UNCLOS and The Risks of Compulsory Arbitration

 [Jeremy Rabkin is Professor of Law at George Mason University School of Law.]

I entirely accept what James Kraska says about the benefits of the navigation rules in UNCLOS.  But when Kraska and others say these rules are favorable, they mean the UNCLOS rules – as American officials would interpret them.  Unfortunately, UNCLOS doesn’t leave it up to American officials to interpret these rules.  When there are disputes, the treaty provides that they will be settled by compulsory arbitration.

So we need to think about the ways international arbitration panels might interpret – or as it may be, twist and distort – these rules.  Projecting what international arbitrators will do in future disputes is as much a question of international politics as of settled treaty law.   It’s not enough to say that legal analysts for the Navy (or the Coast Guard) could interpret them in reasonable ways.  They won’t be in charge of the arbitration panels.

To grasp the point, think for a moment about the International Criminal Court.   The crimes set out in the Rome Statute are taken, word for word, from treaties which the United States has already ratified or which it already regards (for the most part) as restatements of customary international law.   The ICC is also bound by procedural rules and a regulation on Elements of Crimes, which American military lawyers say addresses most American concerns about potential prosecutorial abuses.  Nonetheless, no president, no presidential candidate, no secretary of state has recommended that the U.S. join the ICC.   We don’t so much dislike the substantive provisions of the ICC’s code.  We just don’t trust an international tribunal to have the last word in judging American military conduct.

I don’t see why we should have more confidence in the arbitration scheme established UNCLOS.   Some of the most obvious contrasts actually tell in favor of the ICC.  The ICC is still struggling to establish its authority, so our standing aloof might seem to undermine international respect for the laws of armed conflict.  But almost all coastal states have now ratified UNCLOS, so its norms might now seem well established without our own submission to its arbitration requirements.  The Rome Statute is focused almost entirely on armed conflict or acts of direct violence.   UNCLOS wanders into a vast range of peripheral issues, touching environmental precautions, conservation of marine resources, scientific research on the seas, submarine communication cables — as well as surface navigation.  And all these issues may generate disputes which get dragged into international arbitration, with unfavorable results for our naval operations.

A final contrast is probably the most important:   The United States worries about ICC interpretations of LOAC but so do dozens of other countries engaged (or potentially engaged) in combat operations.   When it comes to naval action, the United States is altogether unique in the scale of its naval capacity and in the world-wide scope of its naval presence.   The United States has more aircraft carriers, for example, than all other nations of the world put together.  When it comes to maritime disputes, the odds are that much greater that international arbitrators will be biased against (or at least, unsympathetic toward) American priorities.   Given today’s naval balance, American priorities will often be in a special class but we cannot expect international arbitrators to sympathize with our exceptional needs.

It is true that UNCLOS has a provision allowing states to exclude “disputes concerning military activities” from its overall requirements for compulsory arbitration.   (Art. 298, Par. 1b)  The Senate resolution on consent to ratification (at least the one prepared some years ago) insisted that “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.”

But a unilateral declaration of this kind is not binding on an arbitration panel.   UNCLOS does not say the scope of the exemption is to be determined by each state.  Arbitrators will doubtless feel some incentive to demonstrate their independence by disregarding American claims.  “Military activities” might well be interpreted to mean only actual combat operations – as opposed to claims about surveillance rights or “innocent passage” when there is no immediate conflict.  “Military activities” might certainly be read to exclude disputes about unarmed “research” vessels, even when operated by the Navy (which have already been the subject of disputes between the United States and China).

It is also true that UNCLOS does not require states to submit disputes to its standing judicial forum, the International Tribunal for the Law of the Sea (ITLOS).  But the alternatives it provides (Art. 287) are not much more attractive.   States may opt (under Annex VII) for an ad hoc arbitration panel, but if the disputing states can’t agree on the composition of the panel, arbitrators can be chosen for them by the President of ITLOS.  The other alternative (under Annex VIII) would leave the ultimate choice of arbitrators (when the disputing states can’t agree) to the Secretary General of the United Nations.  Or states can take their dispute to the International Court of Justice.  I would not trust a sensitive dispute about our naval operations to any of these forums.

