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.

The treaty also provides an absolute right of passage through, over and under international straits and through archipelagoes like Indonesia. These rights — the crown jewels of the treaty — did not exist before 1982, when the Convention was concluded. Our security and economic interests are tied directly to these rights.

Another provision in the treaty establishes the breadth of the territorial sea — the area within which a state may exercise sovereignty — at 12 miles. This allows the United States to extend its territorial sea from three miles to 12 miles, while making several other nations reduce their excessive claims.

Our national security interests alone should be sufficient to persuade the Senate to act now. But the Convention also advances the economic interests of our country. It gives us an exclusive economic zone out to 200 miles, with sovereign rights for exploring, exploiting, conserving and managing the living and non-living natural resources of the zone. Coastal states are given sovereign rights over the continental shelf beyond 200 miles if the shelf meets specific geological and other scientific criteria. Under the Convention, our Arctic continental shelf could extend out to 600 miles.

Our nation will be in a much stronger position to advance its military and economic interests if we ratify the treaty. We can guide and influence the interpretation of rules, protecting our interests and deflecting inconsistent interpretations. The agreement is being interpreted, applied and developed right now and we need to be part of it to protect our vital interests in the area of security and beyond.

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.

Finally, accession would powerfully and publicly reiterate the nation's commitment to the rule of law as the basis for policy and action. It would make U.S. leadership more credible and compelling, in important multi-national efforts like the Proliferation Security Initiative -- designed to counter proliferation of weapons of mass destruction and other dangerous materials. And it would strengthen the general argument in favor of more robust international partnership in all domains -- partnerships essential to meeting today's global and transnational security challenges.

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....

[Ratifying the treaty] would put America's naval counterterrorism efforts under the control of foreign judges. 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....

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.

Supporters note that many of the treaty's "freedom of the seas" provisions favor U.S. interests. But the United States already receives the benefits of these provisions because, as Negroponte and England acknowledged, they are "already widely accepted in practice." They maintain that ratifying the convention would nonetheless provide "welcome legal certainty." In recent years, however, the United States has not received much legal certainty from international tribunals dominated by non-American judges, and what it has received has not been very welcome. There is little reason to expect different results from these tribunals.

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;

2) One Bush administration's few international law initiatives has been to build up soft law precedents allowing for the U.S. to interdict flagged ships on the open seas if they suspect it of carrying WMD materials.

3) Ratifying the Law of the Sea treaty appears -- here I might be misreading things -- to undercut that initiative just a wee bit.

4) The U.S. already reaps the benefits of the Law of the Sea treaty, since it honors its provisions and every other country respects it as well. In other words, the gains from ratification don't seem that great.

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....

Canada’s claim over the Arctic Northwest Passage that links the Atlantic and Pacific Oceans is disputed by countries, including the United States, that consider much of the region to be international water.

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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