Publicist: The United States and the Law of the Sea Convention: U.S. Views Concerning the Settlement of International Law Disputes in International Tribunals and U.S. Courts

By
John E. Noyes*

The United States has not yet accepted the Law of the Sea Convention[1] and the 1994 Part XI Implementation Agreement,[2] which is to be read together with the Convention as a single instrument. Most countries, including most industrialized countries, have accepted these treaties, which are central to the international legal order for the oceans. Widespread support for the Convention exists in the United States, across the political spectrum and among businesses, environmental organizations, the military, and government leaders.[3] During George W. Bush’s presidency, both the administration and Democratic leaders supported U.S. accession to the Convention.[4] Yet the remaining opposition has been sufficiently strong thus far to prevent the U.S. Senate from giving its two-thirds advice and consent, a step that is constitutionally required before the United States can accede to the Convention.[5]

The U.S. opposition to the Convention reflects longstanding and deeply held positions of some segments of the U.S. body politic about foreign policy and international law. Although specific points that politically influential organizations have raised to argue against U.S. acceptance of the Convention reflect either a profound misunderstanding of the Convention or an intentional distortion of it, the ideological bases of the opposition are not marginal. Part I of this article discusses these opposition themes. If we understand how opposition to the Convention links to U.S. historical traditions, as well as understand the underpinnings of support for the Convention, we can better appreciate likely U.S. positions – including positions with respect to third-party dispute settlement – should the United States accept the Convention.

The United States will likely view restrictively the jurisdiction of the international judicial and arbitral tribunals authorized to settle disputes under the Convention, and will resist allowing the Convention to apply directly in U.S. courts. Part II of this article examines U.S. attitudes towards the jurisdiction of international courts and tribunals authorized to interpret and apply the Convention, and Part III examines U.S. attitudes towards application of the Convention in U.S. courts. Those who espouse a strict dualist perspective might regard these two Parts as addressing separate legal matters.[6] Nevertheless, as Yuval Shany has written, “national and international courts [are] potentially engaged in common functional and normative enterprises, specifically, the settlement of disputes together with development and enforcement of the rule of law in general, and international law in particular.”[7] It is therefore appropriate to examine U.S. attitudes towards dispute settlement in international courts and tribunals together with U.S. attitudes towards the use of international law in municipal courts.

Finally, Part IV of this article critically evaluates restrictive U.S. positions towards the jurisdiction of international third-party dispute settlement forums under the Convention and U.S. resistance to the direct application of the Convention in U.S. courts.

I. U.S. Attitudes Towards International Law and Institutions

Some historical context helps in understanding U.S. attitudes about the Convention, and in understanding the implications of U.S. acceptance of the Convention. Historical U.S. concerns may affect how the United States will view third-party proceedings in which the Convention may be interpreted and applied, should the United States accede to the Convention.

U.S. attitudes towards international law and international legal institutions are far from monolithic.[8] Different strands historically have competed for influence. One “idealistic” strand of U.S. foreign policy has favored the development of international courts and other institutions, as a way to promote the rule of law – at least a U.S. version of the rule of law – in the world. I put the word “idealistic” in quotation marks because, although nineteenth-century Anglo-American proponents of international courts were indeed utopian, others who have favored international courts and institutions have been quite pragmatic. For example, President Woodrow Wilson, who is often associated with an “idealistic” reliance on international institutions, in fact came to favor U.S. participation in the League of Nations and the Permanent Court of International Justice through a realist calculation that only international institutions such as the League and the Court could promote the sort of checks on uses of power that would serve U.S. interests in peace and stability.[9] A second strand of U.S. foreign policy has long promoted international legal arrangements and institutions that advance international trade and commerce. Because the United States has heavily relied on seaborne trade, and because the Convention promotes freedom of navigation and stable maritime boundaries (promoting certainty for, e.g., investors in offshore oil development), it is easy to see in this pro-commerce strand, as well as in the Wilsonian or “idealistic” tradition, strong reasons to support U.S. acceptance of the Convention. Proponents often list U.S. “interests” that the Convention will further. Many of these interests are favored because they fit with economic or rule-of-law values.

Other historically influential visions of U.S. foreign policy and international law may, however, help to explain concerns about the Convention in the United States. A third U.S. foreign policy tradition places strong faith in the U.S. military and unilateral implementation of policies related to U.S. security. Followers of this unilateralist/anti-institutionalist approach distrust ameliorative institutions – perhaps especially international ones – that are designed to improve the human condition. According to this view, such institutions are doomed to failure and may distract the United States from relying on its own resources to combat threats to its national security. It has been difficult for some unilateralists/anti-institutionalists to accept the idea that a multilateral treaty such as the Convention could help strengthen U.S. security, although the U.S. military and other Convention supporters have convincingly demonstrated that U.S. accession to the Convention would indeed have this effect. Unilateralists/anti-institutionalists are particularly critical of international courts or other international institutions that may attempt to restrain or pass judgment on U.S. uses of force or other national security measures. Mid-twentieth-century critics of “legalism-moralism” in the conduct of U.S. foreign affairs, and twenty-first-century critics of “lawfare,” follow in this historical unilateralist/anti-institutionalist tradition.

A fourth U.S. foreign policy tradition resists U.S. acceptance of norms developed by international institutions on the grounds that they may interfere with domestic U.S. conceptions of individual rights. Those who favor this view have been labeled human rights exceptionalists or sovereigntists.[10] International courts and other institutions are not part of the U.S. constitutional framework and are unaccountable to the U.S. body politic. In this view, an essential feature of U.S. foreign policy must be to preserve U.S. institutions and procedures, and their right to determine U.S. policies. International law, which is derived from interstate compromise or community practices and values, and which in its development is typically affected only indirectly by democratic participation, is also viewed with skepticism when it affects the rights of U.S. citizens. This is true at least of international law that does more than embody technical, international cooperation regimes, e.g., regarding uniform standards for navigational safety. In the human rights exceptionalist/sovereigntist view, the United States should resist joining international adjudicatory or policy-making institutions and be reluctant to apply international judicial decisions and international norms domestically, because such institutions and norms may interfere with U.S institutions and internal U.S. conceptions of individual rights. In general, both the human rights exceptionalist/sovereigntist and the unilateralist/anti-institutionalist traditions may help to explain concerns about U.S. acceptance of the Convention.

Historically, the United States has often not accepted treaties that provide for compulsory third-party procedures entailing binding decisions.[11] Despite much support for international courts and tribunals in the United States, especially in the late nineteenth and early twentieth centuries, the United States did not participate in the 1907 Central American Court of Justice, rejected the 1911 Taft Arbitration Treaties,[12] and refused to join the League of Nations and its Permanent Court of International Justice. In the latter half of the twentieth century, the United States has refused to accept the Optional Protocol concerning the Compulsory Settlement of Disputes,[13] which was related to the four 1958 Geneva law of the sea conventions, and has not accepted the jurisdiction of the Inter-American Court of Human Rights. When the United States accepted the optional clause compulsory jurisdiction of the International Court of Justice in 1946, the U.S. declaration was hedged with restrictive reservations that significantly limited U.S. amenability to the Court’s jurisdiction, and the United States withdrew its optional clause declaration entirely in 1985.[14]

In sum, the United States has some strong, longstanding foreign policy traditions supportive of international legal institutions and norms, but U.S. skepticism about such institutions and norms also has a long tradition. Many modern developments – economic integration, environmental concerns, and security threats – certainly push the United States towards greater reliance on international law, but other changes have reinforced the skepticism of portions of the U.S. body politic about international law and international legal institutions. For example, the post-World War II growth of international human rights law – a development reflected in several provisions of the Convention[15] – has seemed threatening to some in the United States. The United States of course has its own, well-established rights culture grounded in the federal Constitution’s Bill of Rights and the legal cultures of U.S. states, and the possibility of “foreign” influences on U.S. conceptions of individual rights has generated consternation in some circles. Just as the growth of international institutions that address the legality of use of force concerns those who value U.S. unilateral discretion on matters touching national security, the growth of international human rights institutions and norms concerns U.S. human rights exceptionalists/sovereigntists.[16]

Views about international law do not necessarily track views about foreign policy. Professional international lawyers may share many conceptions about the nature and sources of international law – despite ongoing debates, e.g., concerning the relative significance of consensual and nonconsensual sources of international law – while disagreeing profoundly about foreign policy. Yet those who favor unilateral U.S. approaches towards matters of national security may be particularly willing to regard international law related to the use of force as aspirational at best, and malleable in the extreme. Some recent accounts of international law by U.S. scholars, which are in large part dismissive of the field’s significance and effectiveness, complement this foreign policy attitude and echo some earlier U.S. skeptical views about international law. [17] Furthermore, human rights exceptionalists/sovereigntists typically favor dualism and believe that the scope of application of customary international law and treaties in U.S. courts should be minimal.

