Dispute resolution mechanisms in UNCLOS do not threaten U.S. military action
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.
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.
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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.
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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.