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
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 stated"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. . . . ”45"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.
1. When signing, ratifying, or acceding to this Convention or at any time thereafter, a State may...declare in writing that it does not accept any one or more of the procedures provided for in section 2 with respect to one or more of the following categories of disputes...”There then follows three categories of disputes: Maritime boundary disputes, disputes involving military activities, and disputes involving matters before the United Nations Security Council. The president has asked the Senate to exempt all three categories. The key language from Article 298.1 is: “A State may declare that it ... does not accept any one or more of the procedures provided for in section 2.” It is the right of the State, and solely the State, to completely and preemptively reject all of the dispute resolution procedures provided for in Section 2. It is those very procedures that the opposing State or international court or tribunal would have to rely upon to try to assert authority over us. It simply does not get any better than that---not in private contract law nor in treaty law. What this Convention makes clear is that a State party can completely reject all the dispute resolution procedures—on its own terms—for disputes involving maritime boundaries, military activities, and matters before the Security Council. There is simply no process or procedure whereby our determination can be subject to review, because we have already preemptively rejected all the procedures provided for in Section 2, including article 287 (choice of forum), article 288 (the right of a court or tribunal to determine its own jurisdiction), article 290 (provisional measures) and article 292 (prompt release). All permanent members of the United Nations Security Council (except the United States) and numerous other countries have taken the military activities exemption. They, like us, would never accept a court or tribunal acting ultra vires---beyond the limits of the Convention itself.
The negotiating history on the Convention is clear on this point. In 1976, Ecuador attempted to turn the “peaceful purposes” provisions into an arms control obligation. They got nowhere. In response to the argument by Ecuador in 1976, the U.S. replied:
“The term ‘peaceful purposes’ did not, of course, preclude military activities generally. The United States has consistently held that the conduct of military activities for peaceful purposes was in full accord with the Charter of the United Nations and with the principles of international law. Any specific limitation on military activities would require the negotiation of a detailed arms control agreement.”
See 66-68th plenary sessions in 1976. In 1985, the Secretary General of the United Nations reported that, “military activities which are consistent with the principles of international law embodied in the Charter of the United Nations, in particular Article 2, paragraph 4, and Article 52, are not prohibited by the Convention on the Law of the Sea.
- President Kennedy established a quarantine around Cuba under the authorities of the UN Charter (Article 51 on self-defense and Article 52 on regional security arrangements) and the Rio Treaty (which established the Organization of American States (OAS)). On October 23, 1962, OAS voted to approve a U.S.-sponsored quarantine of Cuba.
- President Ford’s use of military force to rescue the Mayaguez and its crew was a lawful use of force in self defense under Article 51 of the UN Charter.
- President Reagan deployed an aircraft carrier task force into the Gulf of Sidra to challenge Libya’s unlawful claim that the Gulf was Libyan internal waters. During U.S. freedom of navigation operations in the Gulf, United States Navy aircraft engaged Libyan aircraft in self-defense in accordance with Article 51 of the UN Charter. The Convention does not in any manner whatsoever restrict, condition or infringe upon our inherent right of self-defense as reflected in Article 51 of the UN Charter. Nor does it affect our rights under the law of armed conflict. The Law of the Sea Convention does not constrain or limit the President's options to defend our country; it enhances them by codifying navigation rights and freedoms that are essential for the global mobility of our armed forces and the sustainment of our combat troops.
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.
Will accession subject the U.S. military to the jurisdiction of international courts? Again, the answer is no. The Convention specifically permits nations to exempt from international dispute resolution, “disputes concerning military activities, including military activities by government vessels and aircraft.” State Parties individually determine what constitute “military activities.” Current and former leadership within the U.S. government have given repeated assurances that the United States would take full advantage of this clause in its accession documents to exempt U.S. military activities and protect them from the jurisdiction of international courts and tribunals. In fact, this is specifically outlined in this Committee’s Draft Resolution of Advice and Consent of 2007 and continues to be supported by the current Administration.
A final focus of opponents’ criticisms is the Convention’s dispute settlement provisions. While reasonable people can differ over whether third- party dispute settlement is, on balance, a “pro” or a “con,” I believe that these particular provisions are useful, well-tailored, and in no event a reason to jettison the Convention. The United States affirmatively sought dispute settlement procedures in the Convention to encourage compliance and to promote the resolution of disputes by peaceful means. We sought and achieved procedures that are flexible in terms of forum. For example, the Convention allows a Party to choose arbitral tribunals and does not require any disputes to go to the International Court of Justice. Its procedures are also flexible, allowing a Party to choose to exclude certain types of disputes, such as those concerning military activities. In this regard, some have questioned whether it is up to the United States – or a tribunal – to determine what constitutes a U.S. “military activity” under the Convention. We propose to include a declaration in the Senate’s resolution of advice and consent making clear that each Party has the exclusive right to determine what constitutes its “military activity.” And I can assure you that there is no legal scenario under which we would be bound by a tribunal decision at odds with a U.S. determination of military activities.
Myth: The Convention would permit an international tribunal to second-guess the U.S. Navy.
Reality: No international tribunal would have jurisdiction over the U.S. Navy. U.S. military activities, including those of the U.S. Navy, would not be subject to any form of dispute resolution. The Convention expressly permits a party to exclude from dispute settlement those disputes that concern “military activities.” The United States will have the exclusive right to determine what constitutes a military activity.
The military activities exception is of obvious importance to the activities of the U.S. Armed Forces. As a result, we have examined this issue thoroughly to make certain that a tribunal cannot question whether U.S. activities are indeed “military” for purposes of that exception. Allow me to offer an example to illustrate the Administration’s concern. It is possible to imagine a scenario wherein another State Party calls upon a tribunal to decide whether or not our military surveys in that country’s EEZ or reconnaissance aircraft flying in the airspace above that country’s EEZ—both of which are military activities of paramount importance—are consistent with the Convention.
In this scenario, if a tribunal were permitted to interfere with such military activities, this would have a major impact on our military operations and U.S. national security.
In this light, the Administration closely examined the Convention, its negotiating history, and the practices of the tribunals constituted under the Convention. Based on this examination, the Administration believes that it is clear that whether an activity is “military” is for each State Party to determine for itself. Indeed, having the ability to determine what is a “military activity” involves vital national security interests that are critical to our ability to defend the Nation, protect our forces overseas, safeguard our interests abroad, and assist our friends and allies in times of need.
The Administration thus recommends that the United States submit a declaration electing to exclude all three of these categories of disputes from binding dispute settlement. With respect to the particular category of disputes concerning military activities, the Administration further recommends that the U.S. declaration make clear that its consent to accession to the Convention is conditioned upon the 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. We will provide the Committee with language on this point.