Evidence: Most Popular
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.
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.
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.
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.
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.
"The ability to operate freely at sea is among the most important enablers of joint and interagency operations ...."72 Therefore, sustainable access to key regional sea lines of communication directly impacts the efficacy of nearly every maritime mission set in the U.S. arsenal. Especially affected are those missions conducted in the littoral and near shore waters up to 200 nautical miles from shore. This is because the near shore environment represents a primary operating area for critical "sea basing, amphibious, expeditionary and intelligence collection operations."73 Intelligence collection is particularly important given the U.S. national security establishment's continuous need for a broad range of operational indicators. As was seen during the Cold War, the ability to collect intelligence within foreign EEZ's can contribute to a state of "enforced transparency" between potential adversaries, as well as serve a forcing function of encouraging candor and good faith in military and political dealings.74 In addition to intelligence collection, other enduring maritime mission sets-many of a constabulary nature, such as maritime interdiction in support of counter piracy, counter narcotics, and Proliferation Security Initiative-also stand to be adversely impacted to the extent coastal nations engage in EEZ "securitization lawfare.,"75 Also, any limiter on DoD's ability to sustain and refine the aforementioned maritime mission sets ultimately constrains Congress' ability to efficiently allocate national security procurement resources and optimize return on that investment. For example, the U.S. Congress has invested heavily in littoral and near shore naval platforms, authorizing over $12 billion through fiscal year 2011 for construction of next generation littoral combat ships.76 Similarly, it authorized $1.3 billion from fiscal years 2006 through 2010 for DoD training of foreign military and maritime security forces. United States to sustain homeland defense as well as theater security cooperation missions in waters adjacent to partner nations, UNCLOS "securitization" claims will constitute a continuing planning restraint maritime missions in the near shore environment.
Recent geopolitical developments in the Arctic region highlight yet another circumstance where both UNCLOS and U.S. national security interests are implicated, as thawing Arctic floes have brought the Arctic Ocean's untapped resource and navigation potential increasingly to the fore. States with Arctic Ocean borders-United States, Canada, Russia, Finland, Iceland, Norway, and Sweden-are, therefore, concerned with the full spectrum of national security implications-political, economic, and military-associated with increased Arctic Ocean maritime transit and resource related activity. Conflicting claims to the Arctic Ocean's waters and seabed have already commenced. A prime example is Russia's 2007 claim to the Lomonosov Ridge a 1,200 mile long undersea swath in the vicinity of the North Pole as part of its continental shelf.68 While the Lomonosov Ridge is currently considered beyond the jurisdictional reach of any country and, therefore, administered by the ISA69 "Note: Frozen Assets: Ownership of Arctic Mineral Rights Must be Resolved to Prevent the Really Cold War ." George Washington International Law Review. Vol. 41, No. 3 (2011): 651-680. [ More (5 quotes) ], confirmation of its claim to exclusive resource extraction rights.70 Indeed the trend toward utilizing the CLCS appears to be intensifying, and will likely play a central role in de-conflicting Arctic Ocean claims. One such indication is the 500% year to year increase in petitions submitted to the CLCS from 2008 to 2009. As in the East and South China Sea, it appears likely that UNCLOS and its regulatory entities will play acritical role in economic and national security "scrum" beginning to play out in the Arctic region.
Further evidence of a multi-pronged strategy can be inferred from China's operational military efforts to reinforce its ultra vires UNCLOS positions. Specifically, China has, on occasion, engaged in illegal, unsafe airborne and seaborne tactical maneuvers in an attempt to dissuade the United States from conducting military operations-principally, military survey power in the region. it has occasionally demonstrated a willingness to employ military force in operations and intelligence collection-within the Chinese EEZ. Additionally, support of its contested claims to sovereignty over certain offshore islands. short, by pressing contested claims to maritime territorial sovereignty while simultaneously pursuing aggressive military tactics in support of ultra vires security rights in offshore waters, China has demonstrated an efficacious strategy to consolidate control over the vast majority of the South and East China Seas. Toward this end, China has the advantage of operating from interior lines-both geographically and rhetorically vis a vis the United States, due both to its status as an UNCLOS member nation and a state attempting to regulate the waters adjacent to its coast. Thus, to the extent the United States seeks to project a maritime military presence in a manner inconsistent with China's UNCLOS stance, China may gain some traction domestically, as well as internationally, by criticizing the United States as an imperialistic power seeking to threaten and provoke a distant, peace-loving nation in the waters adjacent to its coast. U.S. UNCLOS abstention will continue to facilitate China's ability to cast U.S. UNCLOS interpretation as self-serving and disingenuous by highlighting that the United States is seeking to extract the benefit of UNCLOS butt avoiding membership due to its distrust ofthe international community. It is not inconceivable that such a narrative would resonate with many coastal states, especially if the United States' relative regional and global primacy is seen to be diminishing. All else equal, nations with vulnerable coasts and small fleets might perceive an UNCLOS "securitization" norm as more attractive than the current, generally-accepted norm permitting robust military operations within EEZs and almost unrestricted innocent passage through territorial waters. Furthermore, as an UNCLOS member nation, China remains better positioned than the United States to influence UNCLOS interpretation from within UNCLOS regulatory institutions such as the ISA, ITLOS, and CLCS.
Having long recognized the efficacy of legal "securitization" claims as a mechanism through which to bolster regional sea control, China has apparently developed an effective strategy in furtherance of its objective." This strategy rests upon China's UNCLOS stance and includes declaratory statements incorporated into China's UNCLOS ratification depository instrument and includes domestic legislation formally claiming security interests in its territorial seas and EEZ, development of supporting legal scholarship, and a complementary strategic communications campaign.12 As China gradually works to set conditions conducive to marginalizing U.S. influence in the East, Southeast, and South Asia regions, its dramatic economic growth will likely further boost its ability to influence the behavior of smaller regional neighbors in a manner consistent with China's UNCLOS "securitization" narrative. The absence of a formal U.S. commitment to UNCLOS is yet an additional vulnerability China can exploit in inducing its neighbors' to acquiesce in its territorial seas and EEZ claims. Such acquiescence would strengthen China's ability to claim territorial sea sovereignty over vast swaths of the East and South China Seas, seriously hampering the United States' ability to project military power in the region.