02 Jul Just When You Thought It Was Safe to Go Outside . . . Goldsmith and Rabkin on the Law of the Sea
Here’s an op-ed from Jack Goldsmith and Jeremy Rabkin in today’s WaPo lamenting the Bush Administration’s decision to support ratification of the Law of the Sea Treaty. The piece fits a sovereigntist template: describe formal capacities of a new international institution, spin out way in which in theory it could restrain core US discretion, and voila — signing on looks nothing less than treasonous. See this piece by Jack on the ICCPR, for instance; ditto for almost all of the opposition to the ICC.
In this case, it’s those terrifying folks at the International Tribunal for the Law of the Sea in Hamburg — including Chinese and Russian judges! —, who (again, in theory) might “use a legal dispute to score points against American ‘unilateralism’ and ‘arrogance’ for a global audience keen to humble the United States” and find American anti-terrorism operations on the high seas inconsistent with UNCLOS.
Sounds pretty unlikely to me, in the same way that the ICC was never going to haul US servicemembers into the dock, at least not anytime soon. Remember, ITLOS is a tribunal that has had a grand total of 13 cases on its docket during its ten-year existence. (Others will have to speak to whether the court is showing the temperament to make major policy statements against superpower parties; my hunch is that it isn’t.) What better and obvious way to ruin your fledgling institutional future than to aggressively pursue a case against the US? Avena and LaGrande are a different kettle altogether, coming from a relatively well-established tribunal, in a case heavy with abolitionist overtones. In the meantime, now, armed with this op-ed, sovereigntists on the Hill will have more respectable ammunition than this to defeat one of the few internationalist initiatives this Administration has decided to take on.
“…spin out way in which in theory it could restrain core US discretion, and viola —”
Viola? I play the viola. I don’t see the connection between the viola and this treaty.
Yes, Peter, making ze French spelling mistakes really detracts from your argument … not. I really never, ever understood why sovereigntists have to be against every and any method of international dispute settlement, in this case both ITLOS and arbitration. They can at least make a semi-reasonable argument against the ICC – even though, at a very basic level, the opposition to international fora is always more emotional than it is rational. But the ITLOS, for God’s sake. And then making the argument that ITLOS judges will act on their anti-American animosity, when it is precisely this disdain towards international institutions that contributes to this animosity worldwide. Truly surreal.
Yes, it does seem to be the case that “at a very basic level, the opposition to international fora is always more emotional than it is rational,” for it is an incontrovertible fact that “[i]nternational agreements and institutions…are driven by a recognition that the problems governments now confront–environmental degradation, security threats, economic growth, human rights, and many others–can no longer be addressed by the exercise of authority confined withing increasingly porous national borders. As intergovernmental cooperation has become essential to national and global well-being, states have found it necessary to pool or limit their sovereignty, drafting treaties that set out rules for their collaborative endeavors and create institutions to help police those rules.” And such agreements and institutions “serve state interests by reducing transaction costs, increasing access to information, monitoring behavior, mediating disputes, and using incentives and sanctions to induce compliance with prior commitments.” Furthermore, our “disaggregated and decentralized international legal system” leaves “nation states free to pursue their own interests, with states that possess more material or financial resources often enjoying a decided advantage in their relations with weaker or poorer countries.” Yet even the most powerful states have come to realize that “operating under anarchic conditions is costly,… Read more »
oops, errratum: “…confined within increasingly…”
While I did loathe the LotS treaty, all the parts I really objected to have been removed. Their argument seems almost pro forma, really, rather than a matter they truly have long held, passionate feelings for.