Key critics dissect arguments for LOST

In an op.ed. published in yesterday’s Washington Post, renowned legal scholars Jeremy Rabkin and Jack Goldsmith warned of the dire implications that would flow from a Senate decision to ratify the U.N. Convention on the Law of the Sea – universally known as the Law of the Sea Treaty (or LOST). 

Most worrying among these, Messrs. Rabkin and Goldsmith observed, is that U.S. accession to the accord “would put America’s naval counter-terrorism efforts under the control of foreign judges.”  Such judges would, according to the authors:

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.

The irremediably problematic nature and far-reaching implications of LOST argue for urgent reconsideration on the part of treaty proponents – most especially the President, Senators who otherwise subscribe to the Reagan philosophy of “peace through strength” and senior military officials.

A Treaty the Senate Should Sink
By Jack Goldsmith and Jeremy Rabkin

The Washington Post, Monday, July 2, 2007

The Bush administration is urging the Senate to consent this summer to the Convention on the Law of the Sea, the complex and sprawling treaty that governs shipping, navigation, mining, fishing and other ocean activities. This is a major departure from the administration’s usual stance toward international organizations that have the capacity to restrain U.S. sovereignty. And it comes in a surprising context, since the convention has disturbing implications for our fight against terrorists.

Deputy Secretary of State John D. Negroponte and Deputy Defense Secretary Gordon England maintain that the convention will enhance U.S. security. They argued in the Washington Times last month that to meet the “complex array of global and transnational security challenges,” the United States must have “unimpeded maritime mobility — the ability of our forces to respond any time, anywhere, if so required.”

This is true, but ratifying the convention won’t bring this benefit. Instead it would put America’s naval counterterrorism efforts under the control of foreign judges. 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.

Supporters note that many of the treaty’s “freedom of the seas” provisions favor U.S. interests. But the United States already receives the benefits of these provisions because, as Negroponte and England acknowledged, they are “already widely accepted in practice.” They maintain that ratifying the convention would nonetheless provide “welcome legal certainty.” In recent years, however, the United States has not received much legal certainty from international tribunals dominated by non-American judges, and what it has received has not been very welcome. There is little reason to expect different results from these tribunals.

President Bush invokes a different rationale for ratifying the convention, arguing that it would “give the United States a seat at the table when the rights that are vital to our interests are debated and interpreted.” What this really means is that American views of the law of the sea, even on issues related to national security, could be outvoted by a majority in an international forum. How can this make us safer?

Jack Goldsmith teaches law at Harvard and was an assistant attorney general from 2003 to 2004. Jeremy Rabkin teaches law at George Mason University.