The story of U.S. traditions with respect to foreign policy and international law is complex, and foreign policy attitudes cannot always be neatly compartmentalized. For example, people espousing several different foreign policy traditions – not just unilateralists/anti-institutionalists – may doubt whether it is advisable to allow international courts to pass judgment on matters of vital interest to U.S. national security. Some overlap in views among the followers of some of the different U.S. traditions outlined in this Part is likely. Nevertheless, the overview in this Part may suggest some of the ingrained sources of opposition to the Convention in the United States. If the Obama administration successfully pushes for U.S. acceptance of the Convention, the “opposition themes” highlighted above – the concerns of the unilateralists/anti-institutionalists and of the human rights exceptionalists/sovereigntists – will not disappear.

How, if at all, will these opposition themes be relevant with respect to third-party forums that may interpret and apply the Convention? It is difficult to trace a direct linkage between opposition concerns and future U.S. positions on international third-party dispute settlement. After all, if the United States accepts the Convention, it will have accepted an instrument that provides for compulsory procedures entailing binding decisions by international courts and tribunals (the topic of Part II of this article); in that sense U.S. Convention opponents will simply have “lost.” It is also hard to trace exactly how opposition concerns may have influenced U.S. positions in the Resolution of Advice and Consent that has been proposed to accompany U.S. Senate approval of the Convention;[18] like all political compromises, the Resolution lacks ideological purity. Furthermore, the law respecting the application of U.S. treaties by U.S. courts (the topic of Part III) is shaped by a range of U.S. constitutional doctrines and precedents concerning U.S. foreign affairs law, separation of powers, and federalism. Thus, as regards the incorporation of the Convention into U.S. law, it may be hard to discern the influence of broad approaches to the nature of international law and foreign policy. Nevertheless, one can predict with some confidence that the United States will view quite restrictively the application of the Convention by both international and domestic third-party tribunals. These restrictive positions certainly correlate to the broader themes articulated in this Part. The next two Parts of this article highlight what positions the United States is likely to take with respect international and domestic third-party dispute settlement involving the Convention.

II. The United States, the Law of the Sea Convention, and International Third-Party Dispute Settlement

U.S. critics of the Convention have objected, inter alia, to formal third-party dispute settlement involving the Convention obligations. The U.S. Senate Foreign Relations Committee’s proposed understandings and declarations to the Convention[19] indicate that the United States may view restrictively the jurisdiction of international courts and tribunals operating under the Convention. Most problematic for the United States has been the possibility that an international tribunal might pass judgment on matters concerning U.S. military activities or intelligence gathering.

U.S. concerns about third-party dispute settlement were rarely voiced when the Convention was being negotiated. Indeed, the United States strongly supported third-party dispute settlement at the Third United Nations Conference on the Law of the Sea (UNCLOS III), the forum at which the Convention was negotiated during 1973-1982. U.S. negotiators regarded the dispute settlement provisions as important to achieving consensus at the negotiations and contributing to stability and predictability with respect to law of the sea disputes. According to Professor Louis B. Sohn, writing a third of a century ago during UNCLOS III, a
principal concern of the United States in the law of the sea negotiations is to provide procedures leading to a binding settlement of law of the sea disputes. Without such procedures it might be difficult to reach the final compromise needed to arrive at an overall solution of the issues before the Conference. The value of such a compromise would be greatly diminished if the parties to the treaty retained the right of unilateral interpretation, without any chance for an impartial adjudication. The purpose of the law of the sea negotiations is to achieve stability, certainty, and predictability, thus removing, or at least diminishing, the conflicts over law of the sea issues which otherwise might threaten the peace of the world. Only an effective method of dispute settlement can remove this danger. [20]

Statements of U.S. officials and U.S. proposals at UNCLOS III emphasized the need for a comprehensive dispute settlement system that would apply with minimal exceptions to all parties and to all parts of the Convention.[21] The binding third-party dispute settlement provisions should yield uniform interpretations of the Convention, with the United States favoring recourse to a permanent law of the sea tribunal to further that goal.[22] Another U.S. objective was “to broaden the access to dispute settlement methods,” opening some procedures to individuals and international organizations.[23] The United States was one of the leading proponents of a comprehensive, binding third-party dispute settlement system at UNCLOS III that would lead to uniform interpretation and application of the Convention.[24]

The complex third-party dispute settlement system of the Convention that emerged from UNCLOS III has been reviewed at length by many and will not be examined in detail here.[25] In broad outline, the Convention’s provisions for compulsory procedures entailing binding decisions, applicable when informal mechanisms do not lead to the settlement of disputes, are quite comprehensive. These provisions do contain a few limitations and authorize a few optional exceptions for sensitive subjects.[26] The Convention’s third-party dispute system is flexible – a feature that the United States conceded was necessary to achieve consensus – with states having a choice among a new International Tribunal for the Law of the Sea, the International Court of Justice, Annex VII arbitration, or, for certain technical matters, Annex VIII special arbitration before technical experts.[27] Indeed, states are free to agree on other formal or informal dispute settlement mechanisms,[28] and a separate set of options applies to deep seabed mining disputes.[29] Despite this flexibility, the third-party dispute settlement provisions are obligatory and binding, with arbitration being the default mechanism in non-seabed-mining cases if all parties to a dispute do not choose the same alternative forum.[30] Access of individuals to various tribunals is restricted.[31] Overall, the Convention’s provisions “on the settlement of disputes clearly show the mark of the leadership of the United States in the negotiations. Notwithstanding certain compromises on items where the United States itself had indicated that it could be flexible, the main objectives it had pursued were obtained.”[32]

During recent debates over accession to the Convention, however, the U.S. executive and legislative branches have exhibited some reluctance to embrace the jurisdiction of courts and tribunals authorized to hear disputes under Part XV, section 2 of the Convention. Each time the U.S. Senate Foreign Relations Committee has voted to send the Convention to the full Senate, seeking its two-thirds advice and consent to U.S. accession, the Committee has attached an identical Resolution of Advice and Consent to Ratification.[33] Many of this Resolution’s declarations and understandings reflect long-held U.S. views concerning the Convention’s freedom of navigation provisions, while other declarations and understandings put forward constructions of Convention provisions that will avoid conflicts between the Convention and existing U.S. legislation. For the purposes of this article, particularly relevant are the declarations and understandings that reveal restrictive interpretations of the jurisdiction of courts and tribunals, especially with respect to matters that the United States may judge important to its national security. These interpretations correspond to the concerns of the unilateralist/anti-institutionalist U.S. foreign policy tradition. Overall, as one distinguished commentator has put it, the United States has adopted a “defensive attitude” that seeks “minimum commitment together with maximum control” with respect to the Convention’s dispute settlement procedures.[34]

The U.S. Resolution of Advice and Consent does not formally contain reservations. The Convention generally prohibits reservations,[35] although Article 298 permits optional declarations by which states can exclude limited categories of disputes from the Convention's third-party dispute settlement provisions. Despite the general prohibition on reservations, several states have appended understandings or interpretive declarations when they have signed or ratified the Convention. Unlike reservations, understandings and interpretive declarations in theory do not “purport[] to exclude, limit, or modify [a] state’s legal obligation.”[36] Instead, interpretive declarations and understandings “specify or clarify the meaning or scope attributed by the declarant to a treaty or to certain of its provisions.”[37] The line between a permissible interpretive declaration and an impermissible reservation is not always easy to discern, for the name that a state attaches to a statement about a treaty is not dispositive.[38] The U.S. Advice and Consent Resolution contains declarations that are authorized under the Convention and that may limit Convention provisions that otherwise would apply (notably under Article 298). The Resolution also contains interpretative declarations and understandings that legally cannot, under Article 310 of the Convention, “purport to exclude or to modify the legal effect of the provisions of th[e] Convention in their application to” the United States.

The Advice and Consent Resolution helps us discern U.S. positions towards the Convention. Although this Resolution in theory could change in a future Congress, it is the product of an intensive interagency vetting within the U.S. government, and significant aspects of the Resolution reflect longstanding U.S. positions held by both Democratic and Republican administrations. The focus of this Part of this article is on the Advice and Consent Resolution’s provisions that address the jurisdiction of international courts and tribunals operating under the Convention. These provisions suggest the United States will interpret the jurisdiction of third-party tribunals restrictively and will attempt to limit U.S. amenability to the jurisdiction of international tribunals as much as possible.[39]

First, with respect to Article 287, which concerns a choice of third-party procedure, the Advice and Consent Resolution provides that the United States will select a special arbitral tribunal constituted in accordance with Annex VIII for all of the categories of disputes specified in that Annex (fisheries, marine environment, marine scientific research, and navigation).[40] The U.S. preference is to treat such disputes as matters for technical experts, rather than as international legal disputes to be heard by international judges or “regular” arbitrators. Annex VIII allows each party to a dispute to choose two of the five experts, which would permit significant U.S. control with respect to the composition of a tribunal should the United States become involved in special arbitration.[41] The United States may also find attractive Article 5(3) of Annex VIII, which, should the parties to a dispute agree, authorizes a special arbitral tribunal to formulate non-binding recommendations.[42] This U.S. preference for special arbitration predates the George W. Bush administration. It is also the option specified in a U.S. declaration to the 1995 Fish Stocks Agreement,[43] which incorporates by reference the dispute settlement provisions of the Convention, and the option that the Clinton administration proposed in 1994 that the United States adopt should it accede to the Convention.[44]

