ARGUMENT HISTORY

Revision of Dispute resolution mechanisms in UNCLOS do not threaten U.S. military action from Sat, 06/28/2014 - 14:26

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ARGUMENTS
Dispute resolution mechanisms in UNCLOS do not threaten U.S. military action

Some opponents of UNCLOS have argued that by ratifying UNCLOS, U.S. military forces could be subject to adverse ruling by international tribunals through the dispute resolution mechanisms of the treaty. However, the U.S. defense department has reviewed the relevant law and has found no undue liability risk to U.S. forces. Furthermore, in the Senate's Advice and Consent resolution that would ratify UNCLOS, the U.S. has taken advantage of article 298(1) in UNCLOS to exempt itself from all dispute settlement.

Keywords: 
Dispute Resolution

Quicktabs: Arguments

Thorough review of dispute resolution and military activities concern under Bush Administration concluded that it was unlikely to be a threat

In 2003, Mark Esper, the Deputy Assistant Secretary of Defense for Negotiations Policy, testifiedEsper, Mark T. "Statement of Mark T. Esper: On the U.N. Convention on the Law of the Sea (October 21, 2003) ." Testimony before the Senate Committee on Foreign Relations, October 21, 2003. [ More (3 quotes) ] that the Bush administration closely examined the LOS Convention, pored through the negotiating history of the Treaty, and reviewed the practices of international tribunals constituted under the Convention.43Esper, Mark T. "Statement of Mark T. Esper: On the U.N. Convention on the Law of the Sea (October 21, 2003) ." Testimony before the Senate Committee on Foreign Relations, October 21, 2003. [ More (3 quotes) ] Based on the thorough examination, the administration took the position that the scope of the military activity exemption is solely within the ambit of the authority of each state party to determine for itself. Retired U.S. Navy Admiral William Schachte concurred, stating: “. . . No country would subordinate its international security activities to an international tribunal. . . . Certain disputes about military activities are considered ... to be so sensitive that they are best resolved by diplomatic means.”44

[ Page 276 ]
Wilson, Brian and James Kraska. "American Security and Law of the Sea." Ocean Development & International Law. Vol. 40. (2009): 268-290. [ More (6 quotes) ]
Not remotely possible that tribunals could overrule U.S. on "military nature of activities"

Responding to a question posed by Senator Lugar at a 2003 SFRC hearing regarding whether a tribunal could trump a state’s decision regarding whether an activity was “military” in nature, John Norton Moore emphatically statedMoore, John Norton. "Statement of John Norton Moore: Senate Advice and Consent to the Law of the Sea Convention: Urgent Unfisinshed Business ." Testimony before the Senate Foreign Relations Committee, October 14, 2003. [ More (5 quotes) ]: “I believe the chances of this article being interpreted the way some are arguing and posing a risk to the United States is about like your deciding not to hold this hearing today because of the risk of the hearing room being hit by a meteorite. To be frank, Mr. Chairman, this is a silly objection. . . . ”45Moore, John Norton. "Statement of John Norton Moore: Senate Advice and Consent to the Law of the Sea Convention: Urgent Unfisinshed Business ." Testimony before the Senate Foreign Relations Committee, October 14, 2003. [ More (5 quotes) ] The objection by critics of the LOS Convention and the purported risk of an overreaching tribunal misses one of the most basic rules of jurisprudence. If a court or tribunal acts beyond its jurisdiction, competence, or authority, such an action would be ultra vires and any decision or judgment issued by that court or tribunal would not be legally binding. Finally, of note is that many other countries have asserted an exemption under Article 298 to include either military activities or matters before the UN Security Council, including, Argentina, Australia, Belarus, Canada, Cape Verde, Chile, China, Germany, Mexico, the Republic of Korea, the Russian Federation, Tunisia, Ukraine, and the United Kingdom.46 Consequently, there is broad international support for the military activities exemption.

