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.
- Risks of national security damage due to a adverse dispute settlement ruling are under appreciated
- Interpretation of "military activities" clause left up to external courts and possibly unfriendly panel
- US has always resolved maritime disputes with voluntary, bilateral diplomacy -- accession to UNCLOS would compel legally binding dispute resolution
- Should recognize that U.S. will be bigger target for ITLOS because of its status as the sole global naval superpower
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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.
- Dispute settlement provisions in UNCLOS contribute to advancement of maritime law and are in best interest of US
- Dispute settlement provisions in UNCLOS were advocated by US originally because they are still best way to further rule of law
- US was leading advocate of system of third party arbitration within UNCLOS because it viewed this as essential to consistent application of the law
- U.S. would not be constrained by foreign tribunal and could choose other methods of dispute resolution
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