Why the Law of the Sea Treaty (Annex VI, Art. 39) is Unconstitutional

by Julian Ku

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).ITLOS

Here is the provision in its entirety:

Article 39 Enforcement of decisions of the Chamber

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.


6 Responses

  1. Julian,

    Very interesting post. Two comments/questions:

    First, I think that the non-self execution declaration actually might work. It’s true that Art. 309 of the UNCLOS prohibits reservations, but the self-executing nature of a treaty is a matter of US domestic law, not international law. A declaration would in no way diminish US obligations under international law, and that is what the ban on reservations is designed to prevent. Art. 39 of the ITLOS Statute does require Chamber decisions to be treated as the decisions of the highest national court. It doesn’t require, however, for this to happen without any implementing legislation. It would be interesting to see how other dualist countries, say the UK or Germany, implemented this part of the Convention.

    Secondly, why exactly do you think there is a constitutional problem if Congress passes a statute requring Chamber decisions to be treated as binding precedent? It just cannot be an issue of impermissible delegation of the judicial powers of US courts, since US courts don’t have the jurisdiction anyway to decide disputes between sovereign states (or the Seabed Authority) under the UNCLOS.

  2. Julian,

    Can you explain why Art. 39 should create any problems than Art. 54(1) of the Convention on the Settlement of Investment Disputes (to which the US is a party)? Art. 54(1) provides that:

    “Each Contracting State shall recognize an award rendered pursuant to this Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State. A Contracting State with a federal constitution may enforce such an award in or through its federal courts and may provide that such courts shall treat the award as if it were a final judgment of the courts of a constituent state.”

    You may have dealt with this point in your article but a quick summary would be useful. Is the difference that Art. 54 ICSID requires only that an ICSID award be treated like a judgement of a state court (I mean “state” of the US) judgment? If so, what is the key difference as a matter of US law? Are you suggesting that US courts may have grounds for not enforcing an ICSID award which would not apply under Art. 39? It is generally thought that the ICSID convention (unlike the New York Convention on Recognition and Enforement of Arbitral Awards) does not provide any grounds on which a State may refuse enforcement (other than foreign sovereign immunity).

    The questions above are not rhetorical. This is a genuine request for clarification.

  3. I meant to ask in my previous post, why Art. 39 should create any greater problems than Art. 54 ICSID.

  4. There’s no serious constitutional problem. It’s not a “delegation” of any U.S. governmental authority. It’s simply a commitment by the United States that we will conform our conduct to another identified entity’s resolution of a particular legal issue — similar to an agreement to be bound by arbitration decisions, or to “assimilate” state law as the law that will govern conduct on certain federal property (upheld a long while ago in Sharpnack). It’s not as if there were Article III cases or controversies that would have been decided by a federal court before the treaty but that will now be decided by a foreign tribunal.

  5. With respect, I don’t think there is a problem.

    It is simply not true that Article 39 imposes an obligation on US courts ‘to treat an international tribunal judgment as binding precedent.’ The enforcement of an international – or, indeed, any other – judgment has nothing whatsoever to do with the effect of the case as precedent. The distinction here is between the operative part of the judgment – the Chamber’s ‘order’, if you will – and the reasoning, or ratio decidendi of the case.

    True, this distinction has escaped many, particularly in the interpretation of Article 59 of the ICJ Statute; even the US Supreme Court in Sanchez-Llamas made the unfortunate, but thankfully inconsequential mistake of citing that provision, when in reality it means only that the operative part of the judgment binds only the parties, i.e. that res judicata and precedent are fundamentally different concepts (the point is made extremely well by Judge Shahabuddeen in his Precedent in the World Court).

    Article 39 does not require that US courts follow the Chamber’s statements on the applicable law in any later case; as Dapo Akande implies, it relates only to the recognition of judgments. This is, of course, an area well known from private international law, and from the ICSID context.

    The relevance of the ‘in the same manner as judgments or orders of the highest court’ phrase in Article 39 is, then, simply that the decision of the Chamber must be treated as ‘final’. Consider the possibility that US law gives decisions of the Chamber the status of a judgment by a US District Court: the implication might be that the decision is subject to appeal, from the Chamber to a Circuit Court; this would obviously be absurd, and this, I should think, is what Article 39 seeks to prevent.

    Of course, it is at the very least arguable that the provision cited by Dapo Akande puts this much more elegantly. The reference to the ‘highest court’ is a bit confusing, as we tend to think of our highest courts more as sources of precedent than as institutions of binding dispute settlement as between the parties; in the latter respect, the judgments of the highest courts are, of course, no more and no less binding than the final judgments of any lower court.

    I suspect that the confusion is likely to be even greater for American lawyers (and their colleagues from many other jurisdictions). Where the supreme court does not so much address orders to the parties (in the sense of: A shall be liable to B, and shall pay this and that sum), but allows or dismisses appeals, and remands or affirms lower judgments, it is slightly difficult to think of that court as rendering decisions that are themselves subject to enforcement.

    I have already hinted at why I can’t imagine there are any Constitutional problems regarding the enforcement of decisions by the Chamber: this is really no different from the enforcement of foreign judgments or arbitral awards, and I fail to see why that should involve any abdication of the judicial powers of the United States, or the ‘delegation of judicial power under Article III’. If pressed, I might just make out why the creation of precedent for American courts should be for other American courts, and no-one else; but I cannot imagine that the recognition of foreign judgments is somehow forbidden territory under the Constitution.

    Of course, Sanchez-Llamas, and its reliance on the ‘one Supreme Court’ language in Article III, concerned the precedential effect of foreigjn and international decisions. Messrs Sanchez-Llamas and Bustillo had not been among the Mexican citizens whose cases were decided by the ICJ in Avena and Other Mexican Nationals, and Mr Bustillo wasn’t even a Mexican citizen at all (this was relevant, although the Supreme Court didn’t mention this, because of the ICJ’s instructions on procedural default in cases involving any other Mexican nationals – Mr Sanchez-Llamas is Mexican, but his cases didn’t raise any procedural default points – see on all of this my post here, including the third comment, in which I correct a fundamental factual mistake). The Supreme Court was simply faced with a question of law that the ICJ had decided in Avena and LaGrand, and held in that context that the Constitution did not provide for (and possibly even excluded) any precedential effect of international decisions.

    There is nothing in that case to worry either ICSID, or private international lawyers, or the Seabed Disputes Chamber.

  6. Correction: the first mention of Sanchez-Llamas should have been in these terms:

    ‘True, this distinction has escaped many, particularly in the interpretation of Article 59 of the ICJ Statute; even the US Supreme Court in Sanchez-Llamas made the unfortunate, but thankfully inconsequential mistake of citing that provision for the position that there is no stare decisis in the World Court, when in reality it means only that the operative part of the judgment binds only the parties, i.e. that res judicata and precedent are fundamentally different concepts.’

    My apologies.

    Incidentally, I can only agree with what Marko Milanovic has written on the reservation/exception issue. International treaties hardly ever demand that any force or effect be given to them in domestic law; they are usually content to impose obligations of result, without a care in the world for any matters of municipal law. The exclusion of self-executing effect is therefore not a reservation, and perfectly permissible. (Mind you, the US would still have to comply with Article 39 in any concrete case that may arise, but that problem might not arise on the facts – or at all, ever, as I have sought to argue above)

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