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
Quicktabs: Citation
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.
Yet refusing to allow direct application of the Convention in U.S. courts would also carry costs. It is consistent with some U.S. traditions to regard international law, even as it applies to individuals, as fully justiciable law, like domestic statutory and case law. In this view, applying the Convention in U.S. cases concerning individuals would be an ordinary exercise ofjudicial authority. In general, direct application of the Convention in cases involving individuals could have the salutary effect of promoting respect for basic human rights in other countries. There may be other benefits of such application as well. Recognizing the direct applicability of the Convention's prompt release articles in U.S. court, for example, could defuse conflicts with other states. In addition, the U.S. tradition of promoting international trade and commerce - reflected in the Medellin dissent's concern that the majority's decision "threatens to deprive ...businesses [and] property owners ....of the workable dispute resolution procedures that many treaties, including commercially oriented treaties, provide"'103 - suggests an historically strong reason not to read the Medellin Court's non-self-execution holding too broadly. The concern with safeguarding commercial relationships also counsels against writing the non-self-executing provisions of the Advice and Consent Resolution too broadly, or at least counsels in favor of insuring that U.S. legislation fully implements Convention provisions.
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.
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.
The United States is not today unalterably opposed to the dispute settlement provisions of the Convention. Indeed, it has already accepted them, since it has ratified the 1995 Fish Stocks Agreement and the 2000 Convention on Central and Western Pacific Fisheries, both of which incorporate by reference the dispute settlement provisions of the Convention.59 However, the Convention as a whole envisions roles for institutions and sets out rules potentially affecting a wide range of subject matters. The Resolution of Advice and Consent - especially its declarations and understandings relating to military activities - reflects an attitude of caution about U.S. participation in the Convention's third-party dispute settlement procedures. The Resolution appears to reflect some of the concerns of the unilateralists/anti-institutionalists.
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.
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.