The International Tribunal for the Law of the Sea (ITLOS) dealt a blow to the Russian Federation on November 22nd, when it ordered Moscow to release the Arctic Sunrise and the remainder of the Greenpeace protestors who were on the vessel when Russia seized it on September 19, 2013. Shortly after the tribunal’s decision was announced, however, the Voice of Russia reported that the Russian government does not intend to comply with the order.[ More ]
Russia has said it will not comply with the ruling of a United Nations-backed court that ordered it to release a Greenpeace ship it seized in September with all crew, a Kremlin official said on Saturday. “We won’t [react]. We have no plans to participate in this process,” Sergei Ivanov, who heads the Kremlin administration said.[ More ]
With Sen. John Kerry tapped to be the next secretary of state, continuity is likely for most policies. This includes pressing for ratification of the Law of the Sea Treaty (LOST). It’s a bad idea, as the International Tribunal on the Law of the Sea has helpfully reminded Americans.[ More ]
When a nation joins the United Nations Convention on the Law of the Sea (UNCLOS) it should be prepared to have its domestic court rulings overturned by an international tribunal. That hard lesson was recently learned by Ghana.[ More ]
UNCLOS seems to provide protection against these concerns by stipulating that states may opt out of its compulsory arbitration requirements when disputes concern “military activities...by government vessels and aircraft engaged in non-commercial service.”6 At its narrowest reading, this provision might mean only that ITLOS will avoid intervening in full-scale confrontations between opposing battle fleets—a situation that would create problems far beyond those of dispute resolution. At its broadest, this exemption might mean that any seizure could be excluded from ITLOS review, since seizures are never effectuated by unarmed commercial vessels, which would entirely negate the provision bestowing mandatory jurisdiction on ITLOS for seizures at sea. So which is it?
The only thing certain is that it will be up to ITLOS to decide how far it wants to intrude into U.S. naval strategy. The State Department has proposed ratification with an “understanding” that the military exemption will be read broadly. (Sec. 2, Par. 2 of ‘Text of Resolution of Advice and Consent to Ratification,” printed with Treaty Doc. 103-39 in Hearings on the UN Convention on the Law of the Sea, Ot. 21, 2003, along with “Statement of William H.Taft, Legal Adviser to the Department of State) But UNCLOS itself stipulates that states may not attach “reservations” to their ratification.7 Again, it will be up to ITLOS to decide what significance, if any, should be accorded such unilateral U.S. “understandings.” And the court’s composition is not encouraging. As of September 2005, a clear majority of the court’s 21 judges were from states that cannot be supposed to be friendly to American naval action—including Russia, China, Brazil, Cameroon, Ghana, Senegal, Cape Verde, Tunisia, Lebanon, Grenada, and Trinidad.
Acceding to UNCLOS would expose the U.S. to lawsuits on virtually any maritime activity, such as alleged pollution of the marine environment from a land-based source or through the atmosphere. Regardless of the merits, the U.S. would be forced to defend itself against every such lawsuit at great expense to U.S. taxpayers. Any judgment rendered by an UNCLOS tribunal would be final, could not be appealed, and would be enforceable in U.S. territory.
Unlike a resolution passed by the U.N. General Assembly or a recommendation made by a human rights treaty committee, judgments issued by UNCLOS tribunals are legally enforceable upon members of the convention. Article 296 of the convention, titled “Finality and binding force of decisions,” states, “Any decision rendered by a court or tribunal having jurisdiction under this section shall be final and shall be complied with by all the parties to the dispute.”
The role of the Law of the Sea Tribunal is to resolve disputes over the Convention. The Convention mandates that the Tribunal resolve all disputes, except those involving military activities. Opponents of the Convention argue that the tribunal could dispute U.S. designations of certain activities as military, forcing the U.S. to limit military operations. Some even claim American “citizens could be dragged before politically motivated foreign jurists.”18
Professor John Norton Moore, the leading U.S. expert on the law of the sea, told the Senate Foreign Relations Committee that the chances of the Tribunal undermining U.S. military operations was comparable to that of a meteorite striking the capitol building.19 Still, administration officials have taken precautions. Upon joining the Convention, the United States would submit a declaration stipulating that it is acceding on the condition that states themselves have the authority to decide whether activities are military.20 Opponents think that even this precaution leaves a chance of the Tribunal harassing the U.S. military.