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Wilson, Brian and James Kraska. "American Security and Law of the Sea." Ocean Development & International Law. Vol. 40. (2009): 268-290. [ More (6 quotes) ]
Concerns over international tribunal being used against US military forces fail to fully understand text of convention
Concerns have been raised that it is not in the best interests of the United States to have its maritime activities subject to the control of an international tribunal, like the International Tribunal for the Law of the Sea or the International Court of Justice (ICJ). That concern is clearly misplaced. While the Convention does establish a Tribunal, parties are free to choose other methods of dispute resolution. The United States has already indicated that if it becomes a party it will elect two forms of arbitration rather than the Tribunal or the ICJ. More importantly, this concern fails to recognize that no country would subordinate its national security activities to an international tribunal. This is a point that everyone understood during the negotiations of the Convention, and that is why Article 286 of the Convention makes clear that the application of the compulsory dispute resolution procedures of section 2 of Part XV are subject to the provisions of section 3 of Part XV, which includes a provision that allows for military exemptions, which would encompass military activities conducted pursuant to PSI. Some may try to argue that Article 288 allows a court or tribunal to make the final determination as to whether or not it has jurisdiction over a matter where there is a dispute between the parties as to the court’s jurisdiction. They argue that Article 288 could be read to authorize a court or tribunal to make a threshold jurisdictional determination of whether an activity is a military activity or not and, therefore, subject to the jurisdiction of the court or tribunal. However, Article 288 is also found in section 2 of Part XV and therefore does not apply to disputes involving what the U.S. Government has declared to be a military activity under section 3 of Part XV. I submit this interpretation is supported by the negotiating history of the Convention, which reflects that certain disputes, including military activities, are considered to be so sensitive that they are best resolved diplomatically, rather than judicially. This interpretation is also supported by a plain reading of the Convention.
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Schachte, William L. "Statement of Rear Admiral William L. Schachte: Accession to the 1982 Law of the Sea Convention and Ratification of the 1994 Agreement Amending Part XI of the Law of the Sea Convention ." Testimony before the Senate Armed Services Committee, April 8, 2004. [ More (4 quotes) ]
Careful analysis of treaty text shows how U.S. negotiators were able to eliminate the possibility that U.S. forces would be subject to international courts
Military officers serving as members on the United States delegation that negotiated the Convention ensured that it contained a military activities exemption from dispute resolution, which is ironclad. The Convention they helped craft permits a maritime nation, like the United States, to use compulsory dispute resolution as a sword against foreign coastal state encroachment while simultaneously shielding military activities from review. Given the central importance of this issue, it is important to review the compulsory dispute resolution procedures contained in Part XV, Section 2 of the Convention, and explain, in detail, how Article 298 of the Law of the Sea Convention, under its express terms, will permit the United States to completely exempt its military activities from dispute resolution, and prevent any opposing State or court or tribunal from reviewing our determination that an activity is an exempted military activity. Part XV, Section 2 of the Convention is titled, “Compulsory Procedures Entailing Binding Decisions.” Section 2 is comprised of eleven Articles (286 – 296), which contain the compulsory dispute resolution procedures that some are concerned could be used to effect a review of our military activities. Section 2 begins with Article 286, which provides that, except as provided in Section 3 of the Part XV, “any dispute concerning the interpretation or application of this Convention shall, where no settlement has been reached by recourse to Section 1, be submitted at the request of any party to the dispute to the court or tribunal having jurisdiction under this section.” Article 287 then provides the choice of procedure election. The President has asked the Senate to reject the first two choices available, the International Court of Justice and the International Tribunal for the Law of the Sea, and instead choose arbitration (what are referred to formally as arbitral tribunals). Now, let’s move on to Section 3, which is titled, “Section 3. Limitations and Exceptions to Applicability of Section 2.” In Section 3 we find Article 298; and in Article 298, subparagraph 1, it states in pertinent part:
1. When signing, ratifying, or acceding to this Convention or at any time thereafter, a State may...declare in writing that it does not accept any one or more of the procedures provided for in section 2 with respect to one or more of the following categories of disputes...”
There then follows three categories of disputes: Maritime boundary disputes, disputes involving military activities, and disputes involving matters before the United Nations Security Council. The president has asked the Senate to exempt all three categories. The key language from Article 298.1 is: “A State may declare that it ... does not accept any one or more of the procedures provided for in section 2.” It is the right of the State, and solely the State, to completely and preemptively reject all of the dispute resolution procedures provided for in Section 2. It is those very procedures that the opposing State or international court or tribunal would have to rely upon to try to assert authority over us. It simply does not get any better than that---not in private contract law nor in treaty law. What this Convention makes clear is that a State party can completely reject all the dispute resolution procedures—on its own terms—for disputes involving maritime boundaries, military activities, and matters before the Security Council. There is simply no process or procedure whereby our determination can be subject to review, because we have already preemptively rejected all the procedures provided for in Section 2, including article 287 (choice of forum), article 288 (the right of a court or tribunal to determine its own jurisdiction), article 290 (provisional measures) and article 292 (prompt release). All permanent members of the United Nations Security Council (except the United States) and numerous other countries have taken the military activities exemption. They, like us, would never accept a court or tribunal acting ultra vires---beyond the limits of the Convention itself.
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U.S. Navy Judge Advocate General's Corps. Eight National Security Myths: United Nations Convention on the Law of the Sea . Office of the Judge Advocate General: Washington Navy Yard, DC, Undated [ More (5 quotes) ]

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