How Many Lawyers Does It Take to Sink the U.S. Navy?
Law professor Jeremy Rabkin argues that 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."
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?
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.
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.
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.
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.
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).