When a dispute concerning the interpretation or application of the Convention is brought before a third-party international dispute settlement mechanism, the forum will likely be an arbitral tribunal. With respect to disputes that are not covered by the categories specified in Annex VIII, the U.S. Advice and Consent Resolution specifies a choice of arbitration.[45] Arbitration is also the Article 287 “default third-party forum” with respect to disputes – including disputes falling within the categories specified in Annex VIII – where the parties have not both accepted the same forum.[46] In selecting arbitration, rather than judicial settlement before the International Tribunal for the Law of the Sea or the International Court of Justice, the United States may be seeking to maximize its flexibility with respect to third-party dispute settlement procedures.[47]

Second, the Advice and Consent Resolution notes the Article 297 limitations on the applicability of Part XV, section 2 of the Convention. The Resolution contains an understanding emphasizing that, in the U.S. view, coastal state determinations under Articles 61 and 62 are not subject to binding dispute settlement:
The United States understands that, with respect to articles 61 and 62, a coastal State has the exclusive right to determine the allowable catch of the living resources in its exclusive economic zone, whether it has the capacity to harvest the entire allowable catch, whether any surplus exists for allocation to other States, and to establish the terms and conditions under which access may be granted. The United States further understands that such determinations are, by virtue of article 297(3)(a), not subject to binding dispute resolution under the Convention.[48]

This understanding, which is in line with the Convention’s provisions, serves to emphasize the U.S. view that the Convention’s dispute settlement provisions should be read restrictively.

Third, the Advice and Consent Resolution contains a declaration that the United States does not accept Part XV, section 2 procedures “with respect to the categories of disputes set forth in subparagraphs (a), (b), and (c) of article 298(1).”[49] This declaration thus excludes from Part XV, section 2 the maximum categories of disputes that may be exempted under Article 298. The matters covered include disputes concerning: maritime delimitation of the territorial sea, the exclusive economic zone, and the continental shelf; historic bays; military activities; enforcement activities related to EEZ fisheries and marine scientific research; and “disputes in respect of which the Security Council of the United Nations is exercising the functions assigned to it by the Charter of the United Nations.” This U.S. declaration would limit the ability of the United States to challenge the conduct of other states before third-party tribunals. By excluding “disputes concerning military activities,” for example, the United States could not, according to Article 298(3), bring a third-party proceeding challenging the legality of military activities by coastal states that impeded U.S. attempts at transit passage through straits or innocent passage in the territorial sea.[50] Nonetheless, the concern that the legality of the United States’ own military activities might be challenged before a public, third-party tribunal apparently carries greater weight. Avoiding judicial scrutiny of the legality of U.S. uses of force, as occurred in the ICJ’s Nicaragua and Oil Platforms cases,[51] or the concern that the United States might have to disclose military secrets to a tribunal, probably led the United States to include this military activities exception.[52]

Although the exercise of U.S. discretion to exempt disputes concerning military activities is permissible under the Convention, the next sentence in the proposed U.S. Advice and Consent Resolution adds a bold declaration: “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.” This self-judging provision is not authorized by the Convention. It is arguably a disguised reservation, impermissible under Article 309 of the Convention, and it may run afoul of the compétence de la compétence principle.[53] At the least, this declaration should be read to incorporate an implicit “good faith” limitation.

Furthermore, the United States has indicated that it may broadly construe the scope of the military activities exception. The U.S. State Department takes the position “that intelligence activities at sea are military activities for purposes of the U.S. dispute settlement exclusion under the Convention and thus the binding dispute settlement procedures would not apply to U.S. intelligence activities at sea.”[54] The Advice and Consent Resolution also includes an understanding providing that a U.S. military vessel’s collection of “military survey data” is a “military activity.”[55] Hypothetical situations in which U.S. views concerning the scope of “military activities” might differ from the views of international judges or arbitrators are not difficult to imagine. For example, consider a case in which a coastal state challenged the collection in its EEZ of “military survey data” by a U.S. military vessel. Would an international tribunal accept the U.S. assertion that this data collection was a “military activity”? Or would the tribunal instead characterize a dispute over such data collection as one involving coastal state restrictions on the conduct of marine scientific research? Is military deployment of a listening or security device on a coastal state’s continental shelf a “military activity” (likely the U.S. view), or would this deployment fall within the scope of the coastal state’s control over installations on the continental shelf (under Article 60(1)(c) of the Convention)? The self-judging U.S. “military activities” condition in the Advice and Consent Resolution suggests that the United States desires to preserve its flexibility not to participate in certain third-party proceedings, and that the United States may well regard with great skepticism any attempt to proceed with a case that the United States deems to concern military activities. U.S. State Department and Department of Defense officials, along with military leaders, have stressed the importance of this “military activities” condition.[56]

The U.S. Article 298(1) declaration also attempts to cover procedures before the Seabed Disputes Chamber. Under the Advice and Consent Resolution, the United States would “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 [A]rticle 287(2)) with respect to” disputes falling within the scope of Article 298(1)(a)-(c). The attempt to exclude procedures before a dispute settlement body created by Part XI – the Seabed Disputes Chamber – might be meaningless, for Article 298 refers to the non-acceptance of procedures “provided for in [Part XV,] section 2.”[57] In addition, this technical question of whether Seabed Disputes Chamber procedures are “provided for” in Part XV, section 2, and hence can be exempted under Article 298, may be academic. After all, Article 187 limits the jurisdiction of the Seabed Disputes Chamber in contentious cases to “disputes with respect to activities in the Area.”[58] Such disputes probably would not relate to matters falling within the Article 298(1)(a)-(c) exceptions, although one could hypothesize a dispute concerning activities in the Area with respect to which the U.N. Security Council is seized, thus bringing into play Article 298(1)(c). But the broader point is, again, that the United States, in the Resolution of Advice and Consent, appears intent on minimizing, to the fullest extent possible under the Convention, its exposure to obligatory international judicial and arbitral proceedings.

The United States is not today unalterably opposed to the dispute settlement provisions of the Convention. Indeed, it has already accepted them, since it has ratified the 1995 Fish Stocks Agreement and the 2000 Convention on Central and Western Pacific Fisheries, both of which incorporate by reference the dispute settlement provisions of the Convention.[59] However, the Convention as a whole envisions roles for institutions and sets out rules potentially affecting a wide range of subject matters. The Resolution of Advice and Consent – especially its declarations and understandings relating to military activities – reflects an attitude of caution about U.S. participation in the Convention’s third-party dispute settlement procedures. The Resolution appears to reflect some of the concerns of the unilateralists/anti-institutionalists.

U.S. supporters of the Convention have raised “defensive” arguments about the Convention’s dispute settlement provisions. For example: The scope of jurisdiction of tribunals under the Convention is not broad; military and intelligence activities are exempt from third-party procedures; the Convention emphasizes informal methods of dispute settlement; and the Convention’s dispute settlement provisions should be analogized to “ordinary” compromissory clauses in other (albeit typically more narrowly focused) treaties.[60] These arguments appear intended to persuade U.S. Convention opponents who are skeptical about international tribunals. Although some strong Convention supporters in the United States have noted broader benefits of the Convention’s third-party dispute settlement provisions – they can “assist in conflict resolution generally” and can be “a powerful mechanism to control illegal coastal state claims”[61] – the tenor of many discussions has been that the Convention’s dispute settlement provisions are a price that must be paid in order for the United States to gain substantive, security- and commerce-related benefits from joining the Convention.

III. U.S. Domestic Litigation and the Law of the Sea Convention

This Part of this article focuses on whether the Convention could be invoked as treaty law in U.S. litigation, and specifically whether the Convention will be “self-executing.” [62] This Part, like Part II, concerns restrictions on possibilities for interpreting and applying the Convention in third-party proceedings. The analysis of self-execution, however, involves questions of U.S. constitutional law that were not necessary to the analysis in Part II. The U.S. Senate Foreign Relations Committee’s Advice and Consent Resolution, along with a recent U.S. Supreme Court decision concerning what effects U.S. courts may give to treaties and international court decisions, suggest that opportunities for invoking the Convention as treaty law in U.S. courts will be limited.

