ARGUMENT HISTORY

Revision of Dispute resolution mechanisms in UNCLOS do not threaten U.S. military action from Sun, 09/08/2013 - 08:32

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Simply not the case that U.S. military would be subject to U.N. jurisdiction under UNCLOS

Third, some allege that in joining, our military would be subject to the jurisdiction of international courts – and that this represents a surrendering of U.S. sovereignty. But once again, this is not the case. The Convention provides that a party may declare it does not accept any dispute resolution procedures for disputes concerning military activities. This election has been made by 20 other nations that have joined the Convention, and the United States would do the same. The bottom line is that neither U.S. military activities nor a U.S. decision as to what constitutes a U.S. military activity would be subject to review by any international court or tribunal.

Panetta, Leon. "Statement from Leon Panetta: The Law of the Sea Convention: The U.S. National Security and Strategic Imperatives for Ratification (Treaty Doc. 103-39) ." Testimony before the U.S. Senate Committee on Foreign Relations, May 23, 2012. [ More (2 quotes) ]
Thorough review of dispute resolution and military activities concern under Bush Administration concluded that it was unlikely to be a threat

In 2003, Mark Esper, the Deputy Assistant Secretary of Defense for Negotiations Policy, testifiedEsper, Mark T. "Statement of Mark T. Esper: On the U.N. Convention on the Law of the Sea (October 21, 2003) ." Testimony before the Senate Committee on Foreign Relations, October 21, 2003. [ More (3 quotes) ] that the Bush administration closely examined the LOS Convention, pored through the negotiating history of the Treaty, and reviewed the practices of international tribunals constituted under the Convention.43Esper, Mark T. "Statement of Mark T. Esper: On the U.N. Convention on the Law of the Sea (October 21, 2003) ." Testimony before the Senate Committee on Foreign Relations, October 21, 2003. [ More (3 quotes) ] Based on the thorough examination, the administration took the position that the scope of the military activity exemption is solely within the ambit of the authority of each state party to determine for itself. Retired U.S. Navy Admiral William Schachte concurred, stating: “. . . No country would subordinate its international security activities to an international tribunal. . . . Certain disputes about military activities are considered ... to be so sensitive that they are best resolved by diplomatic means.”44

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Wilson, Brian and James Kraska. "American Security and Law of the Sea." Ocean Development & International Law. Vol. 40. (2009): 268-290. [ More (6 quotes) ]
Not remotely possible that tribunals could overrule U.S. on "military nature of activities"

Responding to a question posed by Senator Lugar at a 2003 SFRC hearing regarding whether a tribunal could trump a state’s decision regarding whether an activity was “military” in nature, John Norton Moore emphatically statedMoore, John Norton. "Statement of John Norton Moore: Senate Advice and Consent to the Law of the Sea Convention: Urgent Unfisinshed Business ." Testimony before the Senate Foreign Relations Committee, October 14, 2003. [ More (5 quotes) ]: “I believe the chances of this article being interpreted the way some are arguing and posing a risk to the United States is about like your deciding not to hold this hearing today because of the risk of the hearing room being hit by a meteorite. To be frank, Mr. Chairman, this is a silly objection. . . . ”45Moore, John Norton. "Statement of John Norton Moore: Senate Advice and Consent to the Law of the Sea Convention: Urgent Unfisinshed Business ." Testimony before the Senate Foreign Relations Committee, October 14, 2003. [ More (5 quotes) ] The objection by critics of the LOS Convention and the purported risk of an overreaching tribunal misses one of the most basic rules of jurisprudence. If a court or tribunal acts beyond its jurisdiction, competence, or authority, such an action would be ultra vires and any decision or judgment issued by that court or tribunal would not be legally binding. Finally, of note is that many other countries have asserted an exemption under Article 298 to include either military activities or matters before the UN Security Council, including, Argentina, Australia, Belarus, Canada, Cape Verde, Chile, China, Germany, Mexico, the Republic of Korea, the Russian Federation, Tunisia, Ukraine, and the United Kingdom.46 Consequently, there is broad international support for the military activities exemption.

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Wilson, Brian and James Kraska. "American Security and Law of the Sea." Ocean Development & International Law. Vol. 40. (2009): 268-290. [ More (6 quotes) ]
Concerns over international tribunal being used against US military forces fail to fully understand text of convention
Concerns have been raised that it is not in the best interests of the United States to have its maritime activities subject to the control of an international tribunal, like the International Tribunal for the Law of the Sea or the International Court of Justice (ICJ). That concern is clearly misplaced. While the Convention does establish a Tribunal, parties are free to choose other methods of dispute resolution. The United States has already indicated that if it becomes a party it will elect two forms of arbitration rather than the Tribunal or the ICJ. More importantly, this concern fails to recognize that no country would subordinate its national security activities to an international tribunal. This is a point that everyone understood during the negotiations of the Convention, and that is why Article 286 of the Convention makes clear that the application of the compulsory dispute resolution procedures of section 2 of Part XV are subject to the provisions of section 3 of Part XV, which includes a provision that allows for military exemptions, which would encompass military activities conducted pursuant to PSI. Some may try to argue that Article 288 allows a court or tribunal to make the final determination as to whether or not it has jurisdiction over a matter where there is a dispute between the parties as to the court’s jurisdiction. They argue that Article 288 could be read to authorize a court or tribunal to make a threshold jurisdictional determination of whether an activity is a military activity or not and, therefore, subject to the jurisdiction of the court or tribunal. However, Article 288 is also found in section 2 of Part XV and therefore does not apply to disputes involving what the U.S. Government has declared to be a military activity under section 3 of Part XV. I submit this interpretation is supported by the negotiating history of the Convention, which reflects that certain disputes, including military activities, are considered to be so sensitive that they are best resolved diplomatically, rather than judicially. This interpretation is also supported by a plain reading of the Convention.
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Schachte, William L. "Statement of Rear Admiral William L. Schachte: Accession to the 1982 Law of the Sea Convention and Ratification of the 1994 Agreement Amending Part XI of the Law of the Sea Convention ." Testimony before the Senate Armed Services Committee, April 8, 2004. [ More (4 quotes) ]

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