Revision of U.S. has resolved the ambiguity in military activities exemption clause from Sat, 11/11/2017 - 16:53
The United States, as authorized by Article 298, would exempt “military activities” from compulsory dispute resolution. Under the Convention, a state party has the exclusive right to determine what constitutes a “military activity.” The U.S. declaration states:
The Government of the United States of America declares, in accordance with article 298(1), that it does not accept any of the procedures provided for in section 2 of Part XV (including, inter alia, the Seabed Disputes Chamber procedure referred to in article 287(2)) with respect to the categories of disputes set forth in sub-paragraphs (a), (b), and (c) of article 298(1). The United States further declares that its consent to accession to the Convention is conditioned upon the understanding that, under article 298(1)(b), each State Party has the exclusive right to determine whether its activities are or were ‘‘military activities’’ and that such determinations are not subject to review.
Quicktabs: Arguments
[MYTH]: Other parties will reject the U.S. “military activities” declaration as a reservation.19 Another false assertion—the American declaration is consistent with the Convention and is not a reservation (that is, in international legal usage, “a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.”)20 It is an option explicitly provided by article 298 of the Convention. Parties to the Convention that have already made such declarations exercising this option include the United Kingdom, Russia, France, Canada, Mexico, Argentina, Portugal, Denmark, Ukraine, Norway, and China.
While the Convention explicitly allows a state party to declare that certain conflicts will not be subject to the Treaty’s dispute resolution processes, those exceptions are narrow. Article 298(b) allows a state party to effectively insulate “military activities” from Convention jurisdiction. Concerned that an adverse party might seek to apply the Convention’s jurisdiction to a U.S. activity by characterizing it as nonmilitary, the Department of Defense recommended that accession to the Treaty be conditioned upon “the understanding that each Party [to the Convention] has the exclusive right to determine which of its activities are ‘military activities’ and that such determination are not subject to review.”57 This condition would protect a state party from becoming subject to a Convention-based dispute resolution tribunal if the military activity claim/exemption to such a tribunal were called into question.58
Speaking on behalf of the Joint Chiefs of Staff, Admiral Michael G. Mullen re- iterated the concerns raised by others in the defense community and agreed that the “military activities” exemption condition was of paramount importance in a U.S. move toward accession. The Admiral also agreed that accession was warranted. “Military operations since September 11 . . . have dramatically increased [U.S.] global military requirements.”59"Statement of Admiral Michael G. Mullen: On the Law of the Sea Convention ." Testimony before the Senate Foreign Relations Committee, October 21, 2003. [ More (3 quotes) ] In particular, Mullen noted that U.S. military operations relied upon “[t]he right of transit passage through international straits and the related regime of archipelagic sea lanes passage.”60"Statement of Admiral Michael G. Mullen: On the Law of the Sea Convention ." Testimony before the Senate Foreign Relations Committee, October 21, 2003. [ More (3 quotes) ] While maintaining that those rights were available to the United States under customary international law, “as a party to the Convention, the United States would . . . be in a stronger leadership position to assert its rights.”61"Statement of Admiral Michael G. Mullen: On the Law of the Sea Convention ." Testimony before the Senate Foreign Relations Committee, October 21, 2003. [ More (3 quotes) ]
Statements made by states to the LOS Convention have a high degree of importance because Article 309 of the Treaty bars state parties from making reservations. State parties may not except out undesirable language or provisions, as that would undermine the nature of the Convention as a package deal.23 Although states may not make reservations or exceptions when signing, ratifying, or acceding to the Treaty, they may provide statements with a view toward harmonizing their domestic laws and regulations with the Convention.24 Article 310 of the Convention provides authority for a state party, at the time of signature, ratification, or accession, or at any time thereafter, to make declarations and statements, provided such statements do not purport to exclude or to modify the legal effect of the provisions of the Convention. One hundred nineteen states have made such statements, including 33 that have done so upon signature, 60 states that have done so at the time of ratification or accession, and 16 more states that have done so at a later date.25
The Senate can ensure that international tribunals do not gain jurisdiction over our military activities when we join this Convention. In 2003, the Administration worked closely with the Committee to develop a proposed Resolution of Advice and Consent --- which we continue to support --- that contains a declaration regarding choice of procedure for dispute resolution. The United States rejected the International Court of Justice and the International Tribunal for the Law of the Sea and instead chose arbitration. That choice-of-procedure election is expressly provided for in the Convention itself. In addition, and again in accordance with the express terms of the Convention, the draft Resolution of Advice and Consent completely removes our military activities from the dispute resolution process. Furthermore, each State Party, including the United States, has the exclusive right to determine which of its activities constitutes a military activity, and that determination is not subject to review.
