Revision of U.S. ratification of UNCLOS would subject U.S. military to rulings by third-party tribunals from Thu, 02/10/2022 - 09:15
Acceding to UNCLOS would expose the U.S. to lawsuits on virtually any maritime activity, such as alleged pollution of the marine environment from a land-based source or through the atmosphere. Regardless of the merits, the U.S. would be forced to defend itself against every such lawsuit at great expense to U.S. taxpayers. Any judgment rendered by an UNCLOS tribunal would be final, could not be appealed, and would be enforceable in U.S. territory.
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Acceding to UNCLOS would expose the U.S. to lawsuits on virtually any maritime activity, such as alleged pollution of the marine environment from a land-based source or through the atmosphere. Regardless of the merits, the U.S. would be forced to defend itself against every such lawsuit at great expense to U.S. taxpayers. Any judgment rendered by an UNCLOS tribunal would be final, could not be appealed, and would be enforceable in U.S. territory.
Unlike a resolution passed by the U.N. General Assembly or a recommendation made by a human rights treaty committee, judgments issued by UNCLOS tribunals are legally enforceable upon members of the convention. Article 296 of the convention, titled “Finality and binding force of decisions,” states, “Any decision rendered by a court or tribunal having jurisdiction under this section shall be final and shall be complied with by all the parties to the dispute.”
Of all institutions, the Navy should be alive to the dangers that such a treaty entails. After all, the service's civilian leader, Secretary Donald Winter, for one has expressed grave concerns about the impact domestic environmentalists and their litigiousness currently have on Navy and Marine Corps' operations.
Such challenges are likely to pale by comparison with the edicts handed down by multilateral tribunals whose deciding votes are, in every instance, selected by international bureaucrats (in the case of one arbitral panel, by the U.N. secretary-general himself). A recent paper written by Dr. Jeremy Rabkin for the American Enterprise Institute under the provocative title, "Do We Really Want to Place the U.S. Navy Under International Judicial Supervision?" makes clear that, by so doing, we would open ourselves to expanded attacks via "Lawfare" — the technique of using treaties, courts and international law as an asymmetric weapon against us:
"It is estimated that the United States has more practicing lawyers than all other countries put together. Separation of powers and an active, independent judiciary invite challenges to decisions of officials in the executive branch, just as we scrutinize and challenge so many other institutions in our society. What that means is that it is much harder for the United States to shrug off international legal claims than it may be for more centralized or repressive countries such as China."
Most influential, though, may be support from the U.S. Navy, which is enamored of the treaty's guarantee of navigational freedom. Not that such freedom is threatened now: The Russian navy is rusting in port, China has yet to develop a blue water capability, and no country is impeding U.S. transit, commercial or military.
At the same time, some ambiguous provisions may impinge on freedoms U.S. shipping now enjoys. In Senate testimony last fall, State Department legal adviser William H. Taft IV noted the importance of conditioning acceptance "upon the understanding that each Party has the exclusive right to determine which of its activities are 'military activities' and that such determination is not subject to review." Whether other members will respect that claim is not at all certain. Admiral Michael G. Mullen, the vice chief of naval operations, acknowledges the possibility that a Law of the Sea tribunal could rule adversely and harm U.S. "operational planning and activities, and our security."
In the past, writers on international law acknowledged that states could not be expected to submit the most sensitive political questions--those most vital to national security--to international arbitration. Most of the world seems to have abandoned this view, but most nations no longer make great efforts to provide for their own defense. So, even as the United States has substantially reduced the scale of its naval forces, since the peak years of the Reagan build-up we have acquired a larger and larger share of the world's naval capacity. Others have shrunk their forces further and faster.
In past centuries, rules about the conduct of ships at sea emerged from agreements among major naval powers, and there were always a number of naval powers engaged in challenging, enforcing, and accommodating agreed-upon standards. Now, when the United States (by some estimates) actually deploys a majority of the world's naval capacity, we are told that our security requires us to participate with 150 other states in electing international judges to determine, in the last analysis, what rules our Navy must accept.
To find this convincing, one must be awed by the moral authority of the U.N. majority. To think that way means that we seek consensus at almost any price. Why do we claim to be independent, why do we invest so many billions in defense capacities, if we are prepared to go along with an international consensus, articulated (and -readjusted) by international jurists? The Senate should think long and hard before making the U.S. Navy answer to the U.N version of the Law of the Sea.
Equally flawed is the proponents’ insistence that Law of the Sea Treaty tribunals will be unable to interfere with U.S. military activities. Although LOST exempts “disputes concerning military activities” from the purview of its dispute resolution mechanisms, the Treaty does not define “military activities.”
Proponents of LOST argue that the United States can make a declaration that it will define “military activities” for itself. However, this amounts to a reservation to the treaty, which is expressly prohibited by LOST. LOST must be accepted or rejected in its entirety. Furthermore, if the U.S. military were allowed to make such a unilateral determination under LOST, the militaries of other nations would exercise the same option, creating an anarchic situation that would defeat the purposes of LOST altogether. LOST was clearly not intended to allow this to happen.
Even though LOST permits a state party to declare “disputes concerning military activities” to be exempt from dispute settlement, such a declaration would very likely be the beginning of the process, not its end.
As I have noted earlier, the Treaty does not define “military activities.” At the very least, therefore, were the United States freely to assume the foregoing obligations, it would set the stage for injunctions, or other adverse rulings, against the U.S. military to be sought from one LOST dispute resolution agency or another. Given the stacked-deck nature of these mechanisms, it is far from certain that our opponents will fail.
This applies in spades to things we consider to be “military activities” but that may well be depicted by our opponents in ITLOS or arbitration proceedings as environmentally harmful activities (e.g., charges that Navy sonars are responsible for killing whales and dolphins). Importantly, in the event of any disagreement over whether an activity is military in nature, the Treaty grants to its dispute resolution mechanisms the right to make that determination themselves.
There are even more complex problems. UNCLOS sets up a special law of the sea tribunal with jurisdiction to interpret provisions of the Convention that apply equally to military and non-military uses of the sea. Although military uses can be excluded from the purview of the tribunal by particular states on ratifying the UNCLOS (article 298.1.b), a decision interpreting the UNCLOS's language relating to "innocent passage" or "transit passage" through straits, even if rendered in a case involving only non-military activities, would necessarily apply also to military uses. The distinction between military and non-military application of the tribunal provisions is thus untenable. Moreover, even if the United States and other naval powers take advantage of this available exclusion, nothing they do can stop other states from having their own military activity adjudicated by the tribunal. Despite the fact that the tribunal's decision binds only the parties before it, the tribunal's interpretation of a provision of the UNCLOS that applies equally to all parties affects international correspondence in ways potentially disastrous to American naval power.
The three Republican senators explain their opposition to ratifying UNCLOS, noting that "[c]eding any authority to an international body is not only a threat to our sovereignty, it also creates another avenue for other nations to stop U.S. unilateral activity."
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