Saturday, September 1, 2007

Lost Mandates Compulsory Dispute Settlement

LOST departs dramatically from the previous, 1958 convention governing navigation by obligating member states, in the event of disputes, to submit to mandatory settlement mechanisms. These apply not just to issues involving the maritime “rules of the road,” but to any ocean-related disputes that state parties cannot resolve on their own.

Nations are required – at the request of either of the disputing parties – to submit the dispute for resolution by one of several international tribunals: (1) The International Tribunal for the Law of the Sea (ITLOS), (2) an arbitral tribunal or (3) a special arbitral tribunal. Another option is the International Court of Justice (ICJ). If the parties to the dispute cannot agree on a mechanism, the dispute automatically goes to an arbitral tribunal for resolution. Decisions made by any of these bodies are binding upon the disputants, and such decisions cannot be appealed.

The question is: How will mandatory dispute resolution affect U.S. interests?

The Proponents’ Claims:

In the event of disputes, the United States will avoid potential problems with international courts by choosing either arbitration or special arbitration as the dispute mechanisms, thereby assuring decisions amenable to U.S. interests. Military activities will be exempted from consideration by any LOST tribunal and it will be exclusively up to the United States to determine what constitutes such an activity.

The Facts:

  • LOST proponents in the Bush Administration are right to be worried about international courts given the record of such panels, particularly of the ICJ, to be highly politicized and generally very hostile to American interests.

  • Unfortunately, the appointment procedures that would apply to the “swing” arbiters in both the regular and special arbitration panels are likely to assure a similar stacking of the deck against the United States. In regular arbitration, each party chooses one panelist, and the three remaining panelists are chosen by the President of the Law of the Sea Tribunal. In special arbitration, each party chooses two panelists, and the remaining panelist is chosen by the Secretary General of the United Nations.

  • Worse yet, the State Department has acknowledged that arbitration panels would likely look to decisions of the Tribunal to inform their own rulings. As a practical matter, this means that, were the United States to become a party to the Treaty, it would not be able to escape the reach of the Tribunal – despite its determination to forum-shop by choosing arbitration.

  • Equally untenable is the proponents’ insistence that Law of the Sea Treaty tribunals will be unable to interfere with U.S. military activities. Although LOST exempts “disputes concerning military activities” from the purview of its dispute resolution mechanisms, the Treaty does not define “military activities.”

  • Proponents of LOST argue that the United States can make a declaration that it will define “military activities” for itself. However, this amounts to a reservation to the treaty, which is expressly prohibited by LOST. LOST must be accepted or rejected in its entirety. Furthermore, if the U.S. military were allowed to make such a unilateral determination under LOST, the militaries of other nations would exercise the same option, creating an anarchic situation that would defeat the purposes of LOST altogether. LOST was clearly not intended to allow this to happen.

  • These considerations, combined with the Treaty’s sweeping environmental obligations, give rise to circumstances in which U.S. Navy and perhaps other military services, their contractors or suppliers seem virtually certain to find themselves embroiled in one or another of LOST’s dispute resolution mechanisms. For example, the Navy’s use of high-powered sonars would certainly be characterized by Washington as a military activity. But the Navy could well be forced to defend the use of such sonars before an unfriendly LOST panel on the grounds that it has harmed the “marine environment,” by killing whales or dolphins.

  • Worse yet, in the event of any dispute over whether an activity is military in nature, the tribunals created by LOST are permitted to make that determination themselves.

  • The mandatory and rigged nature of the dispute resolution mechanisms are one of the most important reasons why the United States will be better served by continuing its practice over the past twenty-five years – namely, voluntarily observing those parts of LOST that it finds unobjectionable, but remaining unencumbered by the obligations that are.

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