The proposed U.S. statements represent a set of terms applicable to U.S. conduct as a party to the Convention and are evidence of state practice. Furthermore, the provisions serve as a comprehensive compilation of U.S. positions on the most critical areas of oceans policy reflected over the years in diplomatic communications and associated policy pronouncements concerning operations by the armed forces of the Coast Guard and the Department of Defense. The statements also outline some of the more important conditions under which the United States will operate within the LOS Convention. In particular, the statements affect the conduct of air and sea exercises, operations, and intelligence activities of the armed forces, and reflect the continuing importance of global freedom of navigation and overflight of military, intelligence, and other public vessels and aircraft. Collectively, the statements affirm activities historically undertaken by the U.S. armed forces throughout the world’s oceans, and recognize that those operations are consistent with the rights and freedoms set forth in the Convention.27 The seven critical American understandings related to national security and the Law of the Sea Convention are identified below and discussed in detail throughout the remainder of this article.
- Military activities. The U.S. maintains the exclusive right, as a state party to determine whether activities it conducts at sea constitute “military activities,” and therefore are, at the election of the United States, exempt from the provisions concerning mandatory dispute resolution under the terms of the Treaty.28
- Peaceful purposes. The U.S. maintains that the Treaty wording “the seas shall be reserved for peaceful purposes” does not create new rights for coastal states or third countries, or generate any new obligations on behalf of naval powers.29
- Innocent passage. In accordance with Article 19 of the LOS Convention, coastal states may not restrict innocent passage based on cargo, means of propulsion, destination, purpose, or flag.30
- Transit and archipelagic sea-lanes passage. Military vessels and aircraft in their normal mode have the right of transit passage through straits used for international navigation and archipelagic sea-lanes passage through archipelagic sea-lanes and other normal routes normally used for international navigation, and coastal states may not restrict such passage.31
- Exclusive economic zone. Restrictions or requirements for prior consent or notification to operate military vessels or aircraft in the exclusive economic zone (EEZ) are inconsistent with the Convention.32
- Hydrographic and military surveys. Coastal states are not authorized to regulate hydrographic or military surveys in the EEZ, as these activities are separate and distinct from marine scientific research (MSR), which requires coastal state consent.33
- Excessive claims.The United States will continue to oppose excessive coastal state maritime claims, continuing to challenge or protest such claims through bilateral and multilateral and diplomatic forums and demarches, military-to-military engagement, and operational assertions by the air and sea forces of the Navy and Air Force.34
The Government of the United States of America declares, in accordance with article 298(1), that it does not accept any of the procedures provided for in section 2 of Part XV (including, inter alia, the Seabed Disputes Chamber procedure referred to in article 287(2)) with respect to the categories of disputes set forth in sub-paragraphs (a), (b), and (c) of article 298(1). The United States further declares that its consent to accession to the Convention is conditioned upon the understanding that, under article 298(1)(b), each State Party has the exclusive right to determine whether its activities are or were ‘‘military activities’’ and that such determinations are not subject to review.37The legal effect of the declaration is to exclude from the jurisdiction of any court, arbitral panel, or the ITLOS any dispute involving the United States arising from military and intelligence activities, as well as matters under consideration at the UN Security Council. The declaration also recognizes that the United States reserves an exclusive right to determine whether a questioned activity constitutes a “military” activity.38 Once removed from review or jurisdiction, U.S. military activities are exempt from exposure to arbitration or outside court ruling, or review by a compulsory international panel or other state. The declaration represents a cornerstone U.S. interpretation and is virtually identical to the one recommended in the 1994 SFRC transmittal package.39 Testifying in 2003, the Department of State Legal Adviser stated that the declaration was essential in order to protect U.S. military activities, such as military surveys and reconnaissance flights, that are conducted over foreign coastal state EEZs, ensuring that those activities are not inappropriately subjected to international dispute resolution procedures.40
The term "peaceful purposes" did not, of course, preclude military activities generally. The United States had consistently held that the conduct of military activities for peaceful purposes was in full accord with the Charter of the United Nations and with the principles of international law. Any specific limitation on military activities would require the negotiation of a detailed arms control agreement. (7)Indeed, in their zeal to complain about the convention, the critics promote an interpretation of this language that may be cited by opponents of future space-based missile defense programs. Thus, in a different context, the implication of this argument would be to ban the aforementioned defense systems because of our adherence to the Outer Space Treaty that contains the same "peaceful purposes" language. (8) Real world experience refutes this argument by showing warships of every major power freely navigating the world's oceans despite the convention being in force for 149 nations.
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.