U.S. has resolved the ambiguity in military activities exemption clause
The United States, as authorized by Article 298, would exempt “military activities” from compulsory dispute resolution. Under the Convention, a state party has the exclusive right to determine what constitutes a “military activity.” The U.S. declaration states:
The Government of the United States of America declares, in accordance with article 298(1), that it does not accept any of the procedures provided for in section 2 of Part XV (including, inter alia, the Seabed Disputes Chamber procedure referred to in article 287(2)) with respect to the categories of disputes set forth in sub-paragraphs (a), (b), and (c) of article 298(1). The United States further declares that its consent to accession to the Convention is conditioned upon the understanding that, under article 298(1)(b), each State Party has the exclusive right to determine whether its activities are or were ‘‘military activities’’ and that such determinations are not subject to review.
Quicktabs: Arguments
The critics evince little knowledge of international or oceans law, and consequently make arguments contrary to U.S. interests. For example, some have argued that the provision in Article 88 that limits use of the high seas for "peaceful purposes" would constrain U.S. warships or prevent military activities on the high seas. (6) But to make this argument is to unknowingly adopt the "old" Soviet line, no longer embraced even by Russia, which was never supported by the United States. During the negotiations, the U.S. representative accurately described the "peaceful purposes" language when he said:
The term "peaceful purposes" did not, of course, preclude military activities generally. The United States had consistently held that the conduct of military activities for peaceful purposes was in full accord with the Charter of the United Nations and with the principles of international law. Any specific limitation on military activities would require the negotiation of a detailed arms control agreement. (7)
Indeed, in their zeal to complain about the convention, the critics promote an interpretation of this language that may be cited by opponents of future space-based missile defense programs. Thus, in a different context, the implication of this argument would be to ban the aforementioned defense systems because of our adherence to the Outer Space Treaty that contains the same "peaceful purposes" language. (8) Real world experience refutes this argument by showing warships of every major power freely navigating the world's oceans despite the convention being in force for 149 nations.
A concern raised by Administration witnesses last fall regarding resolution of disputes concerning military activities has been satisfactorily addressed by the proposed Resolution. As I testified before the Foreign Relations Committee, the ability of a Party to exclude disputes concerning military activities from dispute settlement has long been of importance to the United States. The U.S. negotiators of the Convention sought and achieved language that creates a very broad exception, successfully defeating attempts by certain other countries to narrow its scope. The United States has consistently viewed this exception as a key element of the dispute settlement package, which carefully balances comprehensiveness with protection of vital national interests.
This Administration reviewed whether the U.S. declaration on dispute settlement should in some way particularly highlight the military activities exception, given both its importance and the possibility, however remote, that another State Party might seek dispute settlement concerning a U.S. military activity, notwithstanding our declaration invoking the exception. As a result, the Administration recommended, and the proposed Resolution includes, a statement that our consent to accession to the Convention is conditioned on the understanding that each State Party has the exclusive right to determine whether its activities are or were “military activities” and that such determinations are not subject to review. Disputes concerning military activities, including intelligence activities, would not be subject to dispute settlement under the Convention as a matter of law and U.S. policy.
From the outset the United States has insisted that a system of compulsory dispute settlement be a part of any comprehensive convention on the law of the sea.45 The US delegation, in the person of the late Louis Sohn, took the lead in the negotiating group that developed the final package, which became Part XV of the Convention and its related Annexes. It is incongruous that the flexible provisions of Part XV, worked out under the leadership of the United States, should now be the basis of objection to the Convention. The objectors suggest, without basis in fact, that the United States might be dragged against its will into the jurisdiction of the Law of the Sea Tribunal, particularly with respect to our military activities.46 They ignore the terms of the Convention that provide, with respect to compulsory procedures entailing binding decisions, an opportunity for States, upon signing, ratifying or acceding to the Convention, "or at any time thereafter," to choose the binding procedure it will accept from a menu of settlement mechanisms. 47 The United States has indicated that it will choose arbitration under Annexes VII and VIII upon ac- cession.48 Further, the criticism ignores the provisions of Article 298 that provide that State parties may exclude from the applicability of "any" of the compulsory procedures providing for binding decisions, interalia,"disputes concerning military activities." One of the declarations that will accompany any US accession to the Convention will state that its accession "is conditioned upon the understand- ing that, under article 298(l)(b), each State Party has the exclusive right to deter- mine whether its activities are or were 'military activities' and that such determinations are not subject to review."
One particularly noteworthy issue is how the Advice and Consent Resolution treats the domestic enforceability of the Seabed Dispute Chamber's rulings. The text of the Convention explicitly provides for the domestic enforceability of Chamber decisions. According to Article 39 of Annex VI of the Convention, "decisions ofthe Chamber shall be enforceable in the territories of the States Parties in the same manner as judgments or orders of the highest court of the State Party in whose territory the enforcement is sought." Justice Stevens, who concurred with the majority in Medellin, cited Article 39 as an example of a treaty text that "necessarily incorporates international judgments into domestic law."85 Yet Article 39 is non-self-executing under the Senate's Advice and Consent Resolution, a position that is reinforced by another Resolution provision directed specifically at the decisions of this Chamber. This latter provision also calls for implementing legislation:
The United States declares, pursuant to [A]rticle 39 of Annex VI, that decisions of the Seabed Disputes Chamber shall be enforceable in the territory of the United States only in accordance with procedures established by implementing legislation and that such decisions shall be subject to such legal and factual review as is constitutionally required 86 and without precedential effect in any court of the United States.
