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.

The Reagan administration endorsed the basic elements of this arrangement, claiming them as established customary law (since so many states did agree to these terms). In declining to sign or ratify the treaty, it focused on objections to the complex regulatory scheme established in the treaty for international control of seabed mining under the high seas (beyond the 200 miles claimed by coastal states as "exclusive economic zones"). In the early 1990s, the Clinton administration negotiated an appendix to the treaty which greatly simplified the controls on international seabed mining, after which the Clinton administration--and major European partners--pronounced the treaty "fixed."

The fix for mining in international waters may or may not be adequate. No company with the resources to undertake a mining operation beneath the high seas has yet applied for U.N. certification to do so--more than a decade after the new regulatory scheme went into effect. But national security will not be greatly affected whether we can or can't finally engage in activities to recover mineral ore from beneath the high seas. Other aspects of the treaty pose much more direct threats to national security.

The most threatening may be the scheme in the treaty requiring all disputes about law on the seas to be settled by international arbitration. There is nothing wrong with submitting particular disputes to arbitration. The United States actually pioneered this practice in modern diplomacy, in a 1795 treaty with Britain negotiated by Chief Justice John Jay. Even U.S. boundary disputes with other countries were submitted to arbitration in the 19th century. But the United States has always resisted the idea that it could be forced into arbitration, especially where some outcomes were regarded, from the outset, as unacceptable.

Advocates of the treaty point to various reassuring features in this scheme. The treaty, for example, establishes a new international court to deal with sea-based disputes, the International Tribunal for the Law of the Sea (ITLOS), based in Hamburg, Germany. What if that court, with 21 judges chosen by the member states (many of which we find unsavory), becomes as politicized as other U.N. organs have been? Not to worry, say treaty advocates: The rules allow states the option of settling disputes through ad hoc arbitration, with five arbitrators selected for the purpose by the individual states engaged in the particular dispute.

But it may not always be possible to agree with another state on which judges should be trusted. What annexes to the treaty establish is that, where states can't agree, each will pick an equal number of arbitrators and the tie-breaking additional arbitrators will be chosen for them (depending on the procedure they pick) either by a judge on ITLOS or by the secretary general of the U.N. So we are back to saying, if there's a dispute about what our Navy can rightfully do, we can trust the good judges of the Law of the Sea tribunal or the U.N. secretary general to ensure that the forum where our claims are resolved will take an open-minded view of our concerns. They will never be distracted by hostile intrigues, by jealousy of American power, by eagerness to build up international authority--who could suspect U.N. agents of such low motives?

But it won't come to this, anyway, say defenders of the treaty. The treaty expressly provides for states to claim exemptions from compulsory arbitration where "military activities" are involved. And the United States will certainly claim this exemption. But are we engaging in "military activities" when we deploy a naval "cordon" to enforce a peacetime "quarantine"? Are we engaging in "military activities" when, in peacetime, we send warships into waters where their right of passage is contested by the host state?

To answer such concerns, the Bush administration proposes that the Senate ratify the treaty with a statement of qualifications, including the "understanding" that the United States interprets this exemption to mean "military activities as defined by the United States." But the treaty expressly prohibits states from making "reservations" to its substantive provisions. For tribunal judges or international arbitrators to accept the American "understanding," they would have to accept the idea that any state can nullify its obligations under the treaty by characterizing all its contrary actions as "military activities" and therefore, if not permissible, at least immune to challenge from international authorities. How likely is it that the International Tribunal for the Law of the Sea or its designees will take such a self-effacing or self-denying view of their own authority?

Advocates think it is worthwhile to hope for such results, because, they say, the treaty offers such important protections of naval transit rights. But the United States has, for over a quarter century, embraced the standards in the treaty as a guide to accepted international practice. By ratifying the treaty and committing ourselves to participate in dispute-settling mechanisms, we adopt not our own understandings but those which international authorities may choose to put on them. And it's not as if the standards set out in the treaty are so clear that they couldn't be twisted in dangerous ways by unsympathetic interpretations.

The guarantee of "innocent passage," for example, provides for exceptions. Among other things, coastal states may deny access to their territorial waters to foreign ships which engage in such "activities" as "collecting information to the prejudice of the defense or security of the coastal state" or, even more broadly, ships which engage in "any threat or use of force ...in violation of the principles of international law embodied in the Charter of the United Nations" (Art. 19, par. 2).

Recognizing that these provisions might be invoked against U.S. warships, the Bush administration proposes that the Senate's resolution of ratification stipulate this "understanding": Where a coastal state denies the right of "innocent passage" to a foreign ship (by denying that it is "innocent"), it must make such a determination solely "on the basis of acts [the foreign ship] commits while in the territorial sea [of the coastal state involved] and not on the basis of, for example, cargo, armament, means of propulsion, flag, origin, destination, or purpose." A ship is "innocent" if it behaves innocently--at that time. To nail this down, the administration also proposes a further "understanding": "The Convention does not authorize a coastal state to condition the exercise of...innocent passage...on the giving of prior notification to or the receipt of prior permission from the coastal state." Well and good, but many states have a contrary view.

As a fall-back, the administration proposes yet another "understanding": At least in the 200 mile economic zone, when outside territorial waters, foreign ships would be entitled to exercise all the "freedoms of navigation" allowable on the high seas, including engaging in "military activities, such as...intelligence collection, surveillance and reconnaissance activities...and conducting military surveys." But many coastal states have a different view here, too.

