Dispute resolution mechanisms in UNCLOS threaten U.S. national security
Mandatory dispute resolution mechanism could be used by states unsympathetic to the U.S. to curtail its military operations even though such operations are supposed to be exempt from the mechanism. This is because it is unclear by the terms of the treaty what activities will be defined as military.
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Problem #4: Unnecessary Risks to National Security. Proponents of the Convention argue that it promotes U.S. security by codifying a variety of rights to navigate the world’s oceans that are valued by the Navy. While the Navy, quite appropriately, seeks the codification of these rights, it should be pointed out that a significant portion of these rights are already established by a series of four 1958 “Geneva Conventions on the Law of the Sea” and customary international practice.
On the other hand, the risks to national security posed by the Convention are often understated. For example, Deputy Assistant Secretary of Defense for Negotiations Policy Mark T. Esper, who testified in favor of the Convention, told the Senate Foreign Relations Committee in an October 21, 2003, hearing that the mandatory dispute resolution mechanism could be used by states unsympathetic to the U.S. to curtail its military operations even though such operations are supposed to be exempt from the mechanism. This is because it is unclear by the terms of the treaty what activities will be defined as military. While the Bush Administration believes that it will be up to each State Party to determine for itself what activities are military, it is uncertain enough about the issue that it is recommending the U.S. submit a declaration reserving its right to determine which activities are military. Unfortunately, it is not at all certain that a declaration will suffice to protect vital U.S. national security interests. Other states may choose to accept or ignore the declaration, or a future administration may accept the jurisdiction of a tribunal and be surprised if precedent-setting decisions go against U.S. interests. While in the future the Navy may recommend that the U.S. reject a claim of jurisdiction for a tribunal, civilian authorities both inside and outside the Department of Defense may overrule the Navy. Amending the text of the treaty may be the only certain way to protect U.S. interests against overreaching by other states regarding the mandatory dispute resolution mechanism. This is my view, in part, because I am not aware of a precedent for such a mandatory dispute settlement mechanism that could extend to such sensitive areas.
The Law of the Sea Treaty’s compulsory dispute resolution requirements and procedures are particularly problematic when taken together with a number of obligations the accord entails that are at odds with our military practices and national interests. These include commitments that:
- Reserve the oceans exclusively for “peaceful purposes” (Article 88): The United States routinely uses the world’s oceans for military purposes, including waging war against our enemies.
- Require states to refrain from “the threat or use of force against the territorial integrity or political independence of any state” (Article 301): As the world’s preeminent maritime nation, America must project power from the sea and does so with some regularity. Some would describe such power projection as contrary to “the territorial integrity or political independence” of states (most recently, for example, attacks from naval forces against the Taliban’s Afghanistan and Saddam Hussein’s Iraq).
- Proscribe the use of territorial waters to collect intelligence and conduct other operations (Article 19): For many decades, intelligence vital for American security has been collected on, below and above the oceans – including, in some cases, those considered to be “territorial waters.”
- Oblige submarines to travel on the surface and show their flags in territorial waters (Article 20). The effectiveness and perhaps the very survival of our submarines would be compromised were they to have to operate on the surface in close-in waters where they can only go with the greatest of stealth.
- Bar any maritime research except that conducted for peaceful purposes and require the coastal state’s permission for that performed in territorial waters (Article 240). Classified oceans research, including some conducted covertly, is indispensable to the U.S. Navy’s mission.
In statements in support of LOST, the United States military makes clear that it has no intention of ending such activities, and insists that it will not have to do so since “military activities” are exempted from the Treaty’s dispute resolution mechanisms. Unfortunately, this position both defies common sense and hard experience with international accords: These articles are wholly without effect if they do not apply to the military and it is predictable that America’s foes will use every opportunity afforded by LOST to ensure they do.
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UNCLOS seems to provide protection against these concerns by stipulating that states may opt out of its compulsory arbitration requirements when disputes concern “military activities...by government vessels and aircraft engaged in non-commercial service.”6 At its narrowest reading, this provision might mean only that ITLOS will avoid intervening in full-scale confrontations between opposing battle fleets—a situation that would create problems far beyond those of dispute resolution. At its broadest, this exemption might mean that any seizure could be excluded from ITLOS review, since seizures are never effectuated by unarmed commercial vessels, which would entirely negate the provision bestowing mandatory jurisdiction on ITLOS for seizures at sea. So which is it?
The only thing certain is that it will be up to ITLOS to decide how far it wants to intrude into U.S. naval strategy. The State Department has proposed ratification with an “understanding” that the military exemption will be read broadly. (Sec. 2, Par. 2 of ‘Text of Resolution of Advice and Consent to Ratification,” printed with Treaty Doc. 103-39 in Hearings on the UN Convention on the Law of the Sea, Ot. 21, 2003, along with “Statement of William H.Taft, Legal Adviser to the Department of State) But UNCLOS itself stipulates that states may not attach “reservations” to their ratification.7 Again, it will be up to ITLOS to decide what significance, if any, should be accorded such unilateral U.S. “understandings.” And the court’s composition is not encouraging. As of September 2005, a clear majority of the court’s 21 judges were from states that cannot be supposed to be friendly to American naval action—including Russia, China, Brazil, Cameroon, Ghana, Senegal, Cape Verde, Tunisia, Lebanon, Grenada, and Trinidad.
