the United States is already subject to under principles of universal jurisdiction and territoriality. Furthermore, the Convention provides the United States with an escape from mandatory dispute resolution. In light of this, arguments against ratification of the Convention based upon sovereignty rooted in the dispute resolution mechanisms are outweighed by the benefits the Convention offers to the United States.91
The role of the Law of the Sea Tribunal is to resolve disputes over the Convention. The Convention mandates that the Tribunal resolve all disputes, except those involving military activities. Opponents of the Convention argue that the tribunal could dispute U.S. designations of certain activities as military, forcing the U.S. to limit military operations. Some even claim American “citizens could be dragged before politically motivated foreign jurists.”18
Professor John Norton Moore, the leading U.S. expert on the law of the sea, told the Senate Foreign Relations Committee that the chances of the Tribunal undermining U.S. military operations was comparable to that of a meteorite striking the capitol building.19 Still, administration officials have taken precautions. Upon joining the Convention, the United States would submit a declaration stipulating that it is acceding on the condition that states themselves have the authority to decide whether activities are military.20 Opponents think that even this precaution leaves a chance of the Tribunal harassing the U.S. military.
As a party to the Convention, however, the United States can nominate the judges to sit on the tribunal, rendering this wildly remote possibility even more unlikely. If the United States does not ratify the Convention, it has no control over the decisions the Tribunal reaches. The Tribunal will never have power over the U.S. military, but its decisions will form precedents that will help resolve future maritime disputes. Those precedents would affect U.S. interests.
[MYTH] The Convention mandates another tribunal to adjudicate disputes.
- The Convention established the International Tribunal for the Law of the Sea. However, Parties are free to choose other methods of dispute settlement. The United States would choose two forms of arbitration rather than the Tribunal.
- The United States would be subject to the Sea-bed Disputes Chamber, should deep seabed mining ever take place under the regime established by the Convention. The proposed Resolution of Advice and Consent makes clear that the Sea-bed Disputes Chamber’s decisions “shall be enforceable in the territory of the United States only in accordance with procedures established by implementing legislation and that such procedures shall be subject to such legal and factual review as is constitutionally required and without precedential effect in any court of the United States.” The Chamber’s authority extends only to disputes involving the mining of minerals from the deep seabed; no other activities, including operations on the surface of the oceans, are subject to it.
The presence of a clause providing binding arbitration should not be viewed as a limitation on U.S. sovereignty. The United States retains, as do all countries ratifying UNCLOS, the right to resolve conflicts through diplomatic means. The arbitration provision provides further means for countries to resolve disputes. In essence, it provides additional rights and capabilities to the states that would not normally exist. As such, it serves as an extended means of enforcing sovereignty when diplomatic solutions fail. Therefore, arbitration is not a limit on the sovereignty of states, but rather a guardian of state sovereignty.
While the ITLOS decision may indeed be cheered in naval circles for its ringing affirmation of the sovereign immunity of warships (possibly also for military aircraft, although they are not defined in the LOS Convention, nor is their sovereign immunity addressed), it also serves as a reminder of the awkward position of the U.S. as a non-party to the LOS Convention (the Convention has been pending before the senate since 1994, but the senate has yet to give its advice and consent to accession). Accordingly, should a similar incident occur involving a U.S. Navy or Coast Guard warship, the U.S. would not be able to apply to the ITLOS for the vessel’s release. Should the U.S. become a party to the LOS Convention, it should also take note of the fact that Argentina shrewdly amended its article 298 declaration on October 26th (four days before instituting its first legal action under Annex VII of the LOS Convention) to remove its early rejection of the LOS Convention’s compulsory dispute settlement procedures with respect to “military activities by government vessels and aircraft engaged in noncommercial service.” (¶ 34). In presenting the Convention to the senate in 1994, the Clinton administration recommended that the U.S. exempt military activities from the Convention’s compulsory dispute settlement procedures. Proposed declarations by the Senate Foreign Relations Committee in 2004 and 2007 adopted that position. This case demonstrates at least one potential drawback to such exemptions.
We would do well to remember the original justifications for including the third-party dispute settlement provisions in the Convention. These justifications - which U.S. officials articulated and supported during UNCLOS III - include promoting certainty, predictability, and stability, with respect to rules that greatly benefit the United States.105 These dispute settlement provisions can help deter illegal behavior, as well as promote the peaceful settlement of disputes. Domestic enforcement of Convention provisions can also serve this end. At the most fundamental level, the Convention furthers the rule of law in the world - the values of using agreed-upon rules and procedures to resist unilateral assertions of jurisdiction or sovereign control, resolving differences even-handedly according to established rules, and providing stable expectations for international actors. Giving full effect to provisions for third-party dispute settlement at the international and national levels would help further these values.
Refusing to fully embrace the third-party dispute settlement mechanisms of the Convention has its costs. As noted above, Article 298(3) of the Convention would prohibit the United States from judicially challenging other states' "military activities," if the United States declares itself exempt from third-party proceedings involving military activities. The same is true of other matters falling within the scope of Article 298, including the Article 298(1)(b) optional exception for enforcement activities concerning EEZ fisheries and marine scientific research. The United States supports unimpeded marine scientific research and has a distant-water fishing industry. Under the Advice and Consent Resolution, however, the United States could not invoke the Convention's provisions on compulsory procedures entailing binding decisions to protect U.S. actors who engage in those activities from interference by other coastal states.1 0 1 The record of tribunals operating under the Convention should help to assure the United States that those tribunals can help to reinforce Convention norms, to the benefit of the United States. For example, the International Tribunal for the Law of the Sea has, in cautious fashion, reinforced the text of and the basic compromises embodied in the Convention.
