Saturday, July 14, 2007
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Calling all international lawyers!
As a general rule, international law (IL) scholars don't get a lot of love from international relations (IR) scholars. IR types tend to think that IL people hold naive and unsubstantiated views about the power of global rules to compel governments into certain forms of behavior. In turn, IL types tend to look askance at us IR types, convinced that because we do not hold international law in such high esteem, at any moment we will bully them, beat them up, and hog the best hors d'oeuvres at all the good conferences (this last accusation carries a ring of truth).
Nevertheless, there are moments when us IR types need to confess that we're not entirely sure why states are behaving in a certain way, and turn to IL types for support. This is one of those times: why, suddenly, is the Bush adfministration so gung-ho about ratifying the Law of the Sea Convention?
This treaty was negotiated during the seventies and completed in 1983. The Reagan administration rejected ratification at the time because of disputes over seabed mining that appear to have been hashed out. The U.S. essentially honors 99% of the treaty anyway, but only now has there been any momentum to formally ratify the treaty.
Vern Clark and Thomas Pickering have an op-ed in the New York Times today making this case for ratification:
The treaty provides our military the rights of navigation, by water and by air, to take our forces wherever they must go, whenever it is necessary to do so. Our ships — including vessels that carry more than 90 percent of the logistic and other support for our troops overseas — are given the right of innocent passage through the territorial seas of other states. In addition, the treaty permits American warships to board stateless vessels on the high seas.This is pretty much the official Bush administration position as well. Deputy Secretary of State John Negroponte and Deputy Secretary of Defense Gordon England also add an additional reason:
Accession makes sense from the perspective of U.S. leadership on the world stage. Joining the convention would give the nation a seat at the table, a voice in the debates, to help shape the future development of oceans law, policy and practice. Accession would also give the United States better opportunities to keep a close watch on other nations' efforts to exercise their rights under the law of the sea and to counter excessive claims if necessary.So far, so good. Except that earlier this month, Jack Goldsmith and Jeremy Rabkin argued in the Washington Post that this treaty would actually hinder WMD interdiction efforts:
The Bush administration is urging the Senate to consent this summer to the Convention on the Law of the Sea, the complex and sprawling treaty that governs shipping, navigation, mining, fishing and other ocean activities. This is a major departure from the administration's usual stance toward international organizations that have the capacity to restrain U.S. sovereignty. And it comes in a surprising context, since the convention has disturbing implications for our fight against terrorists....Over at Opinio Juris, Peter Spiro pours a lot of cold water onto Goldsmith and Rabkin's argument. Spiro may be right that Goldsmith and Rabkin are overhyping the threat from international tribunals. However, I do know the following is true:
1) The PSI is a linchpin for the Bush administration's anti-proliferation policies;In this administration's balance sheet, it's always been willing to jettison international legal strictures even if it theoretically constrains U.S. freedom of action.
So, my question -- why is the Bush administration suddenly so gung-ho about ratifying the Law of the Sea treaty? Is there a hidden quid pro quo that I'm missing? Is this strictly a PR stunt where the Bush administration can claim it's multilateral? Am I simply overstating the treaty's constraints on PSI? What gives?
UPDATE: Chris Borgen misinterprets this post a little. I'm not stating that the costs of ratifying the LOS outweigh the benefits (to me it really does depend on how much, if at all, LOS constrains PSI). I'm saying that by revealed preference, I would have expected the Bush administration to have made this calculation.
And yet they didn't. Why?
ANOTHER UPDATE: Thanks to alert reader S.B., who e-mail a Reuters story suggesting one additional benefit for LOS ratification:
Canada will buy at least six patrol ships to assert its sovereignty claim in the Arctic, but Prime Minister Stephen Harper backed away on Monday from an election pledge for navy icebreakers that would ply the waters of the Northwest Passage all year....posted by Dan on 07.14.07 at 08:57 AM
I'm a little surprised at the Bush Administration's emphasis and not entirely sold by the Times op-ed. There is this tribunal with nothing to do, staffed by 20 judges we didn't pick, thinking probably about how to make the tribunal important and lasting. Peter Spiro's right to think that this wouldn't likely lead to decisions where the US then has to pull out of the treaty, but...
Rabkin and Goldsmith are also mysterious. I don't see how the military exception doesn't solve their problem with naval interdictions ending up in court. If you don't trust international tribunals at all, just say so. But that's a lot of distrust. As any investment treaty reader can tell you, we certainly have nothing against tribunals per se.
I suspect that the reason international lawyers and the foreign policy establishment so wants ratification is that it is our treaty, negotiated in a way very favorable to us - and we haven't lived up to our end of the bargain by ratifying it.
Long comment, sorry.posted by: David Zaring on 07.14.07 at 08:57 AM [permalink]
Not only does the treaty contain a military reservation, but the issue before the Senate is consent subject to a conditional interpretation that the military exception is self-judging. To translate into layspeak, the United States has established a solid basis for maintaining that any tribunal decision purporting to interpret the military exception is illegitimate, not because it would be wrong on the merits but because the tribunal would not have jurisdiction to make the call. Rabkin incorrectly characterizes this as a forbidden reservation, but international law clearly distinguishes between reservations and conditional interpretations (OK, only a lawyer could appreciate this point) and both the US Department of Justice and the Senate Foreign Relations Committee embraced this argument with respect to the proposed conditional interpretation. Bottom line: If the firewalls built around the tribunal aren't good enough here, they aren't good enough anywhere (WTO, NAFTA, IBTs).posted by: Paul Stephan on 07.14.07 at 08:57 AM [permalink]
Is it possible that the Bush Administration has changed its preferences in recognition of IL's bite, after having gotten burned so many times now? Or perhaps another route to the same result: the relative bureaucratic weight of agencies favoring IL has risen relative to those opposing it, in the wake of multiple policy disasters sponsored by the latter. (As for the hors d'oeuvres, is that a concession that IL scholars have better manners than our IR counterparts?)posted by: Peter Spiro on 07.14.07 at 08:57 AM [permalink]
For background reading on the treats to navigational freedoms from coastal encroachment both in distance and in degree of control I recommend Bernard Oxman, "The Territorial Temptation: A Siren Song at Sea"" in the AJIL, Volume 100, October 2006.posted by: Caitlyn Antrim on 07.14.07 at 08:57 AM [permalink]
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