Revision of Dispute resolution mechanisms in UNCLOS do not threaten U.S. military action from Tue, 02/08/2022 - 16:46
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.
Quicktabs: Arguments
Will accession subject the U.S. military to the jurisdiction of international courts? Again, the answer is no. The Convention specifically permits nations to exempt from international dispute resolution, “disputes concerning military activities, including military activities by government vessels and aircraft.” State Parties individually determine what constitute “military activities.” Current and former leadership within the U.S. government have given repeated assurances that the United States would take full advantage of this clause in its accession documents to exempt U.S. military activities and protect them from the jurisdiction of international courts and tribunals. In fact, this is specifically outlined in this Committee’s Draft Resolution of Advice and Consent of 2007 and continues to be supported by the current Administration.
A final focus of opponents’ criticisms is the Convention’s dispute settlement provisions. While reasonable people can differ over whether third- party dispute settlement is, on balance, a “pro” or a “con,” I believe that these particular provisions are useful, well-tailored, and in no event a reason to jettison the Convention. The United States affirmatively sought dispute settlement procedures in the Convention to encourage compliance and to promote the resolution of disputes by peaceful means. We sought and achieved procedures that are flexible in terms of forum. For example, the Convention allows a Party to choose arbitral tribunals and does not require any disputes to go to the International Court of Justice. Its procedures are also flexible, allowing a Party to choose to exclude certain types of disputes, such as those concerning military activities. In this regard, some have questioned whether it is up to the United States – or a tribunal – to determine what constitutes a U.S. “military activity” under the Convention. We propose to include a declaration in the Senate’s resolution of advice and consent making clear that each Party has the exclusive right to determine what constitutes its “military activity.” And I can assure you that there is no legal scenario under which we would be bound by a tribunal decision at odds with a U.S. determination of military activities.
Myth: The Convention would permit an international tribunal to second-guess the U.S. Navy.
Reality: No international tribunal would have jurisdiction over the U.S. Navy. U.S. military activities, including those of the U.S. Navy, would not be subject to any form of dispute resolution. The Convention expressly permits a party to exclude from dispute settlement those disputes that concern “military activities.” The United States will have the exclusive right to determine what constitutes a military activity.
The military activities exception is of obvious importance to the activities of the U.S. Armed Forces. As a result, we have examined this issue thoroughly to make certain that a tribunal cannot question whether U.S. activities are indeed “military” for purposes of that exception. Allow me to offer an example to illustrate the Administration’s concern. It is possible to imagine a scenario wherein another State Party calls upon a tribunal to decide whether or not our military surveys in that country’s EEZ or reconnaissance aircraft flying in the airspace above that country’s EEZ—both of which are military activities of paramount importance—are consistent with the Convention.
In this scenario, if a tribunal were permitted to interfere with such military activities, this would have a major impact on our military operations and U.S. national security.
In this light, the Administration closely examined the Convention, its negotiating history, and the practices of the tribunals constituted under the Convention. Based on this examination, the Administration believes that it is clear that whether an activity is “military” is for each State Party to determine for itself. Indeed, having the ability to determine what is a “military activity” involves vital national security interests that are critical to our ability to defend the Nation, protect our forces overseas, safeguard our interests abroad, and assist our friends and allies in times of need.
The Administration thus recommends that the United States submit a declaration electing to exclude all three of these categories of disputes from binding dispute settlement. With respect to the particular category of disputes concerning military activities, the Administration further recommends that the U.S. declaration make clear that its consent to accession to the Convention is conditioned upon the understanding that each Party has the exclusive right to determine which of its activities are “military activities” and that such determinations are not subject to review. We will provide the Committee with language on this point.
Myth 3: The Convention would permit an international tribunal to frustrate the operations of the U.S. Sea Services.
Wrong. No international tribunal would have jurisdiction over the U.S. Navy, Marine Corps, or Coast Guard. Disputes concerning military activities can be completely excluded from the Convention's resolution provisions, and the United States has the exclusive right to determine what constitutes a U.S. military activity. Since 1982, all Chiefs of Naval Operations have supported ratification, and in May 2007 the Coast Guard Commandant underscored the need for ratification.
Last year, before the Senate Foreign Relations Committee, Administration officials expressed their serious concerns about whether the Convention's dispute resolution process could possibly affect U.S. military activities. A review was conducted within the Executive Branch on whether a Law of the Sea tribunal could question whether U.S. activities are indeed "military" for purposes of the Convention's military activities exception clause. Based on the Administration's internal review, it is clear that whether an activity is "military" is for each State party to determine for itself. The declaration contained in the current Resolution of Ratification, stating the U.S. understanding that each Party has the exclusive right to determine which of its activities are "military activities" and that such determinations are not subject to review, has appropriately addressed this issue.
Third, some allege that in joining, our military would be subject to the jurisdiction of international courts – and that this represents a surrendering of U.S. sovereignty. But once again, this is not the case. The Convention provides that a party may declare it does not accept any dispute resolution procedures for disputes concerning military activities. This election has been made by 20 other nations that have joined the Convention, and the United States would do the same. The bottom line is that neither U.S. military activities nor a U.S. decision as to what constitutes a U.S. military activity would be subject to review by any international court or tribunal.
In 2003, Mark Esper, the Deputy Assistant Secretary of Defense for Negotiations Policy, testified"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.43"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
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 stated"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. . . . ”45"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.