Rabkin in Washington Post on Ratification of Convention on the Law of the Sea

American views of the law of the sea, even those pertaining to national security, would be put at risk should the U.S. ratify the Convention on the Law of the Sea, says Professor Jeremy Rabkin.

Rabkin commented on the issue in a Washington Post op-ed, condemning ratification of the treaty governing shipping, navigation, mining, fishing, and other ocean activities on the grounds that it would put America's naval counterterrorism efforts under the control of foreign judges, whereby international tribunals would have the last word in matters pertaining to permissible U.S. naval actions.

Professor Rabkin, formerly Professor of Government at Cornell University, joins the faculty of Mason Law this year as a Professor of Law.

A Treaty the Senate Should Sink, Washington Post, July 2, 2007. By Jack Goldsmith and Jeremy Rabkin.

"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.

"The first is the International Tribunal for the Law of the Sea, based in Hamburg. Some members of the Hamburg tribunal come from countries naturally suspicious of American power, such as China and Russia. Others are not allied with the United States. Even judges from Europe and South America do not always see things the way U.S. military authorities do.

"The second institution is a five-person international arbitration panel. The United States and the flag state of the seized ship would have input into the selection of some of these arbitrators. But the U.N. secretary general or the president of the Hamburg tribunal would select the crucial fifth arbitrator when, as would typically be the case, the state parties cannot agree. They must choose from a list of "experts" to which every state party to the convention -- not just China and Russia but other unfriendly nations such as Cuba and Burma -- can contribute.

"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."