So the treaty can be acceptable if interpreted as we want it to be interpreted. But if we commit to the treaty, we are, by its terms, leaving ultimate interpretations to be determined by international tribunals, which may not agree with our interpretations. The treaty stipulates that decisions of international arbitration must be treated as "final" and "binding."

Putting aside lawyerly questions about the meaning of "finality," if we ratify the treaty, we will, as a practical matter, find it very awkward (to say the least) to reject the interpretations that emerge from international arbitration of its disputed points. In 1985, the United States disputed the jurisdiction of the International Court of Justice to hear Nicaragua's complaint against U.S. support for the "contra" insurgency there. When the ICJ rejected U.S. objections to its jurisdiction, the Reagan administration withdrew from the proceedings and insisted the United States would not be bound by the subsequent judgments against it (when, as expected, the Court did rule against the U.S. intervention).

But the Reagan administration had the courage to refuse consent to the Law of the Sea treaty. One reason defenders of the treaty say we must ratify it now is to reassure allies and skeptics in other countries regarding American commitments to international law. So, having bound ourselves in the most formal way to this treaty, are we really going to turn around and defy it--or interpretations of it offered up by its tribunal or by some other panel of international jurists--on the grounds that, in the end, we really mean to do whatever we please?

In all out war, we might disregard the Law of the Sea treaty--including its blanket admonition (which acknowledges no exceptions) that "the high seas are reserved for peaceful purposes." But if we've learned anything since 9/11, it's that the line between war and peace is not easy to draw in an era when threats of mass destruction can come from shadowy terror networks.

Take the question of suspects captured in Afghanistan--and the few captured elsewhere who have been brought to Guantánamo. Are they prisoners of war, covered by the 1949 Geneva Convention on this subject? The U.S. position is that such unlawful combatants--those who do not fall within the categories set out in the convention--are neither legitimate prisoners of war nor need they be treated as criminal suspects, who (according to international human rights conventions) must be either prosecuted or released.

The Bush administration has sought, in various ways, to mollify critics of its detention policy. Congress and the Supreme Court have insisted on certain legal safeguards and may ultimately demand more. But would we like the matter to be settled for us, all at once, by an international tribunal?

That is exactly what the Law of the Sea treaty would do: If we seize and detain a foreign ship and/or its crew, we must arrange some form of international arbitration within 10 days or the Law of the Sea tribunal will have jurisdiction to hear appeals for "prompt release." It has heard about one case a year in this category, since it got organized in the late 1990s and has never encountered a case in which it regarded further detention as justified. So, if we commit to this treaty, we will commit to having ITLOS review any seizures made at sea.

Far from treating such seizures as remote hypotheticals, the Bush administration has invested considerable effort in a "Proliferation Security Initiative" (PSI) under which the United States has signed agreements with states that provide flags for most of the world's commercial shipping. These agreements may strengthen U.S. claims to intercept suspicious ships on the high seas, when flying with markings from the most common flagging states (such as Belize, Panama, and Libya, which have all signed such agreements). But the PSI agreements do not make clear when or whether ships or crews may be subject to long-term detention, and all the agreements stipulate that they do not supersede accepted standards of international law.

If we ratify the Law of the Sea treaty, even a PSI agreement with the flag state won't necessarily keep a dispute about the seizure from winding up before the Law of the Sea tribunal in Hamburg. That tribunal has asserted its right to hear claims for "prompt release" when filed by owners or operators of a ship, even when the nominal flag state takes no role in the proceedings. In past cases, ITLOS has ruled that ships cannot be detained, even when claimants refuse to supply full information about how the ship was acquired and on whose behalf. So while we have jealously reserved the right to detain terror suspects captured on land, we will, if we ratify this treaty, give up our right to decide when we can hold terror suspects seized at sea.

The point isn't that we should try to shoot our way out of any future disputes about our rights on the seas. The United States has a great stake in upholding general rules of restraint on the high seas, both to protect our own ocean-borne commerce and to reassure others that we can use our power wisely. But in a crisis or a special case, where national security seems to require some exception to the general rule, do we want to leave ourselves dependent on permission from some international body?

In the past, writers on international law acknowledged that states could not be expected to submit the most sensitive political questions--those most vital to national security--to international arbitration. Most of the world seems to have abandoned this view, but most nations no longer make great efforts to provide for their own defense. So, even as the United States has substantially reduced the scale of its naval forces, since the peak years of the Reagan build-up we have acquired a larger and larger share of the world's naval capacity. Others have shrunk their forces further and faster.

In past centuries, rules about the conduct of ships at sea emerged from agreements among major naval powers, and there were always a number of naval powers engaged in challenging, enforcing, and accommodating agreed-upon standards. Now, when the United States (by some estimates) actually deploys a majority of the world's naval capacity, we are told that our security requires us to participate with 150 other states in electing international judges to determine, in the last analysis, what rules our Navy must accept.

To find this convincing, one must be awed by the moral authority of the U.N. majority. To think that way means that we seek consensus at almost any price. Why do we claim to be independent, why do we invest so many billions in defense capacities, if we are prepared to go along with an international consensus, articulated (and -readjusted) by international jurists? The Senate should think long and hard before making the U.S. Navy answer to the U.N version of the Law of the Sea.

Jeremy Rabkin teaches law at George Mason University.