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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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?