Were an effort made to enforce a decision of the Seabed Disputes Chamber in U.S. court prior to implementing legislation, would the "clear" text of Article 39, which Justice Stevens believed points to its self-executing status, prevail? Or would a court defer to the Advice and Consent Resolution's call for implementing legislation? What obstacles might be posed by the "constitutionally required" reviews of Chamber decisions, to which the Resolution refers? U.S. courts regularly enforce the decisions of commercial arbitral tribunals, but in theory any international tribunal proceeding might lead to a result that presented constitutional due process problems and that hence could not be enforced in U.S. court.87 Those who dislike the prospect of domestic enforcement of Convention provisions also may, in light of Medellin, seek to add language to the Advice and Consent Resolution specifying that Chamber decisions do not create U.S. private rights or private causes of action. Thus, even if the "clear" language of the Convention text were to lead a court to conclude that Article 39 of Annex VI of the Convention was self-executing, such additional language in the Resolution might present another bar to the enforcement of chamber decisions in U.S. courts.
Noyes, John. "
The United States and the Law of the Sea Convention: U.S. Views on the Settlement of International Law Disputes in International Tribunals and U.S. Courts."
The Publicist. Vol. 1. (2009): 27-52.
[ More (9 quotes) ]
Furthermore, the United States has indicated that it may broadly construe the scope of the military activities exception. The U.S. State Department takes the position "that intelligence activities at sea are military activities for purposes of the U.S. dispute settlement exclusion under the Convention and thus the binding dispute settlement procedures would not apply to U.S. intelligence activities at sea."54 The Advice and Consent Resolution also includes an understanding providing that a U.S. military vessel's collection of "military survey data" is a "military activity."55 Hypothetical situations in which U.S. views concerning the scope of "military activities" might differ from the views of international judges or arbitrators are not difficult to imagine. For example, consider a case in which a coastal state challenged the collection in its EEZ of "military survey data" by a U.S. military vessel. Would an international tribunal accept the U.S. assertion that this data collection was a "military activity"? Or would the tribunal instead characterize a dispute over such data collection as one involving coastal state restrictions on the conduct of marine scientific research? Is military deployment of a listening or security device on a coastal state's continental shelf a "military activity" (likely the U.S. view), or would this deployment fall within the scope of the coastal state's control over installations on the continental shelf (under Article 60(1)(c) of the Convention)? The self- judging U.S. "military activities" condition in the Advice and Consent Resolution suggests that the United States desires to preserve its flexibility not to participate in certain third-party proceedings, and that the United States may well regard with great skepticism any attempt to proceed with a case that the United States deems to concern military activities. U.S. State Department and Department of Defense officials, along with military leaders, have stressed the importance ofthis "military activities" condition.
Noyes, John. "
The United States and the Law of the Sea Convention: U.S. Views on the Settlement of International Law Disputes in International Tribunals and U.S. Courts."
The Publicist. Vol. 1. (2009): 27-52.
[ More (9 quotes) ]
Third, the Advice and Consent Resolution contains a declaration that the United States does not accept Part XV, section 2 procedures "with respect to the categories of disputes set forth in subparagraphs (a), (b), and (c) of article 298(1)." 49 This declaration thus excludes from Part XV, section 2 the maximum categories of disputes that may be exempted under Article 298. The matters covered include disputes concerning: maritime delimitation of the territorial sea, the exclusive economic zone, and the continental shelf; historic bays; military activities; enforcement activities related to EEZ fisheries and marine scientific research; and "disputes in respect of which the Security Council of the United Nations is exercising the functions assigned to it by the Charter of the United Nations." This U.S. declaration would limit the ability of the United States to challenge the conduct of other states before third-party tribunals. By excluding "disputes concerning military activities," for example, the United States could not, according to Article 298(3), bring a third-party proceeding challenging the legality of military activities by coastal states that impeded U.S. attempts at transit passage through straits or innocent passage in the territorial sea. Nonetheless, the concern that the legality of the United States' own military activities might be challenged before a public, third-party tribunal apparently carries greater weight. Avoiding judicial scrutiny of the legality of U.S. uses of force, as occurred in the ICJ's Nicaragua and Oil Platforms cases, 51 or the concern that the United States might have to disclose military secrets to a tribunal, probably led the United States to include this military activities 52 exception.
Noyes, John. "
The United States and the Law of the Sea Convention: U.S. Views on the Settlement of International Law Disputes in International Tribunals and U.S. Courts."
The Publicist. Vol. 1. (2009): 27-52.
