Law of the Sea Treaty Ratified! (By the Interior Department)

I noted a while back that the Bush Administration is treating the Law of the Sea as essentially ratified, even asking for money to fund the Law of the Sea Tribunal. Yesterday, more evidence of the Bushies’ love of the Law of the Sea Treaty has emerged, strangely enough, in the context of the ongoing Louisiana-Florida battle of underseas oil development in the Gulf of Mexico.

According to the St. Petersburg Times, the Interior Dept. has promised to redraw Louisiana’s territorial waters to stretch farther toward Florida. The basis for the new lines is none other than the Law of the Sea Treaty, which, as the paper points out, the U.S. has thus far refused to ratify.

Actually, this is not as crazy as the Times believes. The U.S. has signed the treaty after all, and it has also recognized many of its provisions as customary international law. U.S. courts apply customary international law all the time in resolving territorial disputes between states, so it seems fine if an executive agency (which otherwise has that authority) wants to use the same law for that same purpose.

Indeed, the executive agency has arguably more freedom to do so than a court, because the agency’s decision to use the Law of the Sea is essentially a policy decision that can be overturned by Congress or a future executive. But a court would codify the Law of the Sea treaty in domestic law, which is quite a different situation.