Revision of Dispute resolution mechanisms in UNCLOS do not threaten U.S. military action from Tue, 02/08/2022 - 16:46
Some opponents of UNCLOS have argued that by ratifying UNCLOS, U.S. military forces could be subject to adverse ruling by international tribunals through the dispute resolution mechanisms of the treaty. However, the U.S. defense department has reviewed the relevant law and has found no undue liability risk to U.S. forces. Furthermore, in the Senate's Advice and Consent resolution that would ratify UNCLOS, the U.S. has taken advantage of article 298(1) in UNCLOS to exempt itself from all dispute settlement.
Quicktabs: Arguments
Myth 3: The Convention would permit an international tribunal to frustrate the operations of the U.S. Sea Services.
Wrong. No international tribunal would have jurisdiction over the U.S. Navy, Marine Corps, or Coast Guard. Disputes concerning military activities can be completely excluded from the Convention's resolution provisions, and the United States has the exclusive right to determine what constitutes a U.S. military activity. Since 1982, all Chiefs of Naval Operations have supported ratification, and in May 2007 the Coast Guard Commandant underscored the need for ratification.
Last year, before the Senate Foreign Relations Committee, Administration officials expressed their serious concerns about whether the Convention's dispute resolution process could possibly affect U.S. military activities. A review was conducted within the Executive Branch on whether a Law of the Sea tribunal could question whether U.S. activities are indeed "military" for purposes of the Convention's military activities exception clause. Based on the Administration's internal review, it is clear that whether an activity is "military" is for each State party to determine for itself. The declaration contained in the current Resolution of Ratification, stating the U.S. understanding that each Party has the exclusive right to determine which of its activities are "military activities" and that such determinations are not subject to review, has appropriately addressed this issue.
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.
In 2003, Mark Esper, the Deputy Assistant Secretary of Defense for Negotiations Policy, testified"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.43"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