The self-executing treaty issue concerns whether a U.S. treaty applies directly in U.S. courts without implementing legislation. Treaties did not have direct effect in British courts when the United States gained its independence and when the U.S. Constitution was adopted; Parliament had to incorporate treaties into British municipal law by legislation. In an early U.S. Supreme Court opinion, Chief Justice Marshall famously stated that, in the United States, “a different principle is established” from the British principle requiring legislative implementation of treaties.[63] The U.S. Constitution provides that U.S. treaties, along with federal statutes and the U.S. Constitution, are part of the “supreme Law of the Land; and the Judges in every State shall be bound thereby.”[64] The constitutional default position in the United States traditionally has been that treaties are self-executing.[65]

Yet U.S. courts have on occasion found some treaties (or some portions of treaties) not to be self-executing. Will the Convention be self-executing? In order to answer this question, it is important to consider the Supreme Court’s 2008 opinion in Medellín v. Texas.[66] In Medellín the Court, by a vote of 6-3, found that the Optional Protocol to the Vienna Convention on Consular Relations, the I.C.J. Statute, and Article 94(1) of the U.N. Charter were not self-executing.[67] Medellín, who had been sentenced to death by a Texas state court after a criminal trial, had tried to invoke the ICJ’s Avena judgment[68] in U.S. court. In Avena, the ICJ ruled that the United States had violated its obligations under Article 36(1)(b) of the Vienna Convention on Consular Relations by failing to inform Medellín and other Mexican nationals of their right to contact a Mexican consul after being arrested; U.S. rules of “procedural default,” under which Medellín had waived his Vienna Convention right, did not, at international law, justify the U.S. violation of the Convention. The United States acknowledged that Medellín had not been provided the required consular notification under the Vienna Convention, but disputed what remedies the ICJ should prescribe. The ICJ found that the United States was obligated “to provide, by means of its own choosing, review and reconsideration of the convictions and sentences of” Medellín and other affected Mexican nationals.[69] According to the U.S. Supreme Court, however, because none of the treaties invoked in Medellín to try to implement the Avena judgment “creates binding federal law in the absence of implementing legislation, and because it is uncontested that no such legislation exists, … the Avena judgment is not automatically binding domestic law.”[70]

Several important points emerge from the Medellín opinion. First, it indicates that the United States currently follows a strong dualist position. The Supreme Court emphasized that treaties are binding on the United States at international law, creating obligations vis-à-vis other countries.[71] However, “not all international law obligations automatically constitute binding federal law enforceable in United States courts.”[72] Only self-executing treaties may be enforceable in U.S. courts. Second, Medellín helps to clarify the meaning of “self-executing.” According to the Supreme Court, a self-executing treaty “has automatic domestic effect as federal law upon ratification. Conversely, a ‘non-self-executing’ treaty does not by itself give rise to domestically enforceable federal law. Whether such a treaty has domestic effect depends upon implementing legislation passed by Congress.”[73] The Court also suggested that not every self-executing treaty creates private rights or a private cause of action, and that an inquiry into private rights or private causes of action is distinct from the inquiry into the treaty’s self-executing status.[74]

Third, Medellín reveals the Supreme Court’s current approach concerning how to distinguish self-executing from non-self-executing treaties. In order to determine whether a treaty is self-executing, one looks primarily to the treaty text, an approach that the dissent strongly criticized as unlikely to reveal information about self-execution, given the variety of domestic treaty incorporation traditions of various countries.[75] However, the text of a treaty is not the only relevant source. The majority also invoked U.S. domestic advice and consent debates when it analyzed whether Article 94 of the U.N. Charter was self-executing. In addition, the Court made clear that in construing a treaty, one may also consider the expectations of other parties to a treaty, as revealed, for example, in the “postratification understanding” of those parties.[76]

In sum, the Supreme Court has apparently rejected the historical presumption that U.S. treaties are self-executing and has articulated a test for self-execution that may often be difficult to meet. The Court has not, however, foreclosed all reliance on treaties in U.S. courts. First, the Court has found many treaties to be self-executing; it would be difficult to overrule these precedents, especially in litigation involving the same treaties. Second, with respect to treaties that authorize decisions of third-party tribunals, the Court claimed it was limiting its decision to the particular treaties at issue in Medellín: “We do not suggest that treaties can never afford binding domestic effect to international tribunal judgments – only that the U.N. Charter, the Optional Protocol, and the ICJ Statute do not do so.”[77] Third, “[i]n interpreting our treaty obligations, we also consider the views of the ICJ itself, ‘giv[ing] respectful consideration to the interpretation of an international treaty rendered by an international court with jurisdiction to interpret [the treaty].’”[78]

Unlike the Convention, none of the treaties at issue in Medellín attached any Senate declarations that revealed the Senate’s views concerning whether the treaties should be regarded as self-executing or non-self-executing. The Supreme Court has not ruled on the effect of such declarations, and commentators have debated their constitutionality.[79] The intent of the President and Senate with respect to a treaty’s self-executing status may be clearly revealed in declarations appended by the Senate during the advice and consent process and approved by the President when he finally ratifies the treaty. However, a question arises concerning the constitutionality of non-self-executing declarations because unilateral declarations are not part of treaties, and according to the Constitution, treaties themselves, when “made … under the Authority of the United States,” are the “supreme Law of the Land.”[80]

The Advice and Consent Resolution adopted by the Senate Foreign Relations Committee declares that all except the privileges and immunities provisions of the Convention are not self-executing.[81] Although the Supreme Court in Medellín indicated that, in determining whether a treaty is self-executing, courts should look primarily at the treaty text, it remains very possible that the Advice and Consent Resolution’s non-self-executing declaration would be given effect. As noted above, the Court examined the Senate debates in determining whether Article 94 of the U.N. Charter would be self-executing, and commentators have suggested that Medellín is consistent with using an “intent-of-the-U.S.” approach in determining a treaty’s self-executing status.[82] With respect to other treaty interpretation issues, the Supreme Court has on occasion looked at Senate debates to discern (or supplement) the intent expressed in the text of U.S. treaties,[83] and U.S. courts may well accept that the Convention is not self-executing.[84]

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 of the 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 Medellín, 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 and without precedential effect in any court of the United States.[86]

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 Medellín, 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.[88]

The opinions in Medellín reflect some of the broad themes noted in Part I of this article. The case is of course not a treatise on U.S. views concerning foreign relations or international law in general. The case concerned whether particular treaties were enforceable federal law in U.S. courts and could affect individual rights. Nevertheless, some differences between how the majority and the dissent characterized international law are apparent. The Medellín majority viewed the treaties at issue in the case in state-centric terms, an attitude in line with the human rights exceptionalist/sovereigntist view that individual rights should be derived from and grounded in U.S. values and laws. According to Justice Roberts, writing for the majority and quoting a U.S. decision from the state-centric late nineteenth century, “[a] treaty is, of course, ‘primarily a compact between independent nations.’”[89] The majority cited the ICJ’s Statute, to emphasize both that “the ICJ can hear disputes only between nations” and that an ICJ decision “‘has no binding force except between the parties and in respect of that particular case.’”[90] By contrast, the dissent stressed that the claims in Avena were “treated in relevant respects as the claims of the represented individuals” and that the ICJ has the “undisputed jurisdiction to adjudicate the rights of the individuals named” in a binding ICJ judgment.[91] International law is “real law,” according to the dissent, applicable to individuals as well as to states.

The dissent also highlighted the potential adverse policy implications of the Medellín decision for property and commercial rights, echoing the concerns of another of the historically important strands of U.S. foreign policy noted in Part I.[92] According to the dissent, the majority’s approach “threatens to deprive individuals, including businesses, property owners, … and others, of the workable dispute resolution procedures that many treaties, including commercially oriented treaties, provide. In a world where commerce, trade, and travel have become ever more international, that is a step in the wrong direction.”[93]

The Medellín opinions also echo other historically prominent U.S. traditions relating to international tribunals. In line with the “idealistic” Wilsonian U.S. foreign policy and international law tradition, the dissent emphasized rule-of-law values: “insofar as today’s holdings make it more difficult to enforce the judgments of international tribunals, … those holdings weaken th[e] rule of law;” the majority’s holdings risk “diminishing our Nation’s reputation abroad as a result of our failure to follow the ‘rule of law’ principles that we preach.”[94] And the dissent noted historic support in the United States for an “international court of justice” with jurisdiction over all justiciable international disputes.[95] By contrast, the majority’s dualist approach links to the human rights exceptionalist/sovereigntist tradition.[96] Both the majority and the dissent were concerned that treaties that address sensitive U.S. foreign policy matters not be considered self-executing.[97]

Should the prediction of this article prove correct – that the combination of the Medellín decision and the Convention’s Advice and Consent Resolution will make most provisions of the Convention non-self-executing or will otherwise preclude those provisions from being used directly as rules of decision in U.S. courts – certain practical consequences follow. The battle, with respect to U.S. implementation of the Convention, will shift to Congress, which will consider implementing legislation. Although much U.S. legislation is already consistent with the Convention, ensuring that all U.S. law is consistent will be a complex process. The different views of Convention proponents and opponents – formerly seen in disputes over whether the United States should accept the Convention at all and in disputes over whether the Convention should be self-executing – will be raised in debates over whether legislation to implement the Convention should be passed, either at all or with qualifications. Once legislation implementing the Convention is passed, the possibility also exists that it could be superseded as U.S. federal law by new, inconsistent legislation that Congress enacts.[98]

IV. Critique of Restrictive U.S. Positions and Conclusion

This article has highlighted some U.S. foreign policy and international law traditions and noted a correlation between those traditions and restrictive U.S. positions about international and municipal third-party dispute settlement related to the Convention. Several provisions of the Senate Foreign Relations Committee’s Advice and Consent Resolution reflect such restrictive positions. Furthermore, with respect to the potential direct application of the Convention in U.S. courts, one must consider the U.S. Supreme Court’s 2008 decision in Medellín, which found certain treaties to be non-self-executing – a result arguably in conflict with what had traditionally been understood as the U.S. constitutional default position of self-execution.

