Abstract
It is not possible for me to convey to you fully my sense of personal and professional honor at being invited to participate in this symposium in remembrance of Professor Louis Sohn. Louis Sohn and I first had the opportunity to work closely together when he, the late John R. Stevenson, then Legal Adviser of the Department of State, and I began to formulate the position of the United States with respect to the settlement of disputes in connection with the negotiation of a new Convention on the Law of the Sea (Convention). When John Stevenson and I first elaborated on U.S. views regarding preparations for the Third U.N. Conference on the Law of the Sea in the American Journal of International Law, we took the then-unprecedented step of indicating not only that the United States would seek a system of compulsory and binding third-party dispute settlement as an integral part of any new convention but also that the utility of any such convention was in significant measure linked to the inclusion of a compulsory dispute settlement system.1 This suggests an appropriate perspective on the topic suggested by Sean Murphy for my remarks today, namely whether the dispute settlement system is working. For in significant measure, this question affords us a seamless transition from the first panel this morning, which addressed a similar question with respect to the Convention as a whole. To determine whether the dispute settlement system is working, we must consider its objectives, and those objectives include but are not necessarily limited to the overall goals of the Convention as a whole. In this regard, we might consider that the dispute settlement system set forth in the Convention functions simultaneously as part; of two regimes. The first regime, which explains its very existence, is the regime for the oceans. That regime is established by a very widely ratified Convention that emerged from the political cauldron of decades of international negotiation and constitutional processes that would be difficult to duplicate. Viewed in that context, the dispute settlement system is part and parcel of a much larger system of treaty obligations expressly assumed by the parties to the Convention in their own interest and in the general interest. The second regime, which transcends that Convention, is the broader regime for the settlement of international disputes. In this respect, it is useful to recall two central points about that broader regime: first, states continue to adhere to the position that express consent is required to afford jurisdiction to an international tribunal; second, the majority of states have not accepted compulsory arbitration or adjudication of all or even most international legal disputes, including some of the most intractable. Let me try to orient the Convention's dispute settlement system within that broader regime for the settlement of disputes. What is noteworthy about the Convention is not that it contains exceptions to compulsory jurisdiction; that is to be expected given the fact that the default position in international law is no compulsory jurisdiction at all. What is noteworthy about the Convention is that it reverses the default position that characterizes the general international regime of dispute settlement: compulsory arbitration and adjudication are accepted by the parties to the Convention as the norm, on condition of important limitations and exceptions without which this could not have been achieved and, in my view, could not be sustained even now. This nuanced relationship between rule and exception is evident from the structure of Part XV of the Convention. Article 286 is the very first article of section 2 on compulsory settlement of disputes. It provides: "Subject to section 3, any dispute concerning the interpretation or application of this Convention shall, where no settlement has been reached by recourse to section 1, be submitted at the request of any party to the dispute to the court or tribunal having jurisdiction under this section. …