On balance, multiple reasons to believe that U.S. exposure to dispute settlement provisions under UNCLOS would be more to its benefit than detriment

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.