Underlying these restrictive views are skeptical U.S. attitudes about relying on international institutions, including international courts and tribunals, particularly with respect to matters touching on national security. These attitudes are revealed especially in a declaration in the Advice and Consent Resolution that provides not only that the United States will exempt military activities from the Convention’s third-party dispute settlement procedures under Article 298 of the Convention, but also will itself be the sole judge of what constitutes a “military activity.” Followers of the unilateralist/anti-institutionalist U.S. foreign policy tradition would be comfortable with this declaration.

This issue is a difficult one for the United States. At times in the past, U.S. leaders, in line with a Wilsonian or “idealistic” tradition, have promoted U.S. acceptance of the jurisdiction of international tribunals, even to decide matters of vital interest to the United States.[99] But such efforts typically have not succeeded, or have been hedged with significant exceptions.[100] In recent years, the views of the United States concerning the legality of recourse to force have differed from the views of the ICJ, as expressed in the Nicaragua and Oil Platforms judgments, and there is strong resistance in the United States to recognizing the jurisdiction of international tribunals in cases relating to U.S. national security.

Refusing to fully embrace the third-party dispute settlement mechanisms of the Convention has its costs. As noted above, Article 298(3) of the Convention would prohibit the United States from judicially challenging other states’ “military activities,” if the United States declares itself exempt from third-party proceedings involving military activities. The same is true of other matters falling within the scope of Article 298, including the Article 298(1)(b) optional exception for enforcement activities concerning EEZ fisheries and marine scientific research. The United States supports unimpeded marine scientific research and has a distant-water fishing industry. Under the Advice and Consent Resolution, however, the United States could not invoke the Convention’s provisions on compulsory procedures entailing binding decisions to protect U.S. actors who engage in those activities from interference by other coastal states.[101] The record of tribunals operating under the Convention should help to assure the United States that those tribunals can help to reinforce Convention norms, to the benefit of the United States. For example, the International Tribunal for the Law of the Sea has, in cautious fashion, reinforced the text of and the basic compromises embodied in the Convention.[102]

A reluctance to find treaties that may address individual rights, including the Convention, to be self-executing in U.S. court correlates to the human rights exceptionalist/sovereigntist view of U.S. foreign policy and international law outlined in Part I. Both the U.S. Supreme Court’s Medellín decision and the Advice and Consent Resolution are consistent with this view.

Yet refusing to allow direct application of the Convention in U.S. courts would also carry costs. It is consistent with some U.S. traditions to regard international law, even as it applies to individuals, as fully justiciable law, like domestic statutory and case law. In this view, applying the Convention in U.S. cases concerning individuals would be an ordinary exercise of judicial authority. In general, direct application of the Convention in cases involving individuals could have the salutary effect of promoting respect for basic human rights in other countries. There may be other benefits of such application as well. Recognizing the direct applicability of the Convention’s prompt release articles in U.S. court, for example, could defuse conflicts with other states. In addition, the U.S. tradition of promoting international trade and commerce – reflected in the Medellín dissent’s concern that the majority’s decision “threatens to deprive … businesses [and] property owners …. of the workable dispute resolution procedures that many treaties, including commercially oriented treaties, provide”[103] – suggests an historically strong reason not to read the Medellín Court’s non-self-execution holding too broadly. The concern with safeguarding commercial relationships also counsels against writing the non-self-executing provisions of the Advice and Consent Resolution too broadly, or at least counsels in favor of insuring that U.S. legislation fully implements Convention provisions.

If the Convention were self-executing, U.S. courts might help to build state practice and help to reinforce interpretations of the Convention that favor U.S. positions. It is unlikely that U.S. courts would reach decisions construing the Convention in ways that were antithetical to the views of the U.S. Executive Branch. First, U.S. courts could invoke a variety of other prudential abstention doctrines, such as the political question doctrine, to avoid hearing cases that might adversely affect truly sensitive matters of U.S. foreign policy. Both the majority and dissent in Medellín signaled this concern, noting that U.S. courts should not hear such politically sensitive cases. Second, when U.S. courts do apply treaties directly, the courts often accord great weight to the suggestions of the Executive Branch concerning the interpretation of the treaties.[104]

We would do well to remember the original justifications for including the third-party dispute settlement provisions in the Convention. These justifications – which U.S. officials articulated and supported during UNCLOS III – include promoting certainty, predictability, and stability, with respect to rules that greatly benefit the United States.[105] These dispute settlement provisions can help deter illegal behavior, as well as promote the peaceful settlement of disputes. Domestic enforcement of Convention provisions can also serve this end. At the most fundamental level, the Convention furthers the rule of law in the world – the values of using agreed-upon rules and procedures to resist unilateral assertions of jurisdiction or sovereign control, resolving differences even-handedly according to established rules, and providing stable expectations for international actors. Giving full effect to provisions for third-party dispute settlement at the international and national levels would help further these values.

* Professor of Law, California Western School of Law; President, American Branch of the International Law Association.

[1] United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter LOS Convention].

[2] Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, July 28, 1994, 1836 U.N.T.S. 3.

[3] See, e.g., United Nations Convention on the Law of the Sea: Hearing Before the S. Comm. on Foreign Relations, 108th Cong. (2003), S. Exec. Rep. No. 108-10, at 23-187 (2004) (Annex II).

[4] The George W. Bush administration first signaled its support for the Convention and the 1994 Implementation Agreement in November 2001. Law of the Sea and Related Boundary Issues; United Nations Convention on the Law of the Sea; United States’ non-party status, 2001 Digest, ch. 12, § A(1)(a), at 675-76. In May 2007 the President urged the Senate to support U.S. accession to the Convention, noting benefits to the United States in terms of national security, securing sovereign rights over marine areas and natural resources, promoting environmental interests, and “giving the United States a seat at the table when the rights that are vital to our interests are debated and interpreted.” Statement of May 19, 2007, quoted in S. Exec. Rep. No. 108-10, at 3 (2004); Press Release, White House, President’s Statement on Advancing U.S. Interests in the World’s Oceans (May 15, 2007), available at http://www.whitehouse.gov/news/releases/2007/05/20070515-2.html.

[5] U.S. Const. art. 2, § 2. The Senate Foreign Relations Committee twice (in 2004 under Republican leadership, and in 2007 under Democratic leadership) approved the Convention and the 1994 Part XI Implementation Agreement and sent them to the full Senate, but the Senate has not acted.

[6] The focus of the two Parts is different: Part II concerns the jurisdiction of international courts and tribunals and the potential for direct participation by the United States as a party in a third-party proceeding. Although the United States also could be a party in some U.S. court cases related to the Convention, the main focus of Part III is on whether the Convention and international judicial and arbitral decisions may be directly applied in U.S. court.

[7] Yuval Shany, Regulating Jurisdictional Relations Between National and International Courts 5 (2007).

[8] For discussion of themes noted in Part I of this article, see, e.g., Walter Russell Mead, Special Providence: American Foreign Policy and How It Changed the World (2001); Mark Weston Janis, The American Tradition of International Law: Great Expectations 1789-1914 (2001); John E. Noyes, Universalism and the American Tradition of International Law, 21 Conn. J. Int’l L. 199 (2006); John E. Noyes, U.S. Policy and the United Nations Convention on the Law of the Sea, 39 Geo. Wash. Int’l L. Rev. 621 (2007). For a related, though not explicitly historically grounded, examination of the relationship between U.S. adjudication and the creation and elaboration of international legal norms, see Margaret E. McGuinness, Three Narratives of Medellín v. Texas, 31 Suffolk Transnat’l L. Rev. 227 (2008).

[9] See Mark Weston Janis, How “Wilsonian” was Woodrow Wilson?, 5 Dartmouth L.J. 1, 13-14 (2007).

[10] The terms “constitutionalist” or “sovereigntist” have been used “to refer to those in the American legal academy who ‘distinguish between the international and domestic legal systems, [and] emphasize constitutional structure as a limitation on the domestic effect of international law. These individuals generally advocate political branch, rather than judicial control over the domestic implementation of international legal obligations.’” McGuinness, supra note 8, at 231 n.23 (quoting Curtis A. Bradley, The Federal Judicial Power, 2006 Sup. Ct. Rev. 59 (2006)). For a useful unpacking of the concept of U.S exceptionalism, see Harold Hongju Koh, On American Exceptionalism, 55 Stan. L. Rev. 1479 (2003).

[11] Mark Weston Janis, An Introduction to International Law 125-26, 139-40, 212, 289 (5th ed. 2008).

