Dispute resolution mechanisms in UNCLOS not unique to the convention
The United States is already a party to more than 85 agreements (most of them multilateral in nature) that provide for the resolution of disputes by the International Court of Justice. It has also already accepted the dispute resolution mechanisms in UNCLOS by ratifying the 1995 Fish Stocks Agreement and the 2000 Convention on Central and Western Pacific Fisheries, both of which incorporate by reference the dispute settlement provisions of the Convention.
MYTH: Dispute resolution mechanisms of the convention are binding on the United States.
This assertion is undeniable. The United States will, by declaration as detailed in the draft Senate Resolution of Advice and Consent, choose arbitration or special arbitration as the method applicable for most categories of disputes. That is consistent with many other international agreements, including the 1995 Agreement for the Implementation of Provisions of the Law of the Sea for the Conservation of Fish Stocks, which the United States joined in 1996. The use of such mechanisms is not considered a surrender of sovereignty by the majority. Some disputes specific to the resources of the seabed beyond national jurisdiction will be subject to resolution in the Seabed Disputes Chamber of the International Tribunal on the Law of the Sea. The jurisdiction of this chamber, by definition, falls outside areas of sovereign control. Finally, by declaration as detailed in the draft Senate Resolution of Advice and Consent, the United States will not accept any mandatory resolution mechanism for disputes concerning military activities, including military activities by government vessels and aircraft engaged in noncommercial service. The sovereign immunity of U.S. vessels and aircraft on government service will be protected by the convention.
Criticism of the Rome Statute stems from concerns that the United States would compromise sovereignty by allowing others to prosecute its citizens without its consent, and potentially denying them basic constitutional rights and other domestic law protections.81 Proponents of the ICC contend that U.S. arguments against ratification of the Rome Statute fail in the face of facts.82 These arguments can be extrapolated and applied to the far less controversial dispute resolution provisions of the Convention. Among the most compelling arguments against a cooperative dispute resolution mechanism are assertions that a foreign body would have jurisdiction over U.S. citizens. Under the widely accepted principles of universal jurisdiction and territoriality, the United States already relinquishes a great deal of power over the fate of its citizens on trial.83 Concerns of bias among the deciding party are also ill-founded. With respect to the International Criminal Court, there are a number of safeguards in place to guard against such fears.84 The dispute resolution provisions in the Convention do not provide for prosecutions of U.S. citizens, but largely govern disputes over economic matters.85 While there are costs as- sociated with agreeing to a dispute resolution mechanism that is not an American court, those costs are neither new nor absolute.86 Furthermore, the underlying concern with the ICC, fear of prosecution of servicemen and women,87 is not relevant in this context. In fact, the U.S. Navy and other military members support ratifi- cation of the Convention.88 Finally, as discussed earlier, the dispute resolution provisions of the Convention contain an explicit carve-out for issues that infringe upon national sovereignty, among others.89 Under those circumstances, parties to the Convention are not required to utilize any of the mechanisms enumerated, and can instead rely upon a non-binding option, thus softening the delegation aspect associated with dispute resolution.90
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
The United States is not today unalterably opposed to the dispute settlement provisions of the Convention. Indeed, it has already accepted them, since it has ratified the 1995 Fish Stocks Agreement and the 2000 Convention on Central and Western Pacific Fisheries, both of which incorporate by reference the dispute settlement provisions of the Convention.59 However, the Convention as a whole envisions roles for institutions and sets out rules potentially affecting a wide range of subject matters. The Resolution of Advice and Consent - especially its declarations and understandings relating to military activities - reflects an attitude of caution about U.S. participation in the Convention's third-party dispute settlement procedures. The Resolution appears to reflect some of the concerns of the unilateralists/anti-institutionalists.
According to the Department of State, the United States is already a party to more than 85 agreements (most of them multilateral in nature) that provide for the resolution of disputes by the International Court of Justice. More than 200 treaties – including civil air transport agreements and various types of investment treaties – provide for mandatory arbitration at the request of a party. In addition, there are a number of international organizations that include dispute resolution mechanisms, including the U.S.- Iran Claims Tribunal, and the International Civil Aviation Organization. The acceptance of arbitration in the Law of the Sea Convention is hardly a departure for the United States. Moreover, unlike most such dispute settlement provisions, the Law of the Sea Convention specifically permits the United States to not accept submission of disputes concerning military activities. This provision was insisted on by the United States in the negotiations leading to the Convention and was supported by navies a ll over the world.