Language in implementing advice and consent resolution limits self executability of UNCLOS tribunal decisions
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One particularly noteworthy issue is how the Advice and Consent Resolution treats the domestic enforceability of the Seabed Dispute Chamber's rulings. The text of the Convention explicitly provides for the domestic enforceability of Chamber decisions. According to Article 39 of Annex VI of the Convention, "decisions ofthe Chamber shall be enforceable in the territories of the States Parties in the same manner as judgments or orders of the highest court of the State Party in whose territory the enforcement is sought." Justice Stevens, who concurred with the majority in Medellin, cited Article 39 as an example of a treaty text that "necessarily incorporates international judgments into domestic law."85 Yet Article 39 is non-self-executing under the Senate's Advice and Consent Resolution, a position that is reinforced by another Resolution provision directed specifically at the decisions of this Chamber. This latter provision also calls for implementing legislation:
The United States declares, pursuant to [A]rticle 39 of Annex VI, that decisions of the Seabed Disputes Chamber shall be enforceable in the territory of the United States only in accordance with procedures established by implementing legislation and that such decisions shall be subject to such legal and factual review as is constitutionally required 86 and without precedential effect in any court of the United States.
Were an effort made to enforce a decision of the Seabed Disputes Chamber in U.S. court prior to implementing legislation, would the "clear" text of Article 39, which Justice Stevens believed points to its self-executing status, prevail? Or would a court defer to the Advice and Consent Resolution's call for implementing legislation? What obstacles might be posed by the "constitutionally required" reviews of Chamber decisions, to which the Resolution refers? U.S. courts regularly enforce the decisions of commercial arbitral tribunals, but in theory any international tribunal proceeding might lead to a result that presented constitutional due process problems and that hence could not be enforced in U.S. court.87 Those who dislike the prospect of domestic enforcement of Convention provisions also may, in light of Medellin, seek to add language to the Advice and Consent Resolution specifying that Chamber decisions do not create U.S. private rights or private causes of action. Thus, even if the "clear" language of the Convention text were to lead a court to conclude that Article 39 of Annex VI of the Convention was self-executing, such additional language in the Resolution might present another bar to the enforcement of chamber decisions in U.S. courts.
"The United States and the Law of the Sea Convention: U.S. Views on the Settlement of International Law Disputes in International Tribunals and U.S. Courts
." The Publicist
. Vol. 1. (2009): 27-52. [ More (9 quotes) ]