Dispute resolution mechanism in UNCLOS no worse than already accepted principle of universal jurisdiction
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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
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.