Dispute resolution mechanisms in UNCLOS are not a reason to reject the treaty
The costs associated with the dispute resolution provisions in UNCLOS are similar to those the United States is already subject to under the principles of universal jurisdiction and territoriality and numerous other agreements the U.S. has already ratified. Furthermore, the Convention provides the United States with an escape from mandatory dispute resolution which the U.S. has already invoked in its signing statements to ensure that the U.S. military will not be threatened by UNCLOS tribunals.
Finally, dispute settlement under customary international law can run the gamut from diplomatic intervention to economic sanctions, to arbitration, to bringing an action before the International Court of Justice. Bottom line, it is ad hoc, at best. The Convention, on the other hand, contains an elaborate dispute settlement mechanism that promotes compliance with its provisions and ensures that ocean disputes will be settled in a peaceful manner. This mechanism is both flexible, in that Parties have options as to how and in what fora they will settle their disputes, and comprehensive, in that most of the Convention’s rules can be enforced through binding dispute resolution. At the same time, however, the dispute settlement mechanism accommodates matters of vital national concern by excluding certain sensitive categories of disputes, such as fisheries management in the EEZ, from binding dispute settlement. It also allows State Parties to exclude other disputes, such as controver- sies involving military activities, from the binding dispute settlement procedures.
As a State Party, the United States could enforce its rights and preserve its prerogatives through peaceful dispute settlement under the Convention, as well as en- courage compliance with the Convention by other State Parties.
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The United States would obtain the benefit of third party dispute settlement in dealing with non-military oceans interests. The United States was one of the principal proponents in the law of the sea negotiations for compulsory third party dispute settlement for resolution of conflicts other than those involving military activities. We supported such mechanisms both to assist in conflict resolution generally and because we understood that third party dispute resolution was a powerful mechanism to control illegal coastal state claims. Even the Soviet Union, which had traditionally opposed such third party dispute settlement, accepted that in the law of the sea context it was in their interest as a major maritime power to support such third party dispute settlement.17 International arbitration, which the President has recommended for the United States in this case, is about as American as apple pie. Indeed, George Washington took great pride in the initiative that led to the Jay Treaty and settlement through arbitration of disputes we had with the United Kingdom. This Convention, negotiated by the first Chief Justice of the United States and one of the principal draftsmen of the Federalist Papers, may well have avoided a second war with Britain at a time the new Nation could ill afford it. And, following the Civil War, the United States again led the world to arbitration in the Alabama Claims Arbitration that resulted in substantial net payments to the United States. Modern international arbitration owes its existence to these important American initiatives.18
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On the other hand, the United States can also find itself in the position of a defendant. That is the risk that comes with the benefit. The United States successfully endeavored to minimize that risk by supporting both mandatory and optional exceptions to the obligation to arbitrate or adjudicate disputes. Let me highlight a few:
First, the obligation applies only to disputes concerning the interpretation and application of the Law of the Sea Convention that have not been settled by other means.
Second, the obligation does not apply to disputes that are also subject to arbitration or adjudication under some other agreement.
Third, the obligation does not apply where there is an agreement between the parties to settle the dispute by some other means, and that agreement excludes any further procedure.
Fourth, only a very limited category of cases may be brought against coastal states with regard to their exercise of sovereign rights or jurisdiction. The most important of these, central to the objectives of the United States with respect to the Convention as a whole, involves alleged violation by the coastal state of the provisions of the Convention regarding rights and freedoms of navigation, overflight, submarine cables and pipelines, and related uses.
Fifth, a state may file a declaration excluding disputes concerning maritime boundaries between neighboring coastal states, concerning military activities, and concerning matters before the UN Security Council. A declaration excluding all such disputes is contained in the resolution of advice and consent contained in the Committee’s 2004 report.
The record of dispute settlement tribunals under the Law of the Sea Convention to date is certainly reassuring. Very few cases have been brought since 1994. All have been handled with considerable caution and prudence, especially in terms of the operative provisions of the judgments and awards.
My conclusion, therefore, is that the probable costs and risks are small, that the magnitude of the probable benefits is very high, and accordingly that America’s interests are best served becoming party to the Convention. To put it differently, the risks of damage to America’s long-term security, economic, and environmental interests by not becoming party to the Convention are far greater than the risks of becoming a party.
