UNCLOS and Dispute Settlement: A Response to Professor Rabkin

[John E. Noyes is the Roger J. Traynor Professor of Law at California Western School of Law.]

I do not share Professor Rabkin’s pessimistic view of the prospect of international arbitration of law of the sea disputes under the Law of the Sea Convention.  LOS Convention tribunals and the law of the sea experts who serve as judges and arbitrators have helped to resolve disputes peacefully and to reinforce Convention rules.  For example, in the merits stage of the M/V “Saiga” (No. 2) case, the International Tribunal for the Law of the Sea (ITLOS) – which had jurisdiction only because the countries involved specially agreed; arbitration would normally be the third-party forum – reaffirmed navigation rights in the exclusive economic zone (EEZ), in the face of a coastal state’s attempt to exercise creeping EEZ jurisdiction that was not permitted under the LOS Convention.  During the negotiation of the LOS Convention the United States supported compulsory third-party dispute settlement in large part because it could help reinforce Convention rules important to the United States.  Although the functions of international third-party compulsory dispute settlement treaty provisions and tribunals are nuanced and varied, we should not lose sight of the stabilizing role of the LOS Convention’s dispute settlement provisions.

The United States has already adopted the LOS Convention’s third-party dispute settlement system.  The widely accepted 1995 Fish Stocks Agreement incorporates this system.  In 1996 the U.S. Senate Foreign Relations Committee, at the time chaired by Republican Senator Jesse Helms, approved the Fish Stocks Agreement, the Senate gave its advice and consent, and the United States ratified it.  This country thus has found it advantageous to accept the LOS Convention’s third-party dispute settlement provisions in a treaty containing some broad commitments.  Professor Allen, in his post responding to Professor Rabkin, has highlighted other maritime treaties accepted by the United States that contain compulsory third-party dispute settlement provisions.  The United States is also a party to many non-law of the sea treaties – both trade treaties and treaties concerning a wide range of other matters – that provide for the jurisdiction of third-party tribunals.

Professor Rabkin raises the specter of the ITLOS, under the LOS Convention’s Article 292 prompt release mechanism, having “the last word on when we can seize vessels . . . even close to our shores” when vessels are engaged in such activities as drug smuggling or illegal immigration.  The ITLOS has no such authority under the Convention and does not assert such authority.  The United States proposed a prompt release mechanism during negotiation of the LOS Convention because other countries were detaining U.S. fishing vessels operating in those countries’ coastal fishing zones.  The United States wanted (and obtained, in Article 292) a narrow prompt release mechanism applicable to fishing vessels.  Under this mechanism, the ITLOS may order the release of a fishing vessel on the posting of a bond, so that the vessel can continue to operate while the coastal state considers the legality of the seizure and adjudicates alleged violations of the coastal state’s EEZ fishing laws.  Article 292 applies 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.”  Article 73(2), on enforcement of coastal state fishing rights, explicitly provides for the posting of a bond, and thus fits within the scope of the Article 292 prompt release mechanism (as do Articles 220(7) and 226(1)(b), which provide for bonds for vessels allegedly committing certain pollution violations).  But no LOS Convention articles relating to piracy, or drug smuggling, or illegal immigration, or many other crimes contain provisions for the posting of a bond.  Professor Rabkin refers to paragraphs 53-55 of the M/V “Saiga” prompt release case, the ITLOS’s first such case, in support of his concern about the Tribunal distorting Article 292.  But those paragraphs merely refer to an argument by one of the parties in that case urging a non-restrictive interpretation of Article 292.  In its decision, the ITLOS instead relied on the link between Articles 292 and 73.  Furthermore, all of the ITLOS’s later prompt release cases have involved vessels detained for violating coastal state EEZ fishing regulations.  The ITLOS has in its later cases been clear that it does not interpret Article 292 expansively (see, e.g., the “Camouco” (Panama v. France) case, ¶ 59, noting that Article 292 applies “only” in Article 73(2)-type situations, where the LOS Convention explicitly authorizes the posting of a bond).

The concern that the ITLOS in an Article 292 proceeding could “have the last word on when we can seize vessels engaged in crime, even close to our shores” is misplaced for another reason.  Article 292 does not authorize the ITLOS to rule in a prompt release procedure on the legality of the seizure of any vessel – even a fishing vessel – since Article 292 just provides a bond mechanism directed at releases from detention of a narrow category of vessels.  The ITLOS has repeatedly emphasized that it lacks authority in its prompt release cases to rule on the legality of any vessel seizures.  The ITLOS’s prompt release decisions reinforce the text of the LOS Convention – in these decisions, the text of Article 292, a provision that the United States promoted in LOS Convention negotiations – rather than distorting the text.

The debate over whether it is appropriate for the United States to accept the jurisdiction of international courts and tribunals has being going on in the United States for well over a century.  There is a middle ground between, on the one hand, completely rejecting the jurisdiction of international third-party tribunals and the benefits they provide and, on the other hand, accepting unqualified compulsory dispute settlement commitments.  That middle ground, reflected in the LOS Convention, is to limit the jurisdiction of third-party tribunals and to exempt sensitive disputes from the scope of third-party dispute settlement.  Professor Rabkin notes one limit:  the LOS Convention exempts military activities from third-party procedures.  According to U.S. military leaders, U.S. security needs are furthered by U.S. accession to the LOS Convention, and any concerns about its dispute settlement provisions do not outweigh the national security benefits of U.S. accession.  The scope of third-party dispute settlement under the LOS Convention is also limited in several other ways.  Under Part XV of the Convention, third-party tribunals cannot exercise jurisdiction over any cases in which individuals are parties, and cannot exercise jurisdiction with respect to disputes involving non-Convention issues (Article 288(1)).  Interstate arbitration is also precluded when states want to settle a dispute by using alternative (including less formal) means.  Furthermore, military activities are only one category of sensitive interstate disputes that the Convention exempts from arbitration.  For example, the United States may declare that any dispute on the agenda of the UN Security Council, where the United States is a permanent member, is exempt from third-party dispute settlement under the LOS Convention (Article 298(1)(c)).

The LOS Convention’s third-party dispute settlement provisions, which U.S. negotiators pushed to include in the Convention during the negotiations, have to date served, and will likely often continue to serve, to resolve disputes peacefully.  Those provisions can reaffirm and reinforce Convention norms and contribute to the stability of the rule of law for the oceans that U.S. military, business, and government leaders have long supported.