U.S. POLICY AND THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA

George Washington International Law Review, The, 2007 by Noyes, John E

Convention supporters should also directly address U.S. skeptics' concern that the Convention represents a move toward multilateralism and greater roles for international institutions. The first and most basic response to this concern is that there really is no alternative to multilateralism with respect to rules for an international common space. A second response, and the tack adopted by the Bush administration and many other U.S. supporters of the Convention, has been to try to minimize the roles and significance of the three new, and now fully operational, institutions created by the Convention (the Commission on the Limits of the Continental Shelf (CLCS), the International Tribunal for the Law of the Sea (ITLOS), and the International Seabed Authority (ISA)).

The first of these institutions, the CLCS, has not been controversial in the United States. The CLCS is the technical body that reviews data in state submissions concerning the outer limits of the continental shelf beyond 200 miles from the baselines. Under the Convention, coastal states themselves still set those limits in accordance with the Convention, but only limits established "on the basis of CLCS recommendations are "final and binding."41 A CLCS recommendation is thus a precondition for assuring that the outer limits of a state's continental shelf beyond 200 miles from its baselines will be generally recognized.42 Determining final continental shelf boundaries is important for secure oil licenses, one reason why oil companies have supported U.S. acceptance of the Convention.43 U.S. accession to the Convention would also allow a U.S. member to be elected to the CLCS,44 a step that would give that member a role in determining the Commission's procedures, reviewing other states' submissions, and aiding the U.S. in formulating its own submissions to the CLCS.45 Furthermore, the breadth of a coastal state's continental shelf affects the extent of the oceans in which all states enjoy high seas freedoms free from coastal state interference. Overly expansive continental shelf claims could interfere with high seas freedoms. A coastal state's rights over its continental shelf "must not infringe or result in any unjustifiable interference with navigation and other rights and freedoms of other States as provided for in th[e] Convention,"46 but coastal state installations on the continental shelf could affect navigation to a limited degree, and coastal state actions could restrict the high seas freedom of marine scientific research.47 The work of the CLCS is thus important, but the Commission has not been controversial in the U.S. for several reasons: the CLCS is a technical rather than a policy-making body; U.S. acceptance of the Convention will allow it to obtain the benefit of determinate, generally recognized outer limits to its continental shelf; and U.S. membership on the Commission will allow increased oversight of other coastal states' submissions.

Although Convention critics may regard the CLCS as benign, the Convention's obligatory third-party dispute setdement system48 worries them. Any state's assessment of treaty provisions for formal third-party dispute setdement probably turns on four main factors: the independence of judges; which entities have access to the tribunal; whether the tribunal will have jurisdiction over sensitive disputes; and the dispute settlement forum's response mechanisms and enforcement capacity. The U.S. Convention critic raises questions on many of these fronts, and fears expensive, public litigation that could embarrass the U.S. or pressure it to modify its own policies or laws. The Bush administration and many other U.S. supporters of the Convention have not fully embraced its dispute settlement provisions. Instead, proponents of the Convention have made several defensive (or "reassuring") points about dispute setdement: only states, rather than individuals and non-governmental organizations, may invoke the Convention's Part XV dispute settlement mechanisms; the Convention emphasizes informal methods of dispute setdement;49 military and intelligence-gathering activities and other sensitive matters are exempt from the third-party dispute setdement provisions;50 compromissory clauses are not uncommon in other treaties to which the U.S. is a party.51 For matters that fall within the obligatory dispute settlement provisions of the Convention, the U.S. will choose arbitration or special arbitration, procedures that allow each party to a dispute to select a high percentage of the decision makers and that do not receive as much public attention as the ITLOS or the International Court of Justice.52 Decisions by Convention dispute setdement tribunals would not be enforceable in U.S. courts absent implementing U.S. legislation.53 The Convention's third-party dispute setdement provisions, in short, are often presented as troublesome features whose scope should be minimized.