International Tribunal for the Law of the Sea

Jack Goldsmith and Jeremy Rabkin have an op ed in Monday's Washington Post arguing that the United States should not ratify the United Nations Convention on the Law of the Sea. As noted in several previous posts, the Convention has been endorsed by  President Bush , the Department of Defense, the State Department, the private sector, and the entire Senate Foreign Relations Committee. Hardly any other treaty has had such support in U.S. history. How is it possible to oppose such treaty? Goldsmith and Rabkin pose a hypothetical:

Suppose the United States seizes a vessel it suspects of shipping dual-use items that might be utilized to build weapons of mass destruction or other tools of terrorism. It's not a wild supposition. Under the Proliferation Security Initiative, the United States has since 2003 secured proliferation-related high-seas interdiction agreements with countries such as Belize and Panama, which provide registration for much international shipping. If the United States ratifies the Convention on the Law of the Sea, the legality of such seizures will, depending on the circumstances, be left to the decision of one of two international tribunals.

The first is the International Tribunal for the Law of the Sea, based in Hamburg. Some members of the Hamburg tribunal come from countries naturally suspicious of American power, such as China and Russia. Others are not allied with the United States. Even judges from Europe and South America do not always see things the way U.S. military authorities do.

The second institution is a five-person international arbitration panel. The United States and the flag state of the seized ship would have input into the selection of some of these arbitrators. But the U.N.Hamburg tribunal would select the crucial fifth arbitrator when, as would typically be the case, the state parties cannot agree. They must choose from a list of "experts" to which every state party to the convention -- not just China and Russia but other unfriendly nations such as Cuba and Burma -- can contribute. secretary general or the president of the

At minimum, these tribunals would pose awkward questions to the United States about the evidence behind a seizure, how we gathered it and who vouches for the information. At worst they would follow the recent example of the International Court of Justice and use a legal dispute to score points against American "unilateralism" and "arrogance" for a global audience keen to humble the United States. In every case, a majority of non-American judges would decide whether the U.S. Navy can seize a ship that it believes is carrying terrorist operatives or supplies for terrorists.

It's true that the convention exempts "military activities" from the tribunals' jurisdiction, but it does not define the term. The executive branch, worried about this ambiguity, has proposed a condition to ratification that would allow the United States to define the exemption for itself. But this condition amounts to a "reservation" disallowed by the treaty. International tribunals would still have the last word on the validity of the U.S. condition and the resulting scope of permissible U.S. naval actions.

This last paragraph hits at the problem. The Convention does exempt "military activities." Here is what  Article 298 says:

1. When signing, ratifying or acceding to this Convention or at any time thereafter, a State may, without prejudice to the obligations arising under section 1, declare in writing that it does not accept any one or more of the procedures provided for in section 2 with respect to one or more of the following categories of disputes:

*     *     *

d) disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service, and disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction excluded from the jurisdiction of a court or tribunal under article 297, paragraph 2 or 3.

While Administration witnesses that testified before the Senate Foreign Relations Committee in 2003 in support of the Convention recognized the "military activities" issue, the concluded that it was manageable.  Mark Esper, Deputy Assistant Secretary for Negotiations Policy in the Department of Defense noted that

the Administration closely examined the Convention, its negotiating history, and the practices of the tribunals constituted under the Convention.  Based on this examination, the Administration believes that it is clear that whether an activity is “military” is for each State Party to determine for itself.  Indeed, having the ability to determine what is a “military activity” involves vital national security interests that are critical to our ability to defend the Nation, protect our forces overseas, safeguard our interests abroad, and assist our friends and allies in times of need.  

And, Esper indicated:

With respect to the particular category of disputes concerning military activities, the Administration further recommends that the U.S. declaration make clear that its consent to accession to the Convention is conditioned upon the understanding that each Party has the exclusive right to determine which of its activities are “military activities” and that such determinations are not subject to review.

While Goldsmith and Rabkin suggest that such condition would amount to an impermissible reservation, I am not so sure. Since states are making declarations under Art. 298(1)(d) to exclude certain items from the jurisdiction of the court or tribunal, it would seem reasonable that they could clarify that declaration. (And I guess if in the worst case scenario, a tribunal ruled that the such declaration was a "reservation," and thus impermissible, the U.S. would then simply cease to be a party to the Convention and would thus not be subject to a ruling that would reject our understanding of military activities.)

But even without any clarification, I think the intent of the military activities exemption is clear. It seems highly unlikely that there would be any adjudication of a case where the United States claimed that it was engaged in military activities. Is it possible that such adjudication could take place? Of course, any thing is possible.  But it seems remote.

If the United States is looking for a perfect treaty, it will never find it. But if we are looking for an extraordinarily good treaty that will support both American foreign policy goals and global interests, we need look no further than the United Nations Convention on the Law of the Sea.