[12] See John E. Noyes, Taft Arbitration Treaties, 1911, in Max Planck Encyclopedia of Public International Law (Rüdiger Wolfrum ed., 2008), available at www.oup.com/online/law/epil.

[13] Optional Protocol of Signature concerning the Compulsory Settlement of Disputes, Apr. 29, 1958, 450 U.N.T.S. 169.

[14] 24 I.L.M. 1742 (1985).

[15] See Bernard H. Oxman, Human Rights and the United Nations Convention on the Law of the Sea, 36 Colum. J. Transnat’l L. 399 (1997).

[16] It comes as a surprise to some that the George W. Bush administration supported U.S. accession to the Convention. See supra note 4. After all, the Bush administration, especially in its early years, advocated unilateral uses of force and denigrated some international institutions. However, the administration became convinced that the navigation provisions of the Convention, interpreted in light of long-held U.S. positions, would help safeguard U.S. security in a post-9/11 world. See John E. Noyes, The United States, the Law of the Sea Convention, and Freedom of Navigation, 29 Suffolk Transnat’l L. Rev. 1, 5-6, 23 (2005). This security concern is the primary explanation for the administration’s support of the Convention. Yet the administration’s skepticism about multilateralism and about international institutions may well have led the administration – even when it had some political clout – to refrain from vigorous lobbying in the Senate to back up the administration’s officially declared support for the Convention. See Jim Lobe, Right-Wing Republicans Sinking Law of the Sea, Again, Inter Press Service, June 3, 2004, available at http://www.commondreams.org/headlines04/0603-07.htm.

[17] E.g., Jack L. Goldsmith & Eric A. Posner, The Limits of International Law (2005).

[18] Text of Resolution of Advice and Consent to Ratification, in Sen. Exec. Rep. No. 110-9, at 19 (2007) [hereinafter Advice and Consent Resolution].

[19] Id.

[20] Louis B. Sohn, U.S. Policy Toward the Settlement of Law of the Sea Disputes, 17 Va. J. Int’l L. 9, 13 (1976).

[21] Statement of Ambassador Stevenson at Main Comm. of the Seabed Comm., Aug. 21, 1973, 69 Dep’t St. Bull. 412, 414 (1973); Statement of Ambassador Learson at UNCLOS III Plenary, Apr. 6, 1976, 5 UNCLOS III Official Records 31, U.N. Doc. A/CONF.62, U.N. Sales No. E.79.V.3; Draft Articles on Dispute Settlement: United States Proposal to the Sea-bed Committee, U.N. Doc. A/AC.138/97, UNGAOR, 28th Sess., Supp. No. 21 (A/9021), vol. II, at 22 (1973). See also John L. Stevenson & Bernard H. Oxman, The Preparations for the Law of the Sea Conference, 68 Am. J. Int’l L. 1, 31-32 (1974).

[22] See Draft Articles on Dispute Settlement, supra note 21, arts. 2, 7.

[23] Sohn, U.S. Policy, supra note 20, at 14. See, e.g., Draft Articles on Dispute Settlement, supra note 21, art. 8 (proposing jurisdiction by a Law of the Sea Tribunal that would have jurisdiction over prompt release applications brought directly by vessel owners or operators).

[24] Nevertheless, even during this period, some U.S. observers viewed skeptically the proposed dispute settlement provisions. See Marianne P. Gaertner, The Dispute Settlement Provisions of the Convention on the Law of the Sea: Critique and Alternatives to the International Tribunal for the Law of the Sea, 19 San Diego L. Rev. 577 (1982).

[25] See, e.g., A.O. Adede, The System for Settlement of Disputes Under the United Nations Convention on the Law of the Sea: A Drafting History and Commentary (1987); J.G. Merrills, International Dispute Settlement 182-210 (4th ed. 2005); Louis B. Sohn, Peaceful Settlement of International Disputes: Does UNCLOS III Point the Way?, 46 L. & Contemp. Probs. No. 2, Spring 1983, at 195.

[26] LOS Convention, supra note 1, arts. 297-298.

[27] Id. art. 287.

[28] Id. arts. 280-282.

[29] Id. arts. 186-191.

[30] Id. art. 287(3), (5).

[31] For example, “[t]he possibility of submitting an application for prompt release ‘on behalf’ of the flag State set out in article 292, para. 2, was a compromise between direct access proposed by the United States and the wish of other delegations not to give locus standi to non-state parties.” Tullio Treves, The Settlement of Disputes under the Law of the Sea Convention – Questions in Light of the United States Position, 36 EurAmerica No. 3, Sept. 2006, at 1, 17-18.

[32] Id. at 18.

[33] Advice and Consent Resolution, supra note 18. This 2007 Resolution is identical to the one promulgated by the Senate Foreign Relations Committee when it voted to send the Convention and the 1994 Implementation Agreement to the full Senate in 2004. Text of Resolution of Advice and Consent to Ratification, Sen. Exec. Rep. No. 108-10, at 16 (2004). If the full Senate does not vote on a treaty approved by the Senate Foreign Relations Committee during either annual session of a particular Congress, the Committee must vote anew to bring the treaty before the Senate. See Standing Rules of the Senate, S. Doc. No. 106-5, Rule 30(2) (2000).

[34] Treves, supra note 31, at 26.

[35] LOS Convention, supra note 1, art. 309.

[36] Restatement (Third) of Foreign Relations Law of the United States § 313 cmt. g (1987). Accord LOS Convention, supra note 1, art. 310.

[37] International Law Commission, Text of Draft Guidelines on Reservations to Treaties Provisionally Adopted So Far by the Commission, Report of the International Law Commission on the Work of its Fifty-fifth Session, 58 U.N. GAOR Supp. No. 10, U.N. Doc. A/58/10, at 165 (2003).

[38] For discussions of interpretive declarations, see L.D.M. Nelson, Declarations, Statements and “Disguised Reservations” with Respect to the Convention on the Law of the Sea, 50 Int’l & Comp. L.Q. 767 (2001); George K. Walker, Professionals’ Definitions and States’ Interpretative Declarations (Understandings, Statements, or Declarations) for the 1982 Law of the Sea Convention, 21 Emory Int’l L. Rev. 461 (2007).

[39] The Advice and Consent Resolution was developed during the George W. Bush administration. It advances positions that other U.S. administrations consistently have supported, e.g., concerning the Convention’s freedom of navigation provisions as well as those concerning dispute settlement. See infra note 43-44 and accompanying text. Nevertheless, the attitude of the Bush administration concerning third-party dispute settlement differed in tone from that of the Clinton administration, which first proposed that the U.S. Senate give its advice and consent to the Convention after the United States signed the 1994 Part XI Implementation Agreement, supra note 2. For example, the Clinton administration’s report forwarding the Convention and the Part XI Agreement to the Senate highlighted that one of the “primary benefits” of the Convention was its dispute settlement provisions, which provide “mechanisms to enhance compliance by Parties with the Convention’s provisions.” S. Treaty Doc. No. 103-39, at iii-iv (1994). Bush administration officials, however, less forcefully noted the desirability of establishing additional methods of conflict resolution to complement U.S. diplomatic and operational challenges to excessive maritime claims of other states. See Treves, supra note 31, at 22-23.

[40] Advice and Consent Resolution, supra note 18, § 2(a)(A).

[41] LOS Convention, supra note 1, Annex VIII, arts. 2(3), 3(1).

[42] The award of any special arbitral tribunal, on issues that are not the subject of non-binding recommendations, will be legally binding. Id. Annex VIII, art. 4 (incorporating by reference Annex VII, Article 11). Nevertheless, the expertise of technical experts might lead a special arbitral tribunal to deemphasize essential legal components of a dispute. See D.H. Anderson, Legal Implications of the Entry into Force of the UN Convention on the Law of the Sea, 44 Int’l & Comp. L.Q. 313, 326 (1995).

[43] Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, Dec. 4, 1995, S. Treaty Doc. No. 104-24 (1996), 2167 U.N.T.S. 88 [hereinafter Fish Stocks Agreement]. The text of declarations is available at http://www.un.org/Depts/los/convention_agreements/fish_stocks_agreement_declarations.htm. The United States ratified the Fish Stocks Agreement in 1996 during the Clinton administration.

[44] S. Treaty Doc. No. 103-39, at ix-x (1994).

[45] Advice and Consent Resolution, supra note 18, § 2(1)(B).

[46] Furthermore, arbitration will of course be used if both parties have chosen arbitration under Article 287, or if both parties agree on arbitration pursuant to Article 280 or Article 282. But see also LOS Convention, supra note 1, arts. 290(5), 292 (providing for residual compulsory jurisdiction of the International Tribunal for the Law of the Sea with respect to requests for provisional measures and prompt release applications).

[47] Arbitration under Annex VII insures, for example, that the United States would choose one of the five decision makers in a case to which the United States is a party, and the process for selection of arbitrators also allows the two parties to a dispute to agree on three of the five arbitrators. Id. Annex VII, art. 3. See supra note 41 and accompanying text (noting that a party to a dispute before a special arbitral tribunal, the first U.S. option, may select two of five experts for the tribunal). Furthermore, in any proceeding before an arbitral tribunal, the U.S.-selected arbitrator would at least help insure that the U.S. legal position is fully understood by all members of the tribunal.

