Rabkin in Weekly Standard: Consensus at Any Price?

Reliance on an international tribunal to arbitrate under the terms of the Law of the Sea treaty would mean that the U.S., which deploys a majority of the world's naval capacity, would would be bound to accept whatever rules were determined by that tribunal to apply to our Navy. That fact forms the basis of Professor Jeremy Rabkin's argument, as expressed in The Weekly Standard, against ratification of the Law of the Sea treaty.

Rabkin fears that reliance on the International Tribunal for the Law of the Sea (ITLOS), based in Germany, to deal with sea-based disputes would force the U.S. into a position in which the treaty is acceptable if interpreted as we want it to be interpreted, but unacceptable otherwise, thereby negating the concept that the arbitration must be final and binding. He argues that ITLOS, with 21 judges chosen by the member states, could become politicized, as have other U.N. organs, compromising U.S. interests and security.

How Many Lawyers Does It Take to Sink the U.S. Navy? The Weekly Standard, September 10, 2007. By Jeremy Rabkin.

"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."

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