The Magazine

How Many Lawyers Does
It Take to Sink the U.S. Navy?

Unfortunately, the Law of the Sea Treaty is no laughing matter.

Sep 10, 2007, Vol. 12, No. 48 • By JEREMY RABKIN
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On October 1962, President Kennedy ordered the U.S. Navy to prevent foreign ships from reaching Cuba unless they submitted to U.S. inspections on the high seas to verify that they were not transporting missiles or other offensive weapons to the island. Similar measures had been adopted in wartime blockades, but the Kennedy administration, not wanting to acknowledge a state of war with Cuba, termed this intervention a "quarantine."

It was a soothing term in the midst of a confrontation which threatened to trigger a catastrophic nuclear exchange. So the Kennedy administration did not let itself worry that its "quarantine" did not happen to correspond with any recognized practice in international law.

If a similar crisis should arise today, the Bush administration seems to think we could rely on an international tribunal to determine whether U.S. actions were or were not legally valid.

In 1975, when the Communist government of Cambodia seized the American ship Mayaguez, President Ford used airpower and a Marine landing to force the release of the ship. The United States acknowledged that the ship had been in Cambodian waters. Cambodia was not--in the midst of the murderous takeover by the Khmer Rouge--an obvious port of call. Rather than offer extended explanations or engage in extended negotiations, President Ford denounced the seizure of the ship as "piracy," authorizing U.S. retaliation with all necessary force.

If a similar crisis should arise today, the Bush administration seems to think we could rely on an international tribunal to rescue the American ship (after we'd offered full explanations on what it was doing in such a place).

In the 1980s, Libyan dictator Muammar Qaddafi claimed the Gulf of Sidra as Libyan territorial waters and demanded that foreign ships obtain Libyan permission before entering this broad bay on the Mediterranean coast. Since the mouth of the bay is 300 miles wide, it was not very plausible, under generally recognized principles of international law, to claim that all the enclosed waters were Libyan territorial seas. But Libya could have claimed authority to enforce conservation standards in an "exclusive economic zone" covering the whole Gulf of Sidra.

Rather than argue the fine points at length, President Reagan sent a carrier task force into these waters in 1986 to prove that they were open to international navigation, without prior permission. The task force opened fire on Libyan patrol boats which tried to resist its intervention. Two of the Libyan boats were sunk, with the loss of all hands.

Today, the Bush administration seems to think we could avoid such unpleasantness by relegating all such disputes to the determination of an international tribunal.

Why does the Bush administration think these things? It might make sense if the administration thought international law had developed to the point where it could always be an adequate replacement for the use of force or even the threat to use force. But the Bush administration, now entering the seventh year of what it calls a "war on terror," thinks no such thing. It might make sense if you were, let's say, a typical member of the European Union, unable to deploy force on your own, least of all naval force at a distance--and unable to rely on the EU for protection, because the EU has no naval capacity (or other military capacity) of any kind. But the United States is far and away the world's leading sea power.

So it is very hard to understand why the Bush administration is now urging the Senate to ratify the 1982 Law of the Sea treaty. Sadly, among the biggest boosters of the treaty are officials of the Defense Department and even uniformed commanders of the Navy and the Coast Guard, who, coached by service lawyers, have decided to rely on unreliable legal safeguards.

There are, it is true, many useful things in the U.N. Convention on the Law of the Sea (as it is officially titled). The basic bargain, embraced by U.S. negotiators in the 1970s, is sound: States were authorized to extend their territorial waters, where most national law still applies, for up to 12 miles from the coast, with an additional 12 miles available to support enforcement in the territorial waters. In addition, coastal states may claim regulatory authority over economic activities (fishing, seabed mining or drilling, etc.) for up to 200 miles from the coast. In return, coastal states would agree to assure rights of "innocent passage" through their waters for foreign ships, including, in most circumstances, foreign warships.