[48] Advice and Consent Resolution, supra note 18, § 3(17).

[49] Id. § 2(2). The Clinton administration recommended the same declaration. S. Treaty Doc. No. 103-39, at 84-85 (1994).

[50] See also Mark W. Janis, Dispute Settlement in the Law of the Sea Convention: The Military Activities Exception, 4 Ocean Dev’t & Int’l L. 51 (1977).

[51] Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.) (Merits), 1986 I.C.J. 14 (June 27); Oil Platforms (Iran v. U.S.) (Merits), 2003 I.C.J. 161 (Nov. 6). Also of note are the ICJ’s pronouncements concerning self-defense in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136 (July 9), 43 I.L.M. 1009, ¶ 138 (2004), and the condemnation of recourse to force in In re Guyana/Suriname ¶¶ 425-52 (Annex VII Arb. Tribunal, 2007), available at www.pca-cpa.org. For discussion of the different perceptions of the United States and the International Court of Justice concerning international law governing the use of force, see John E. Noyes, Unit Self-Defense at Sea: Views from the United States and the International Court of Justice, in The Exercise of Jurisdiction over Vessels: New Developments in the Fields of Pollution, Fisheries, Crimes at Sea and Trafficking of Weapons of Mass Destruction – Transatlantic Perspectives (Erik Franckx & Philippe Gautier eds., forthcoming).

[52] See 5 United Nations Law of the Sea: A Commentary ¶ 298.33 (Myron H. Nordquist ed.-in-chief, 1989). Article 302 of the Law of the Sea Convention, supra note 1, provides: “Without prejudice to the right of a State Party to resort to the procedures for the settlement of disputes provided for in this Convention, nothing in this Convention shall be deemed to require a State Party in the fulfillment of its obligations under this Convention, to supply information the disclosure of which is contrary to the essential interests of its security.”

[53] See 2 Shabtai Rosenne, The Law and Practice of the International Court 804-13 (4th ed. 2006); Ibrahim F. I. Shihata, The Power of the International Court to Determine its Own Jurisdiction: Compétence de la Compétence 24-30, 299 (1965) (noting a debate over whether arbitral tribunals must defer to a party’s decision concerning whether a dispute is related to a reserved subject matter; but also concluding that the ICJ has authority with respect to “both the interpretation of jurisdictional instructions and the determination of the nature of the controversy”). See also Yann-Huei Song, Declarations and Statements with Respect to the 1982 UNCLOS: Potential Legal Disputes between the United States and China after U.S. Accession to the Convention, 36 Ocean Dev’t & Int’l L. 261, 268 (2005). See generally A.E. Boyle, Problems of Compulsory Jurisdiction and the Settlement of Disputes relating to Straddling Fish Stocks, 14 Int’l J. Marine & Coastal L. 1, 16 (1999). If this U.S. declaration were an impermissible reservation, it could be disregarded, with the United States still being considered a party to the Convention. See Nelson, supra note 38, at 781-84.

[54] S. Exec. Rep. No. 110-9, at 11 (2007).

[55] Advice and Consent Resolution, supra note 18, § 3(5)(C).

[56] See Treves, supra note 31, at 25.

[57] (Emphasis added). Part XV’s Article 287(2) only refers to the Seabed Disputes Chamber, stating that the extent and manner of exercise of the jurisdiction of the Chamber is “provided for in Part XI, section 5.” (Emphasis added). According to Article 287(2), an Article 287(1) choice-of-procedure declaration “shall not affect or be affected by the obligation of a State Party to accept the jurisdiction” of the Chamber. Is it then plausible to maintain that the procedure of the Seabed Disputes Chamber is “provided for” in Part XV, section 2? Article 187, which is within Part XI, section 5 of the Law of the Sea Convention, concerns the jurisdiction of the Seabed Disputes Chamber, and thus does not appear to fall within the “provided for in [Part XV,] section 2” language of Article 298. Other Convention provisions, however, may point in the other direction. Article 186 provides that the establishment of the Chamber “and the manner in which it shall exercise its jurisdiction shall be governed by the provisions” not only of Part XI, section 5, but “of Part XV and of Annex VI.” Furthermore, according to Part XV’s Article 288(3), the Seabed Dispute Chamber “shall have jurisdiction” in accordance with Part XI, section 5; Article 288(3) might be read as “provid[ing] for” a procedure.

[58] “Activities in the Area” are limited to “all activities of exploration for, and exploitation of, the resources of the Area,” LOS Convention, supra note 1, art. 1(2), and “resources” are in turn defined as “all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed, including polymetallic nodules.” Id. art. 133(a).

[59] Fish Stocks Agreement, supra note 43, arts. 7, 30-31; Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, art. 31, Sept. 5, 2000, 40 I.L.M. 278 (2001). Several reasons may explain why the United States was untroubled by the dispute settlement provisions of the two fisheries conventions. First, any U.S. concerns with third-party dispute settlement may have appeared relatively insignificant compared with achieving important substantive ends via the two conventions. Second, most EEZ fisheries disputes probably would not be subject to third-party adjudication or arbitration, by virtue of Article 297 of the Law of the Sea Convention. See, e.g., Boyle, supra note 53, at 10-15, 19-24. Third, it may also be that, in contrast to the broader range of disputes that could arise under the Law of the Sea Convention, the United States regards potential disputes arising under the two fisheries conventions as asymmetric; i.e., the United States believes that it is unlikely to violate the fisheries conventions, and thus it would not be at risk of being a party to an arbitral or judicial proceeding. This factor may also explain why the United States has not opted out from the residual compulsory jurisdiction of ITLOS, applicable to provisional measures. See Fish Stocks Agreement, supra note 43, art. 31(3). Fourth, a particular concern of the United States is to shield itself from the jurisdiction of international tribunals in highly politicized cases, especially those involving the use of military force. The United States may regard it as unlikely that disputes arising under the fisheries conventions would be highly politicized, and in any event an international court or tribunal would lack jurisdiction over a dispute involving military activities or EEZ fisheries law enforcement activities. See LOS Convention, supra note 1, art. 298(1)(b). Cf. Fisheries Jurisdiction (Spain v. Can.) (Jurisdiction), 1998 I.C.J. 432 (Dec. 4).

[60] Noyes, U.S. Policy, supra note 8, at 622 (citing examples from congressional hearings); Bernard H. Oxman, Statement Before the S. Comm. on Foreign Relations, Oct. 4, 2007, at 10. See also Medellín v. Texas, 128 S. Ct. 1346, 1393-96 (App. B) (2008) (Breyer, J., dissenting) (listing examples of U.S. treaties in force containing compromissory clauses referring to the ICJ).

[61] Prepared Statement of John Norton Moore, in United Nations Convention on the Law of the Sea: Hearing Before the S. Comm. on Foreign Relations, 108th Cong. (2003), S. Exec. Rep. No. 108-10, at 53, 59 (2004).

[62] This focus is considerably narrower than would be a complete inquiry into the use of international law in the U.S. legal system. It is narrower because it examines how U.S. courts use treaties, rather than how domestic U.S. agencies and the President use treaties, and because it does not address sources of international law other than treaties. Furthermore, self-execution is only one of several legal doctrines that U.S. courts may consider in determining whether to apply a treaty. Other doctrines include, inter alia, the political question doctrine, the question whether a treaty creates private rights or provides for a private cause of action, and, in cases with significant foreign contacts, forum non conveniens.

[63] Foster & Elam v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829).

[64] U.S. Const. art. VI, cl. 2.

[65] See Carlos M. Vázquez, Foster v. Neilson and United States v. Percheman: Judicial Enforcement of Treaties, in International Law Stories 151 (John E. Noyes et al. eds., 2007). See also Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796) (opinion of Iredell, J., on Circuit).

[66] 128 S. Ct. 1346 (2008).

[67] The dissent in Medellín also argued that the Vienna Convention on Consular Relations itself could be self-executing. However, the majority found that an earlier Supreme Court decision, Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006), had held that state procedural default rules could preclude application of the Vienna Convention, which meant that “we need not consider whether Medellín was prejudiced in any way by the violation of his Vienna Convention Rights.” 128 S. Ct. at 1355 n.1.

[68] Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12 (Mar. 31).

[69] Id. at 72.

[70] 128 S. Ct. at 1357. The Court also found that a Presidential memorandum directing Texas courts to give effect to the Avena ruling was not legally binding on Texas courts. This article examines only the self-executing treaty issue.

[71] Id. at 1356.

[72] Id.

[73] Id. at 1356 n.2. It is not altogether clear whether the Court took the position that non-self-executing treaties do not constitute federal law at all; some passages suggest the more modest (and constitutionally defensible) position that non-self-executing treaties are federal law but are not justiciable in U.S. courts. The Senate Foreign Relations Committee has weighed in on this issue, attaching declarations to recent treaties stating that “[i]n accordance with the Constitution, all treaties – whether self-executing or not – are the supreme law of the land, and the President shall take care that they be faithfully executed” (quoted in Duncan Hollis, Medellin: The Senate Strikes Back, available at http://www.opiniojuris.org).