Advocates think it is worthwhile to hope for such results, because, they say, the treaty offers such important protections of naval transit rights. But the United States has, for over a quarter century, embraced the standards in the treaty as a guide to accepted international practice. By ratifying the treaty and committing ourselves to participate in dispute-settling mechanisms, we adopt not our own understandings but those which international authorities may choose to put on them. And it's not as if the standards set out in the treaty are so clear that they couldn't be twisted in dangerous ways by unsympathetic interpretations.
So the treaty can be acceptable if interpreted as we want it to be interpreted. But if we commit to the treaty, we are, by its terms, leaving ultimate interpretations to be determined by international tribunals, which may not agree with our interpretations. The treaty stipulates that decisions of international arbitration must be treated as "final" and "binding."
Putting aside lawyerly questions about the meaning of "finality," if we ratify the treaty, we will, as a practical matter, find it very awkward (to say the least) to reject the interpretations that emerge from international arbitration of its disputed points. In 1985, the United States disputed the jurisdiction of the International Court of Justice to hear Nicaragua's complaint against U.S. support for the "contra" insurgency there. When the ICJ rejected U.S. objections to its jurisdiction, the Reagan administration withdrew from the proceedings and insisted the United States would not be bound by the subsequent judgments against it (when, as expected, the Court did rule against the U.S. intervention).
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The United States and other nations are free to resolve their maritime disputes in a number of ways outside of UNCLOS, including bilateral negotiations, fact-finding and conciliation commissions, and proceedings at the Permanent Court of Arbitration, to name a few.8 The United States may also submit a dispute by special agreement to the International Court of Justice, as it did in 1981 to resolve a dispute with Canada over maritime boundaries in the Gulf of Maine.
Bilateral negotiations, special agreements, arbitration, and conciliation commissions have in com- mon the fact that they are voluntary means of resolving maritime disputes. The United States may choose to engage in such voluntary pro- ceedings depending on whether the predicted outcome would advance its national interests. However, if the U.S. accedes to UNCLOS, it will be compelled to submit itself to legally binding dispute resolution whenever another member state brings a lawsuit against it.
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In the past, international courts have not hesitated to pronounce adverse judgments against the United States that have negatively affected its national interests, including judgments on critical matters such as the use of military force, as in the Paramilitary Activities case, and on controversial legal and social issues such as the death penalty, as in the Avena case. UNCLOS tribunals have already indicated that they will engage in hotly contested interna- tional environmental disputes, as demonstrated by the MOX Plant case.
An adverse judgment against the United States in a climate change lawsuit would be domestically enforceable and would undoubtedly harm the U.S. economy. The regime formulated by the arbitral tribunal in the Trail Smelter case, if extrapolated to its logical extent and applied to U.S. industries that produce green- house gases, would impose massive regulatory burdens on U.S. compa- nies, and the costs would be passed on to American consumers. Such a judgment would accomplish through international litigation what climate change alarmists could not achieve through treaty negotiations or in the U.S. Congress.
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Acceding to UNCLOS would expose the U.S. to lawsuits on virtually any maritime activity, such as alleged pollution of the marine environment from a land-based source or even through the atmosphere. Regardless of the case’s merits, the U.S. would be forced to defend itself against every such lawsuit at great expense to U.S. taxpayers. Any judgment rendered by an UNCLOS tribunal would be final, could not be appealed, and would be enforceable in U.S. territory.
Unlike a resolution passed by the U.N. General Assembly or a recommendation made by a human rights treaty committee, judgments issued by UNCLOS dispute resolution tribunals are legally enforceable upon members of the convention. Article 296 of the convention, titled “Finality and binding force of decisions,” states, “Any decision rendered by a court or tribunal having jurisdiction under this section shall be final and shall be complied with by all the parties to the dispute.”25
Judgments made by UNCLOS tribunals are enforceable in the same manner that a judgment from a U.S. domestic court would be. For example, Article 39 of Annex VI states that “The decisions of the [Seabed Disputes] Chamber shall be enforce- able in the territories of the States Parties in the same manner as judg- ments or orders of the highest court of the State Party in whose territory the enforcement is sought.”26 In other words, if the United States accedes to the convention, the U.S. government will be required to enforce and comply with SDC judgments in the same manner as it would enforce and comply with a judgment of the U.S. Supreme Court. The U.S. court sys- tem will serve not as an avenue for appeal from UNCLOS tribunals, but rather as an enforcement mechanism for their judgments.
Finally, opponents of the Law of the Sea Treaty contend that Article 88 of the treaty, which stipulates that "the high seas shall be reserved for peaceful purposes" together with Article 301's requirement to refrain from "any threat or use of force against the territorial integrity or political independence of any state" have the potential of unduly constraining U.S. defense operations on the high seas.22
Proponents counter that warships of all major powers freely travel through the high seas even though the treaty is already in force for nations that have ratified it,23 which, as of this writing, stood at 149 nations.24 But the U.S.'s circumstances are very different than those of the 149 parties to the treaty. As the world's only remaining superpower, the U.S. is the only nation capable of extended, extensive long-range maritime operations.25 What's more, the U.S. has military obligations that other nations simply do not. Many of the parties to the treaty26 don't have organized navies. Others don't have significant ones.27 Consequently, most parties to the treaty have less interest in the military implications of Article 88 than does the United States. The ratification of the treaty by these nations therefore should not be the yardstick by which the risks to U.S. military interests are measured.