As a party to the Convention, however, the United States can nominate the judges to sit on the tribunal, rendering this wildly remote possibility even more unlikely. If the United States does not ratify the Convention, it has no control over the decisions the Tribunal reaches. The Tribunal will never have power over the U.S. military, but its decisions will form precedents that will help resolve future maritime disputes. Those precedents would affect U.S. interests.
While the ITLOS decision may indeed be cheered in naval circles for its ringing affirmation of the sovereign immunity of warships (possibly also for military aircraft, although they are not defined in the LOS Convention, nor is their sovereign immunity addressed), it also serves as a reminder of the awkward position of the U.S. as a non-party to the LOS Convention (the Convention has been pending before the senate since 1994, but the senate has yet to give its advice and consent to accession). Accordingly, should a similar incident occur involving a U.S. Navy or Coast Guard warship, the U.S. would not be able to apply to the ITLOS for the vessel’s release. Should the U.S. become a party to the LOS Convention, it should also take note of the fact that Argentina shrewdly amended its article 298 declaration on October 26th (four days before instituting its first legal action under Annex VII of the LOS Convention) to remove its early rejection of the LOS Convention’s compulsory dispute settlement procedures with respect to “military activities by government vessels and aircraft engaged in noncommercial service.” (¶ 34). In presenting the Convention to the senate in 1994, the Clinton administration recommended that the U.S. exempt military activities from the Convention’s compulsory dispute settlement procedures. Proposed declarations by the Senate Foreign Relations Committee in 2004 and 2007 adopted that position. This case demonstrates at least one potential drawback to such exemptions.
Judicial and arbitral bodies: Interpretations rendered by judicial and arbitral tribunals established under the Convention will also influence the perceptions and behavior of lawyers and governments around the world and the future understanding of the law. While the actual judgment may be binding only on the parties to a case, the effect of a judicial or arbitral decision on perceptions of the law is not limited to parties to a case or even to parties to the Convention. By joining the Convention the United States would have the right to nominate and participate in the election of judges to the International Tribunal for the Law of the Sea (ITLOS) that sits in Hamburg, as well the right to add names to the lists from which arbitrators are selected under the Convention. Moreover, by joining the Convention, the United States would enhance the likelihood that judges and arbitrators would pay serious attention to its views regarding the interpretation and application of the Convention, even in cases where the United States is not a party to the dispute and has not exercised its right to intervene under the Convention.
Thus, even though the United States opts for arbitration under the Convention rather than accepting the jurisdiction of ITLOS, by joining the Convention our influence will extend well beyond any arbitration to which we may be a party. Moreover, we gain the right to seek urgent temporary provisional measures from ITLOS pending the constitution of an arbitral tribunal. As the Senate recognized when it approved the existing Implementing Agreement regarding fisheries to which we are already party, this enhances our leverage over foreign fishing on the high seas adjacent to our exclusive economic zone. Becoming party to the Convention extends that leverage to fishing vessels flying the flag of any country that is party to the Law of the Sea Convention.
The Treaty’s ineffectiveness was exemplified by events in the South China Sea in September 2012. China deployed six surveillance ships in response to the Japanese government’s attempt to buy the disputed Senkaku islands (which the Chinese call the Daioyus) from their current owner, a wealthy Japanese family.20 Both countries are signatories to LOST, which was supposed to settle disputes over maritime boundaries by creating the International Tribunal for the Law of the Sea.
The Tribunal has so far largely failed to settle such disputes. The Senkaku/Daioyus dispute is not the first case brought before the Tribunal, whose approach seems to be to let countries talk among themselves until they reach a solution. The court established to settle disputes has repeatedly abdicated its responsibility, while continuing to claim jurisdiction. Frustration with this process has led at least one party to return to gunboat diplomacy. Despite filing a lawsuit with the Tribunal, China appears to be dissatisfied with a legalistic approach. China Ministry of Foreign Affairs Spokesperson Hong Lei stated, “Isn’t it a weird thing in international affairs to submit a sovereign country’s territory to international arbitration? What a chaos the world will be in if this happens?”21
Virtually all the cases thus far have involved impounding fishing vessels, but the Tribunal has not actually finally settled any serious international dispute; thus, regardless of the merits of the case, China’s frustration is not surprising. Where it has acted, the Tribunal has essentially told the parties to sort the issues out amongst themselves — as in the Southern Bluefin Tuna case examined below.