[74] That is, a treaty may be self-executing but may not create private rights. See 128 S. Ct. at 1357 n.3. Earlier U.S. cases and commentary had used the label non-self-executing to mean different things, including: 1) the parties (or U.S. treaty makers) intended not to make the treaty judicially enforceable; 2) the treaty obligation is not justiciable in U.S. court (because, e.g., of political question or standing difficulties); 3) the treaty makers lack the constitutional power to accomplish what they purport to accomplish; and 4) the treaty does not establish a private cause of action. See Carlos M. Vázquez, The Four Doctrines of Self-Executing Treaties, 89 Am. J. Int’l L. 695 (1995).

[75] “[T]he absence or presence of language in a treaty about a provision’s self-execution proves nothing at all. At best the Court is hunting the snark. At worst it erects legalistic hurdles that can threaten the application of provisions in many existing commercial and other treaties and make it more difficult to negotiate new ones.” 128 S. Ct. at 1381-82 (Breyer, J., dissenting). The dissent would have relied on several “practical, context-specific criteria,” to analyze whether treaties are self-executing. Id. at 1382. With respect to the treaty obligation to comply with the I.C.J.’s judgment in Avena, the dissent examined various factors –including the language of the treaty, whether U.S. judges are familiar with the type of issue at which a treaty provision is directed, the practical effects of concluding that a treaty was not self-executing, whether finding the treaty to be self-executing threatened conflict with other branches of government, and whether the political branches had expressed concern about direct judicial enforcement – and concluded that the Avena judgment should have been enforceable in U.S. court.

[76] See David J. Bederman, Medellín’s New Paradigm for Treaty Interpretation, 102 Am. J. Int’l L. 529 (2008).

[77] 128 S. Ct. at 1364-65. The dissent disputed the majority’s contention that its opinion could be limited to the particular treaties at issue in the case. See id. at 1387-88 (Breyer, J. dissenting). See also Roger P. Alford, Federal Courts, International Tribunals, and the Continuum of Deference, 43 Va. J. Int’l L. 675 (2003).

[78] 128 S. Ct. at 1361 n.9 (quoting Breard v. Greene, 523 U.S. 371, 375 (1998)). Furthermore, nothing in the Medellín opinion casts doubt on the traditional “Charming Betsy” principle, according to which U.S. courts will not construe an act of Congress so as “to violate the law of nations, if any other possible construction remains.” The Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804).

[79] Compare, e.g., Thomas Buergenthal, Modern Constitutions and Human Rights Treaties, 36 Colum. J. Transnat’l L. 211, 221-22 (1997) (questioning constitutionality of non-self-executing declarations), and Louis Henkin, U.S. Ratification of Human Rights Treaties: The Ghost of Senator Bricker, 89 Am. J. Int’l L. 341, 346-48 (1995) (same), with Curtis A. Bradley & Jack L. Goldsmith, Treaties, Human Rights, and Conditional Consent, 149 U. Pa. L. Rev. 399, 419-23, 446-51 (2000) (supporting constitutionality of non-self-executing declarations), and with David Sloss, Non-Self-Executing Treaties: Exposing a Constitutional Fallacy, 36 U.C. Davis L. Rev. 1, 39-44 (2002) (arguing that non-self-executing declarations may preclude new private causes of action, but may not constitutionally preclude criminal defendants from relying on treaty-based rights). The Supreme Court in Medellín did indicate that whether “the President and Senate intended for the agreement to have domestic effect” is significant in determining the self-executing status of a treaty, but linked those indications of intent to a treaty’s “textual provisions.” 128 S. Ct. at 1364.

[80] U.S. Const. art. VI, cl. 2. See also id. art. III, § 2 (federal judicial power extends to all cases arising under U.S. treaties).

[81] “The United States declares that, with the exception of articles 177-183, article 13 of Annex IV, and article 10 of Annex VI, the provisions of the Convention and the Agreement, including amendments thereto and rules, regulations, and procedures thereunder, are not self-executing.” Advice and Consent Resolution, supra note 18, § 3(24).

Several of the other understandings in the Resolution appear intended to avoid conflicts between Convention obligations and existing U.S. legislation and practice. For example, one understanding provides “that sections 6 and 7 of Part XII do not limit the authority of a State to impose penalties, monetary or non-monetary, for, inter alia . . . non-pollution offenses, such as false statements, obstruction of justice, and obstruction of government or judicial proceedings, wherever they occur.” Id. § 3(12). See United States v. Caribbean Cruises Ltd., 11 F. Supp. 2d 1358 (S.D. Fla. 1998) (Articles 218 and 228 of the LOS Convention – assuming arguendo that those articles had the status of customary international law – would not bar prosecution for making false statements concerning discharges, in violation of 18 U.S.C. § 1001). Other understandings also seem intended to preserve the flexibility of the United States to apply various criminal and administrative penalties. See, e.g., Advice and Consent Resolution, supra note 18, § 3(11)(A)-(B) (providing that Article 230 of the LOS Convention “applies only to natural persons aboard the foreign vessels at the time of the act of pollution” and that the Article’s “references to ‘monetary penalties only’ exclude only imprisonment and corporal punishment”).

[82] See Curtis A. Bradley, Intent, Presumptions, and Non-Self-Executing Treaties, 102 Am. J. Int’l L. 540, 543-45 (2008).

[83] E.g., United States v. Stuart, 489 U.S. 353 (1989).

[84] Before Medellín, lower courts regularly gave effect to Senate non-self-execution declarations. See, e.g., Guaylupo-Moya v. Gonzales, 423 F.3d 121, 137 (2d Cir. 2005).

[85] 128 S. Ct. at 1373 (Stevens, J., concurring).

[86] Advice and Consent Resolution, supra note 18, § 3(21).

[87] See Vázquez, supra note 74.

[88] See supra note 74 and accompanying text.

[89] 128 S. Ct. at 1357 (quoting Head Money Cases, 112 U.S. 580, 598 (1884)).

[90] Id. at 1360 (quoting ICJ Statute, art. 59) (emphasis added by Supreme Court).

[91] Id. at 1387 (Breyer, J., dissenting).

[92] See supra text following note 9.

[93] Id. at 1389 (Breyer, J., dissenting).

[94] Id. at 1391 (Breyer, J., dissenting).

[95] Id. at 1391-92 (Breyer, J., dissenting).

[96] The majority’s skepticism about the domestic enforceability of treaties also reflects historically resilient federalism concerns. If the President and the Senate (or the President alone) can make treaties that create binding law for individuals, without the participation of the House of Representatives, the influence of U.S. state perspectives (via representatives in the House) is reduced. See Mark W. Janis, Missouri v. Holland: Birds, Wars, and Rights, in International Law Stories, supra note 65, at 207.

[97] See 128 S. Ct. at 1360, 1364, 1367; id. at 1382-83, 1388-89 (Breyer, J., dissenting).

[98] See, e.g., Whitney v. Robertson, 124 U.S. 190 (1888).

[99] See, e.g., Janis, supra note 8, at 95-116; Noyes, Taft Arbitration Treaties, supra note 12.

[100] See supra notes 11-14 and accompanying text.

[101] Even if the United States were to maintain its Article 298 declaration, the United States still could find opportunities to use, or to threaten to use, international tribunals under the Law of the Sea Convention to challenge other illegal actions (not subject to Article 297 or 298) that have implications for U.S. interests. For example, challenging other states’ illegal straight baseline claims before a tribunal could help to publicize those claims and could complement, or serve as a peaceful substitute for, U.S. Freedom of Navigation Program challenges to such baselines.

[102] See, e.g., M/V Saiga (No. 2) (St. Vincent v. Guinea), 120 I.L.R. 143, ¶¶ 127, 131 (Int’l Trib. L. Sea, 1999) (emphasizing limited scope of coastal state jurisdiction in the EEZ).

[103] 128 S. Ct. at 1389 (Breyer, J., dissenting). See supra text accompanying note 93.

[104] Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 184-85 (U.S. Executive Branch interpretation of a treaty “is entitled to great weight”).

[105] See Sohn, U.S. Policy, supra note 20; John E. Noyes, Compulsory Third-Party Adjudication and the 1982 United Nations Convention on the Law of the Sea, 4 Conn. J. Int’l L. 675 (1989).

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Publicist

an online Publication of Berkeley Journal of International Law

03/31/2009

The United States and the Law of the Sea Convention: U.S. Views Concerning the Settlement of International Law Disputes in International Tribunals and U.S. Courts

I. U.S. Attitudes Towards International Law and Institutions

II. The United States, the Law of the Sea Convention, and International Third-Party Dispute Settlement

III. U.S. Domestic Litigation and the Law of the Sea Convention

IV. Critique of Restrictive U.S. Positions and Conclusion

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