On one issue, UNCLOS allows direct appeal to ITLOS in all circumstances.  If a signatory state “detains” a foreign vessel, the flag state – or the owners of the vessel – can appeal to ITLOS for “prompt release.”  (Art. 292)  The wording of the provision seems to have in mind only detentions for violations of fishing regulations – since it refers to cases where “the detaining state has not complied with the provisions of this Convention for prompt release of the vessel or its crew upon the posting of a reasonable bond” and the only such “provision” in the Convention concerns violations of fishing regulations in the EEZ (Art 73).  In its very first ruling, however, ITLOS entertained the argument that it might have authority to order prompt release for any ship detained for any reason – over the dissenting opinions (on this very issue, among others) by judges from western countries.  (M/V “Saiga” Case, St. Vincent and the Grenadines v. Guinea, Par. 53-55).  In subsequent cases, ITLOS has almost always sided with appeals for prompt release, though often with similar protests from western judges.   If you worry about terrorists taking to the seas to smuggle weapons or threaten ocean traffic, you ought to worry about letting ITLOS have the last word on when we can seize vessels engaged in crime, even close to our shores.

We don’t, in general, trust compulsory arbitration schemes, particularly when it comes to multi-lateral treaties with many entangled interests.   When the United States agreed to compulsory jurisdiction of the ICJ in 1945, the Senate stipulated that its consent did not extend to multilateral treaties.   The ICJ readily circumvented this limitation in the suit by Nicaragua in 1986, holding that claims under the UN Charter (and various LOAC treaties) could be adjudicated on the basis of customary law.  The Reagan administration then withdrew U.S. consent to compulsory jurisdiction.  There is almost no area where we still obligate ourselves to submit to arbitration, except for trade agreements.

One could argue that compulsory arbitration does not have a bad record with trade disputes.   I agree that NAFTA and the WTO have, on balance, been good for the United States.   But we ought to be more cautious about risks to our national security than risks to our trade policy.  Most of our trade disputes involve partners who have similar concerns as trading nations.  Any trade ruling that hurts the United States would be likely to impose much harm on others, as well.   I do not see that there is a comparable range of nations supportive of U.S. navigation policies, not at least where they affect naval operations in distant waters.

Finally, we ought to keep in mind that we don’t now have a full understanding of all the issues that may have indirect effects on naval tactics.  When environmentalists charged that Navy sonar drills were hazardous to dolphins, lower courts thought it proper to impose a restrictive injunction on such drills.  The Supreme Court held for the Navy – by a one vote margin. (Winter v. NRDC, 555 U.S. 7, 2008) Would we expect equal sympathy from an international arbitration panel selected, as it might be, by the UN Secretary General?   If the Supreme Court had gone the other way, Congress could have rescued the Navy by amending the relevant U.S. statutes.   If an international arbitration goes against us, will we have any realistic chance to solve the problem by amending the treaty?  That requires at least a two-thirds majority of member states (Art. 316) and has never been accomplished since the treaty went into effect, nearly twenty years ago.  Would we withdraw from the treaty?  Just from one adverse ruling?

I grant that there may be benefits from the treaty but the most crucial benefits, those that James Kraska emphasizes, concern navigation rules that are already part of customary international law.   I grant Craig Allen’s point, that customary law may evolve in ways we don’t like.  But that is also true of treaty law.  But customary law can’t bind us without our consent, whereas changes in the treaty, introduced by arbitration panels, will bind us if we are parties to the treaty.  Nor is it certain that treaty participation will bind others.  Some countries (notably China) are already violating navigation rules as we understand them and we have no reason for confidence that arbitrators will prefer a confrontation with China or other outliers rather than playing to the galleries by rebuffing the world’s largest navy.  If treaty advocates can’t give a convincing assurance against the risks of international arbitration, we ought to reject the treaty.