Will Compulsory Dispute Settlement Sink the LOS Convention in the Senate?

[Craig H. Allen is the Judson Falknor Professor of Law at the University of Washington School of Law in Seattle.]

Let me again thank Opinio Juris for hosting this exchange of views on the Law of the Sea Convention and Julian for his timely efforts in facilitating the exchange.  The other four contributors each raise important considerations that warrant serious attention and critical assessment by the SFRC in the coming months. With Julian’s permission, I’d like to briefly respond to two points concerning the Convention’s ECS revenue sharing and CDS provisions, with particular attention to the latter.

Extended Continental Shelf Revenue Sharing: It has long been apparent that views differ on the requirement for revenue sharing for non-living natural resource extractions from the extended continental shelf (ECS) under Article 82 of the LOSC. For some, the requirement to share up to 7% of the revenues outweighs the Convention benefits.  In weighing the potential long-term cost to the U.S. of that revenue sharing provision (which, as Mr. Groves correctly notes, cannot now be accurately determined), I believe it’s important to view it in the historical context of the seaward march of continental shelf claims since 1945.  As coastal state claims expanded from 3 miles to the 100 fathom (600 ft) isobath under the statement accompanying the 1945 Truman Proclamation (an area Truman asserted comprised only 750,000 square miles—roughly one-fifth the size of the U.S. EEZ today), to the 200 meter isobath (or limits of exploitability) under the 1958 Convention on the Continental Shelf and to the present formula extending up to 350 miles seaward of the baseline or 100 miles seaward of the 2500 meter isobath, that expansion has come at the expense of the deep seabed beneath the high seas common to all states.  Whether 67 senators will conclude that sharing up to 7% of the revenue from ECS mineral extractions is too high a price to pay for the certainty provided by a binding decision of the Commission on the Limits of the Continental Shelf—particularly with respect to claims among the contiguous Arctic states—and a reasonable concession for extending the juridical shelf well beyond the original Truman declaration remains to be seen.

Compulsory Dispute Settlement:  Professor Rabkin has articulated several concerns regarding the Convention’s compulsory dispute settlement (CDS) provisions.  While I disagree with some of his views on the potential effect of an arbitration decision and question the fit of his ICC analogy to the LOSC, he is not alone in his concerns.  As with the ECS revenue sharing issue, the question remains how many senators are likely to agree to compulsory dispute settlement on LOSC issues.  How many will accept the burdens—and the benefits—of CDS if the other treaty benefits are significant?

I don’t claim any unique insight into how the senate will view the Convention’s CDS provisions. It might be useful, however, to examine the senate’s views on CDS requirements in other maritime treaties, which arguably provide a better analogy to the LOSC than the Rome Statute. This brief table (compiled somewhat hastily) might serve as a useful starting point.

With respect to the 1988 SUA Convention, in its advice and consent to the SUA Convention’s 2005 Protocol, I believe the senate attached a reservation rejecting CDS (see S. Exec. Rept. 110-25).

Two other data points to be considered relate to the International Court of Justice. As this audience knows, in 1985 the U.S. revoked its 1946 optional clause declaration filed under Article 36(2) of the Statute of the ICJ (subject to the Connally and Vandenberg Reservations).  And on March 7, 2005, shortly after the ICJ issued its judgment in the Avena case, the U.S. revoked its consent to CDS under the Convention on Consular Relations (by my last count, only 48 of the 178 CCR parties have accepted CDS).  It should be noted that both actions were taken by the president, not the senate.  It should also be noted that, whatever the views on the ICJ, the draft SFRC declarations in 2004 and 2007 recommend general or special arbitration, not the ICJ, for disputes under the LOSC.

With respect to the argument that the ITLOS might insert itself into a WMD-smuggling terrorist interdiction action by the US by invoking the Convention’s “prompt release” provisions for vessels and crews, I believe it’s clear that Article 292 only applies when the detaining state has not complied with a provision in the Convention requiring prompt release.  Those provisions are found in the EEZ living marine resources and Marine Environmental Protection provisions (Articles 73(2), 220(6),(7) and 226(1)(b)), where the coastal state is limited to “monetary penalties” (Articles 73(3) and 230) and the enforcing state is entitled to require the detained vessel to post reasonable security.  The 1997 ITLOS decision in the M/V Saiga case is not to the contrary.  While the tribunal majority briefly opined that it seemed “strange” that a prompt release action might not be available in cases where detention of the vessel is not permitted by the Convention (para. 53), it ultimately based its decision on Article 73, not an expansive view of Article 292.  I read Article 113(1) of the 2009 Rules of the Tribunal as confirming this limited scope.

Comparing senate actions spanning more than 50 years and across different maritime subjects is admittedly of only limited utility. I also acknowledge that I have not directly addressed US and senate views on compulsory arbitration as an alternative to adjudication (perhaps other OJ readers have done research into senate attitudes toward international arbitration on maritime law issues).  The Minority Views in the SFRC’s 2007 report on the Convention (S. Exec. Rept. 110–9, at 26) reflect a concern with how the fifth arbitrator will be chosen if the disputing parties cannot agree (after they each choose their two arbitrators).  The Minority Views also singled out the ITLOS decision on Ireland’s request for provisional measures in the MOX Plant case (pending constitution of the Annex VII arbitration panel) and argue that, in the Minority’s view, “There is almost no limit to what any smart international lawyer could do with these pollution provisions.”

In the end, I offer no prediction on how the senators of the 112^th Congress will decide.  I do, however, agree with Julian in his opening assessment that the LOSC “has become a symbol in the United States of the promise and perils of joining a global governance regime” and echo his hope that we can “improve upon what has so far been a very disappointing public debate on this topic.”  The views presented by the other four distinguished and thoughtful participants Julian recruited for this on-line debate are certainly a good start.