International Disputes

An international or territorial dispute is a disagreement over the rights of two or more states with regard to control of a given piece of land. International disputes find their roots in a number of issues including natural resources, ethnic or religious demography, and even ambiguous treaties. When left unchecked, international disputes have caused criminal actions, terrorism, wars, and even genocide—all in the name of reasserting rights over territory. The UN Charter in no way allows states to use force to annex territory from any other state: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”

Arbitration can be made an appropriate international dispute settlement mechanism for international disputes when arbitration agreements are carefully drafted. Arbitration is especially valuable in contract disputes between a private company located in a Western nation and a government agency or government-controlled company in a developing state as well as in the framework of East-West trade agreements. Parties to international contracts often favor arbitration because compared to litigation they believe it is inexpensive, rapid, informal, generative of consensus, and a means of minimizing or avoiding the need for lawyers. These advantages are partially attainable through the careful structuring of the arbitration agreement, but without the proper agreement they can prove illusory.

If the advantages of arbitration are to be achieved, the drafter of an arbitration clause must be particularly aware of the role of law in arbitration. At its inception, arbitration depends on statutory approval; the arbitral award often must be converted into a judgment for enforcement purposes. Also, throughout the arbitration process, the law intervenes (a factor which a good draftsman of an arbitration agreement should bear in mind). The drafter of an arbitration agreement must also take into account the rules for contesting the validity of an arbitral award in the jurisdiction in which the dispute is heard. Generally, parties to an international contract should not opt for arbitration in the event of a dispute without careful consideration of the reasons for its ues and the thoughtful, precise drafting of the arbitration agreement.

China places restrictions on the rights of foreign warships to exercise innocent passage of territorial waters, claims extensive sovereignty in its Exclusive Economic Zone (EEZ), and has made maritime claims citing historic waters. China asserts that these actions are consistent with the provisions of the United Nations Convention On The Law Of the Sea (UNCLOS) Treaty. The United States does not recognize China's claims and restrictions encroach upon U.S. national rights and interfere with the ability of the theater Combatant Commander PACOM to employ forces in the Western Pacific littoral. PACOM must continue to conduct FON operations to assert U.S. claims while engaging regional partners such as Japan. The U.S. must assist in developing workable solutions to South China Sea maritime disputes that are consistent with U.S. interests.

Some of the claims made by coastal nations are inconsistent with international law. The United States does not recognize those maritime claims that are not in conformity with customary international law, as reflected in the 1982 United Nations Law of the Sea Convention. Examples include excessive straight baseline claims, territorial sea claims in excess of 12 nautical miles (nm), and other claims that unlawfully impede freedom of navigation and overflight. The United States has protested excessive claims and conducted operational assertions against such excessive claims under the Freedom of Navigation Program.

The U.S. Freedom of Navigation (FON) Program began in 1979 and is designed to be a peaceful exercise of the rights and freedoms of navigation and overflight recognized under international law. United States policy is to accept and act in accordance with the balance of interests relating to traditional uses of theoceans--such as navigation and overflight. In this respect, the United States l recognizes the rights of other states in the waters off their coasts, as reflected in the Convention, so long as the rights and freedoms of the United States and others under international law are recognized by such coastal states. In addition, United States policy is to exercise and assert its navigation and overflight rights and freedoms on a worldwide basis in a manner that is consistent with the balance of interests reflected in the convention. The United States will not, however, acquiesce in unilateral acts of other states designed to restrict the rights and freedoms of the international community in navigation and overflight and other related high seas uses.

Although some US operations receive public scrutiny (such as those that have occurred in the Black Sea, in the Gulf of Sidra, and in the South China Sea), most do not. Since 1979, U.S. military ships and aircraft have exercised their rights and freedoms in all oceans against objectionable claims of more than 35 countries at the rate of some 30-40 per year.