U.S. concerns about third-party dispute settlement were rarely voiced when the Convention was being negotiated. Indeed, the United States strongly supported third-party dispute settlement at the Third United Nations Conference on the Law of the Sea (UNCLOS III), the forum at which the Convention was negotiated during 1973-1982. U.S. negotiators regarded the dispute settlement provisions as important to achieving consensus at the negotiations and contributing to stability and predictability with respect to law of the sea disputes. According to Professor Louis B. Sohn, writing a third of a century ago during UNCLOS III, a
principal concern of the United States in the law of the sea negotiations is to provide procedures leading to a binding settlement of law of the sea disputes. Without such procedures it might be difficult to reach the final compromise needed to arrive at an overall solution of the issues before the Conference. The value of such a compromise would be greatly diminished if the parties to the treaty retained the right of unilateral interpretation, without any chance for an impartial adjudication. The purpose of the law of the sea negotiations is to achieve stability, certainty, and predictability, thus removing, or at least diminishing, the conflicts over law of the sea issues which otherwise might threaten the peace of the world. Only an effective method of dispute settlement can remove this danger.
Statements of U.S. officials and U.S. proposals at UNCLOS III emphasized the need for a comprehensive dispute settlement system that would apply with minimal exceptions to all parties and to all parts of the Convention.21 The binding third-party dispute settlement provisions should yield uniform interpretations of the Convention, with the United States favoring recourse to a permanent law of the sea tribunal to further that goal.22 Another U.S. objective was "to broaden the access to dispute settlement methods," opening some procedures to individuals and international organizations.23 The United States was one of the leading proponents of a comprehensive, binding third-party dispute settlement system at UNCLOS III that would lead to uniform interpretation and application of the Convention.
Several more forceful responses to the critics of the Convention's obligatory dispute settlement provisions are in order. First, the U.S. has already accepted the Convention's dispute settlement system with respect to certain significant categories of disputes (by ratifying the 1995 Fish Stocks Agreement, which incorporates the Convention's dispute settlement provisions).54 Second, one can make a strong case that third-party dispute settlement has led to decisions that strengthen the Convention's rules and will lead to many more. For example, in its merits decision in the Saiga case, the ITLOS reinforced the concept of the EEZ as a zone of limited coastal state jurisdiction, which extends neither to customs matters nor generally to all matters affecting a coastal state's "public interest."55 Third, the U.S. itself might find the Convention's dispute settlement system useful. For instance, arbitration could be threatened or pursued in order to oppose and publicly expose other states' illegal straight baseline claims.56 The Convention's dispute settlement provisions can help prevent the compromises embodied in the Convention from unraveling.
The United States has considerable power to determine how accession to Convention would affect its national interests. This is primarily a function of the many years of negotiations getting the treaty to its 1994 form. More recent specific guidance provided by the U.S. Senate Foreign Relations Committee on conditions for U.S. accession to the treaty are laid out in a lengthy resolution identifying very specific declarations, understandings, and conditions that ensure protection of U.S. interests.10 The conditions address a wide array of issues including representation on treaty decision-making bodies, ability to enforce U.S. environmental law, and rights to free navigation, as well as harmonization of the treaty with specific aspects of U.S. law. A particular concern to many in the United States is the specter of foreign courts making decisions about navigation and resource protection activities that ultimately affect U.S. interests. This concern could be said to be overstated for three reasons. First, accession to the Convention will allow the U.S. to have a say in the election of members of the Tribunal and to select members of arbitration panels making decisions. Second, and more important, is the fact that the U.S., as part of its accession (or any time thereafter), has the legal right to request the type of body it wants decisions concerning U.S. interests to be made by. The choices the United States would have include:
- A hearing before the International Tribunal for the Law of the Sea (ITLOS), a standing tribunal of 21 judges, each from a different nation, that serve nine year terms. The earliest the U.S. could get a seated judge would be in late 2008, when seven seats open.
- A hearing before the International Court of Justice (ICJ), a UN court of 15 judges appointed by the General Assembly and Security Council. The U.S. currently has one sitting judge.
- A special arbitral tribunal under “Annex VIII” made up of environmental, marine science, navigation and fisheries experts of which the U.S. would pick two of the five arbitrators.
- A hearing before an “Annex VII” arbitration panel composed of five members of which the U.S. would be allowed to choose one and be involved in the appointment of at least three others.
The U.S. has already indicated its decision to adjudicate conflicts under the last two options, using the third option for fisheries, environmental and navigational disputes, and the fourth option for other disputes, meaning that all decisions concerning U.S. interests would go to a small arbitral body whose members are selected with U.S. input. Finally, nations may opt out of any of the above adjudication procedures when the issue debated concerns such issues as scientific research, boundary disputes, military activities and setting of limits in natural resource extraction within a nation’s EEZ.