[ More (9 quotes) ]
The U.S. Resolution of Advice and Consent does not formally contain reservations. The Convention generally prohibits reservations, 35 although Article 298 permits optional declarations by which states can exclude limited categories of disputes from the Convention's third-party dispute settlement provisions. Despite the general prohibition on reservations, several states have appended understandings or interpretive declarations when they have signed or ratified the Convention. Unlike reservations, understandings and interpretive declarations in theory do not "purport[] to exclude, limit, or modify [a] state's legal obligation." 36 Instead, interpretive declarations and understandings "specify or clarify the meaning or scope attributed by the declarant to a treaty or to certain of its provisions."37 The line between a permissible interpretive declaration and an impermissible reservation is not always easy to discern, for the name that a state attaches to a statement about a treaty is not dispositive. The U.S. Advice and Consent Resolution contains declarations that are authorized under the Convention and that may limit Convention provisions that otherwise would apply (notably under Article 298). The Resolution also contains interpretative declarations and understandings that legally cannot, under Article 310 of the Convention, "purport to exclude or to modify the legal effect of the provisions of th[e] Convention in their application to" the United States.
The Advice and Consent Resolution helps us discern U.S. positions towards the Convention. Although this Resolution in theory could change in a future Congress, it is the product of an intensive interagency vetting within the U.S. government, and significant aspects of the Resolution reflect longstanding U.S. positions held by both Democratic and Republican administrations. The focus of this Part of this article is on the Advice and Consent Resolution's provisions that address the jurisdiction of international courts and tribunals operating under the Convention. These provisions suggest the United States will interpret the jurisdiction of third-party tribunals restrictively and will attempt to limit U.S. amenability to the jurisdiction of international tribunals as much as possible.
Noyes, John. "
The United States and the Law of the Sea Convention: U.S. Views on the Settlement of International Law Disputes in International Tribunals and U.S. Courts."
The Publicist. Vol. 1. (2009): 27-52.
[ More (9 quotes) ]
The issue of innocent passage is raised by the concept of the territorial sea.207 In interpreting Article 21 of UNCLOS, some countries have adopted the view that they may, with due notice, create regulations and laws that restrict innocent passage through their territorial sea.208 The greatest restriction in these liberal navigation rules on innocent passage for the United States is the demand for prior notification and permission for the passage of a U.S. war vessel.209 The Convention recognizes the right of passage through the territorial seas, allowing for overflight and navigational freedom of the high seas.210 Currently, the lenient navigation rules include the immutable legal right for ships and aircrafts to travel the international straits without coastal states' interference.211 However, some UNCLOS III members may propose to amend the concept of freedom of navigation to allow the exclusion of vessels.212 As a member of UNCLOS III, the United States would be able to block such negative amendments.213 Further, if it joined UNCLOS, the United States could potentially prevent or decrease "the backsliding" by states that have previously abandoned their excessive maritime claims, yet wish to reinstitute those claims given that the United States is currently not a member.
MOORE: The second point in relations to, are we going to be inhibited in something like the Cuban Missile Crisis, for example. And this is, I think, also something that has some misperceptions about the treaty. This is basically a treaty for peacetime settings. This does not in any way, shape or form interfere with the legal rights of the United States for defense, individual or collective defense, or any of our fundamental kinds of foreign policy issues that we're engaged in. There is nothing in the treaty that has any kind of inhibition that would be a problem for the United States in the Cuban Missile Crisis or in any of the other national security and defense issues that this country has been involved in.
In fact, the chiefs have testified over and over again just to the contrary of that. That is that this helps United States mobility. It helps us move around the world's oceans. And for those who have noticed the latest strategy, Naval strategy of the United States, it's called a 1,000-ship Navy. It is a matter of cooperation with countries all over the world in dealing with terrorism and piracy and all the other issues. We are severely harmed if we are not part of this treaty and are empowered basically to deal with that issue.
Despite the ambiguity in the language of UNCLOS and the divergence in interpretation of the text, there is some evidence that the Convention did not intend to broadly exclude peacetime military operations in the EEZ.58 For instance, the 1949 International Court of Justice (ICJ) Corfu Channel decision refers to the freedom of navigation of warships in peacetime as a ‘general and well-recognized principle.’59 The ICJ’s findings in the Corfu Channel case were influential in the development of the law of the sea in the UNCLOS conferences.60 This finding is crucial since the freedom of navigation is the foundation for military operations at sea.61 However, the Court’s decision did not specify the scope of the rights included in the freedom of navigation of warships. During UNCLOS III, the President of the Conference, Tommy T.B. Koh, commented on the question of military activities in the EEZ by stating in 1984:
The solution in the Convention text is very complicated. Nowhere is it clearly stated whether a third state may or may not conduct military activities in the exclusive economic zone of a coastal state. But, it was the general understanding that the text we negotiated and agreed upon would permit such activities to be conducted. I therefore would disagree with the statement made in Montego Bay by Brazil, in December 1982, that a third state may not conduct military activities in Brazil’s exclusive economic zone[...].62
Unfortunately, the issue of military activities in the EEZ remains ambiguous and unsettled.
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