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.
Refusing to fully embrace the third-party dispute settlement mechanisms of the Convention has its costs. As noted above, Article 298(3) of the Convention would prohibit the United States from judicially challenging other states' "military activities," if the United States declares itself exempt from third-party proceedings involving military activities. The same is true of other matters falling within the scope of Article 298, including the Article 298(1)(b) optional exception for enforcement activities concerning EEZ fisheries and marine scientific research. The United States supports unimpeded marine scientific research and has a distant-water fishing industry. Under the Advice and Consent Resolution, however, the United States could not invoke the Convention's provisions on compulsory procedures entailing binding decisions to protect U.S. actors who engage in those activities from interference by other coastal states.1 0 1 The record of tribunals operating under the Convention should help to assure the United States that those tribunals can help to reinforce Convention norms, to the benefit of the United States. For example, the International Tribunal for the Law of the Sea has, in cautious fashion, reinforced the text of and the basic compromises embodied in the Convention.
U.S. concerns about third-party dispute settlement were rarely voiced when the Convention was being negotiated. Indeed, the United States strongly supported third-party dispute settlement at the Third United Nations Conference on the Law of the Sea (UNCLOS III), the forum at which the Convention was negotiated during 1973-1982. U.S. negotiators regarded the dispute settlement provisions as important to achieving consensus at the negotiations and contributing to stability and predictability with respect to law of the sea disputes. According to Professor Louis B. Sohn, writing a third of a century ago during UNCLOS III, a
principal concern of the United States in the law of the sea negotiations is to provide procedures leading to a binding settlement of law of the sea disputes. Without such procedures it might be difficult to reach the final compromise needed to arrive at an overall solution of the issues before the Conference. The value of such a compromise would be greatly diminished if the parties to the treaty retained the right of unilateral interpretation, without any chance for an impartial adjudication. The purpose of the law of the sea negotiations is to achieve stability, certainty, and predictability, thus removing, or at least diminishing, the conflicts over law of the sea issues which otherwise might threaten the peace of the world. Only an effective method of dispute settlement can remove this danger.
Statements of U.S. officials and U.S. proposals at UNCLOS III emphasized the need for a comprehensive dispute settlement system that would apply with minimal exceptions to all parties and to all parts of the Convention.21 The binding third-party dispute settlement provisions should yield uniform interpretations of the Convention, with the United States favoring recourse to a permanent law of the sea tribunal to further that goal.22 Another U.S. objective was "to broaden the access to dispute settlement methods," opening some procedures to individuals and international organizations.23 The United States was one of the leading proponents of a comprehensive, binding third-party dispute settlement system at UNCLOS III that would lead to uniform interpretation and application of the Convention.
Several more forceful responses to the critics of the Convention's obligatory dispute settlement provisions are in order. First, the U.S. has already accepted the Convention's dispute settlement system with respect to certain significant categories of disputes (by ratifying the 1995 Fish Stocks Agreement, which incorporates the Convention's dispute settlement provisions).54 Second, one can make a strong case that third-party dispute settlement has led to decisions that strengthen the Convention's rules and will lead to many more. For example, in its merits decision in the Saiga case, the ITLOS reinforced the concept of the EEZ as a zone of limited coastal state jurisdiction, which extends neither to customs matters nor generally to all matters affecting a coastal state's "public interest."55 Third, the U.S. itself might find the Convention's dispute settlement system useful. For instance, arbitration could be threatened or pursued in order to oppose and publicly expose other states' illegal straight baseline claims.56 The Convention's dispute settlement provisions can help prevent the compromises embodied in the Convention from unraveling.
The United States has considerable power to determine how accession to Convention would affect its national interests. This is primarily a function of the many years of negotiations getting the treaty to its 1994 form. More recent specific guidance provided by the U.S. Senate Foreign Relations Committee on conditions for U.S. accession to the treaty are laid out in a lengthy resolution identifying very specific declarations, understandings, and conditions that ensure protection of U.S. interests.10 The conditions address a wide array of issues including representation on treaty decision-making bodies, ability to enforce U.S. environmental law, and rights to free navigation, as well as harmonization of the treaty with specific aspects of U.S. law. A particular concern to many in the United States is the specter of foreign courts making decisions about navigation and resource protection activities that ultimately affect U.S. interests. This concern could be said to be overstated for three reasons. First, accession to the Convention will allow the U.S. to have a say in the election of members of the Tribunal and to select members of arbitration panels making decisions. Second, and more important, is the fact that the U.S., as part of its accession (or any time thereafter), has the legal right to request the type of body it wants decisions concerning U.S. interests to be made by. The choices the United States would have include:
- A hearing before the International Tribunal for the Law of the Sea (ITLOS), a standing tribunal of 21 judges, each from a different nation, that serve nine year terms. The earliest the U.S. could get a seated judge would be in late 2008, when seven seats open.
- A hearing before the International Court of Justice (ICJ), a UN court of 15 judges appointed by the General Assembly and Security Council. The U.S. currently has one sitting judge.
- A special arbitral tribunal under “Annex VIII” made up of environmental, marine science, navigation and fisheries experts of which the U.S. would pick two of the five arbitrators.
- A hearing before an “Annex VII” arbitration panel composed of five members of which the U.S. would be allowed to choose one and be involved in the appointment of at least three others.
The U.S. has already indicated its decision to adjudicate conflicts under the last two options, using the third option for fisheries, environmental and navigational disputes, and the fourth option for other disputes, meaning that all decisions concerning U.S. interests would go to a small arbitral body whose members are selected with U.S. input. Finally, nations may opt out of any of the above adjudication procedures when the issue debated concerns such issues as scientific research, boundary disputes, military activities and setting of limits in natural resource extraction within a nation’s EEZ.
MOORE: First, this is one of the few treaties that we've negotiated in which we specifically put in an exemption for all military activities with respect to submission to dispute settlement. You and I indeed are on record together as sending a letter to the Senate Foreign Relations Committee basically indicating that all military activities have been withdrawn from dispute settlement. And if that were not enough, the Senate resolution of advice and consent that's proposed basically indicates that any determination of whether that is true or not is in fact left to the United States to determine. Let me also suggest that we're never, in the real world, going always to be able to control every arbitrator. There are going to be bad arbitrations. Unfortunately, all the judges are not Judge Steve Schwable (ph). And there are others that don't understand international law. But in the aggregate, I believe it is strongly in the interest of the United States to continue to support compulsory dispute settlement. There's nothing un-American about this. Indeed, George Washington indicated that the single most important achievement of his administration was the arbitration provisions contained in the Jay Treaty. In addition to that, the United States, at present, is a party to some 85 treaties with arbitration provisions, some of which are extremely important, and some 16 multilateral conventions that submit to a variety of different kinds of tribunals. So this is certainly nothing new. I think the simple answer is, one, for the tribunals that we're involved in, we will have the ability to select some of those judges, of course, in the way they're selected -- two out of the five in the general arbitration -- so we don't know what those other parties may have accepted. The arbitration only binding on them, not on other parties. So we're the ones that participate when we enter into arbitration in selecting the judges. A military exclusion would be applicable, so that's not an issue whatsoever in the case. And finally, if they clearly did something that is ultra vires, as I would regard this as ultra vires, it clearly is simply not binding on the United States under normal rules of international law. That decisions that go beyond the jurisdiction of the tribunal are simply void.
[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 elect two forms of arbitration rather than the Tribunal.
- The United States would be subject to the Sea-bed Disputes Chamber, should deep seabed mining take place under the regime established by the Convention. The proposed Resolution of Advice and Consent, however, 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.”
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.
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
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.
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