Rabkin in Washington Times: Look Before You Leap

Armed services committees in both houses should take a closer look at what changes the U.N Convention on the Law of the Sea (UNCLOS) might impose on activities of the U.S. Navy before deciding that ratification of UNCLOS is in the best interest of the nation, says Professor Jeremy Rabkin. Likewise, congressional committees with jurisdiction over environmental protection and commerce should look at other implications.

In a commentary in The Washington Times, Rabkin cites recent opinions of the U.S. Supreme Court and comments of its members as indicators that the court would view decisions of international courts or arbitration panels as binding authority for U.S. courts.

"We have had some recent warning lights," says Rabkin. "At the very least, we shouldn't ratify this treaty without giving the U.S. courts more direction from Congress about what--or who--it would commit them to heed."

Message from the dolphins? The Washington Times, June 29, 2008. By Jeremy Rabkin and Ben Lerner.

"But what if the previous ruling against the Navy hadn't come from a lower federal court but from an international tribunal? Would our own Supreme Court then have to go along? The answer might well be yes, if the United States ratifies the U.N. Convention on the Law of the Sea (UNCLOS), as the Senate Foreign Relations Committee has urged.

"UNCLOS establishes an international seabed authority with power to promulgate standards for the protection of 'resources' in or under the high seas, including animal life. UNCLOS allows this authority or other states to make claims against a signatory that fails to honor protective standards. If such disputes can't be resolved voluntarily, they can be brought to the International Tribunal for the Law of the Sea or to a special arbitration panel, whose key members would be chosen by international authorities.

"The Law of the Sea treaty makes participation in such proceedings 'compulsory.' That means the tribunal or the arbitration panel can go ahead even if the charged party thinks the proceedings are improper or inappropriate in the circumstances. States can invoke an exemption for 'military activities.' But since that term is not defined in the treaty it will be up to international authorities to say when it applies. They are most unlikey to read this exemption as broadly as the United States would like to do."

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