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The United States would obtain the benefit of third party dispute settlement in dealing with non-military oceans interests. The United States was one of the principal proponents in the law of the sea negotiations for compulsory third party dispute settlement for resolution of conflicts other than those involving military activities. We supported such mechanisms both to assist in conflict resolution generally and because we understood that third party dispute resolution was a powerful mechanism to control illegal coastal state claims. Even the Soviet Union, which had traditionally opposed such third party dispute settlement, accepted that in the law of the sea context it was in their interest as a major maritime power to support such third party dispute settlement.14
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There is no doubt that external dispute resolution infringes upon U.S. sovereignty and it is therefore not surprising that staunch advocates of sovereignty steadfastly oppose the Convention, in part due to its dispute resolution mechanisms. However, the costs associated with the Convention’s dispute resolution provision are similar to those the United States is already subject to under principles of universal jurisdiction and territoriality. Furthermore, the Convention provides the United States with an escape from mandatory dispute resolution. In light of this, arguments against ratification of the Convention based upon sovereignty rooted in the dispute resolution mechanisms are outweighed by the benefits the Convention offers to the United States.91
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The role of the Law of the Sea Tribunal is to resolve disputes over the Convention. The Convention mandates that the Tribunal resolve all disputes, except those involving military activities. Opponents of the Convention argue that the tribunal could dispute U.S. designations of certain activities as military, forcing the U.S. to limit military operations. Some even claim American “citizens could be dragged before politically motivated foreign jurists.”18
Professor John Norton Moore, the leading U.S. expert on the law of the sea, told the Senate Foreign Relations Committee that the chances of the Tribunal undermining U.S. military operations was comparable to that of a meteorite striking the capitol building.19 Still, administration officials have taken precautions. Upon joining the Convention, the United States would submit a declaration stipulating that it is acceding on the condition that states themselves have the authority to decide whether activities are military.20 Opponents think that even this precaution leaves a chance of the Tribunal harassing the U.S. military.
As a party to the Convention, however, the United States can nominate the judges to sit on the tribunal, rendering this wildly remote possibility even more unlikely. If the United States does not ratify the Convention, it has no control over the decisions the Tribunal reaches. The Tribunal will never have power over the U.S. military, but its decisions will form precedents that will help resolve future maritime disputes. Those precedents would affect U.S. interests.
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[MYTH] The Convention mandates another tribunal to adjudicate disputes.
- The Convention established the International Tribunal for the Law of the Sea. However, Parties are free to choose other methods of dispute settlement. The United States would choose two forms of arbitration rather than the Tribunal.
- The United States would be subject to the Sea-bed Disputes Chamber, should deep seabed mining ever take place under the regime established by the Convention. The proposed Resolution of Advice and Consent makes clear that the Sea-bed Disputes Chamber’s decisions “shall be enforceable in the territory of the United States only in accordance with procedures established by implementing legislation and that such procedures shall be subject to such legal and factual review as is constitutionally required and without precedential effect in any court of the United States.” The Chamber’s authority extends only to disputes involving the mining of minerals from the deep seabed; no other activities, including operations on the surface of the oceans, are subject to it.
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The presence of a clause providing binding arbitration should not be viewed as a limitation on U.S. sovereignty. The United States retains, as do all countries ratifying UNCLOS, the right to resolve conflicts through diplomatic means. The arbitration provision provides further means for countries to resolve disputes. In essence, it provides additional rights and capabilities to the states that would not normally exist. As such, it serves as an extended means of enforcing sovereignty when diplomatic solutions fail. Therefore, arbitration is not a limit on the sovereignty of states, but rather a guardian of state sovereignty.
While the ITLOS decision may indeed be cheered in naval circles for its ringing affirmation of the sovereign immunity of warships (possibly also for military aircraft, although they are not defined in the LOS Convention, nor is their sovereign immunity addressed), it also serves as a reminder of the awkward position of the U.S. as a non-party to the LOS Convention (the Convention has been pending before the senate since 1994, but the senate has yet to give its advice and consent to accession). Accordingly, should a similar incident occur involving a U.S. Navy or Coast Guard warship, the U.S. would not be able to apply to the ITLOS for the vessel’s release. Should the U.S. become a party to the LOS Convention, it should also take note of the fact that Argentina shrewdly amended its article 298 declaration on October 26th (four days before instituting its first legal action under Annex VII of the LOS Convention) to remove its early rejection of the LOS Convention’s compulsory dispute settlement procedures with respect to “military activities by government vessels and aircraft engaged in noncommercial service.” (¶ 34). In presenting the Convention to the senate in 1994, the Clinton administration recommended that the U.S. exempt military activities from the Convention’s compulsory dispute settlement procedures. Proposed declarations by the Senate Foreign Relations Committee in 2004 and 2007 adopted that position. This case demonstrates at least one potential drawback to such exemptions.
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We would do well to remember the original justifications for including the third-party dispute settlement provisions in the Convention. These justifications - which U.S. officials articulated and supported during UNCLOS III - include promoting certainty, predictability, and stability, with respect to rules that greatly benefit the United States.105 These dispute settlement provisions can help deter illegal behavior, as well as promote the peaceful settlement of disputes. Domestic enforcement of Convention provisions can also serve this end. At the most fundamental level, the Convention furthers the rule of law in the world - the values of using agreed-upon rules and procedures to resist unilateral assertions of jurisdiction or sovereign control, resolving differences even-handedly according to established rules, and providing stable expectations for international actors. Giving full effect to provisions for third-party dispute settlement at the international and national levels would help further these values.
"The United States and the Law of the Sea Convention: U.S. Views on the Settlement of International Law Disputes in International Tribunals and U.S. Courts
." The Publicist
. Vol. 1. (2009): 27-52. [ More (9 quotes) ]