Why the Law of the Sea Treaty (Annex VI, Art. 39) is Unconstitutional
President Bush has thrown down the gauntlet, announcing yesterday that he is again urging that the U.S. Senate to give its advice and consent to the U.N. Convention on the Law of the Sea. As Duncan noted earlier this week, the Senate Foreign Relations Committee is poised to move on this treaty, which has been awaiting ratification for over a decade. Conservative opponents of UNCLOS are already mobilizing (see here and here).
As a political matter, I believe the votes are there for ratification, but what do I know about politics? (Apparently not as much as Kevin, for instance) Still, it is worth asking: are there any serious legal concerns to the ratification of UNCLOS?
In general, I, like Duncan, don’t see anything particularly problematic about UNCLOS, especially since the U.S. already accepts most of UNCLOS as customary law. But I believe this provision, Art. 39 of Annex VI, does raise a real potential constitutional issue. This provision refers to the effect of decisions of the Seabed Disputes Chamber, a portion of the International Tribunal for the Law of the Sea authorized to settled disputes over seabed rights. (A picture of their spiffy building in Hamburg, Germany is shown here).
Here is the provision in its entirety:
The decisions of the Chamber shall be enforceable in the territories of the States Parties in the same manner as judgments or orders of the highest court of the State Party in whose territory the enforcement is sought.
As I argued at length here, this provision appears to require U.S. courts to give more than “full faith and credit” to judgments of this international chamber. Rather, it requires a U.S. court to treat such chamber decisions as equivalent to those of the U.S. Supreme Court. As far as I know, no prior treaty has ever committed the U.S. in quite this emphatic way. And I do think this provision raises real and serious U.S. constitutional questions about the excessive delegation of judicial power under Article III.
The U.S. State Department has really good lawyers, of course, so they’ve already figured out a solution to this problem. Their solution is to request the Senate attach a declaration to its advise and consent papers declaring this provision is “non-self executing.” This means that Congress would have to act to subsequently pass legislation giving effect to this provision.
But even this solution is not free of problems. First of all, UNCLOS art. 309 appears to prohibit any reservations and exceptions, which might be read to nullify any non-self execution declaration. Second of all, even if Congress passed subsequent legislation, this would help (but not completely resolve) the constitutional question of whether Congress can require federal and state courts (and maybe the U.S. Supreme Court) to treat an international tribunal judgment as binding precedent.
I have to admit that I don’t particularly care whether UNCLOS is ratified by the U.S. or not. But I am curious to see whether the interesting constitutional problem of Annex VI, Art. 39 ends up affecting the course of the debate.