Will the Law of the Sea Treaty Sink the U.S. Navy?

by Julian Ku

Jeremy Rabkin, a long time critic of contemporary international law and institutions, has a more detailed and persuasive attack on the U.N. Convention of the Law of the Sea in this week’s Weekly Standard than his previous joint op-ed with Jack Goldsmith some weeks back. As the U.S. Senate gears up for ratification hearings, Rabkin’s voice will no doubt be heard. His main objection is to UNCLOS’s dispute settlement provisions, which he believes will unduly threaten the U.S. Navy’s freedom on the seas to protect U.S. national interests. Here is a key graf:

In past centuries, rules about the conduct of ships at sea emerged from agreements among major naval powers, and there were always a number of naval powers engaged in challenging, enforcing, and accommodating agreed-upon standards. Now, when the United States (by some estimates) actually deploys a majority of the world’s naval capacity, we are told that our security requires us to participate with 150 other states in electing international judges to determine, in the last analysis, what rules our Navy must accept.

To find this convincing, one must be awed by the moral authority of the U.N. majority. To think that way means that we seek consensus at almost any price. Why do we claim to be independent, why do we invest so many billions in defense capacities, if we are prepared to go along with an international consensus, articulated (and -readjusted) by international jurists? The Senate should think long and hard before making the U.S. Navy answer to the U.N version of the Law of the Sea.

http://opiniojuris.org/2007/09/01/will-the-law-of-the-sea-treaty-sink-the-us-navy/

4 Responses

  1. I am tiring of these arguments which are variations on saber-rattling. If the treaty arbitation mechanism works in the way that the bugaboo types fear, we will denounce the treaty – as will other states who are dissatisfied with how the arbitral decisions work. The US retains its sovereignty though it also remains constrained by customary international law.

    Back in the good old days of major seafaring nations making the rules, we also had colonial rule in lots of the parts of the world and the voices of lots of the world were not considered worthy of being heard. All these states are involved because there are such a variety of issues relating to the sea that concern so many states whether coastal stating, importing/exporting states, military or other bases. So everyone tried to act like adults and come up with a pact that covers a great deal of ground and creates rules and structures for dealing with the issues that arise.

    Consensus is not necessarily a bad word. Just like majority rule is not necessarily a good word (remember segregation). Or force. As we have seen in my public internatinal law class – do we always have to go to nuclear weapons to resolve a problem between sovereigns?

    As to Nicaragua, we could not convince the ICJ of the soundness of our arguments – that happens when you do the kinds of things we were doing. All that says to me is that one can not just blow smoke at the rest of the world and expect them to kowtow to us.

    So these folks spend their time blowing smoke hoping the Senate will kowtow. Please grow up.

    Best,

    Ben

  2. Ben’s words are true. If the UNTLOS departs from the ordinary meaning of the treaty, which allows under Article 298, Section 1, Subsection (b), countries to remove jurisdiction to UNTLOS for military activities, the US would withdraw from the treaty (likely along with several other countries).

    Of course, the likelihood of military activities being read broadly is slim, and Rabkin et al, is attempting to appeal to the worst case scenario to prevent ratification. However, even given the worst case scenario, reasonable remedies, accepted under international law, would still be available to the US in this case. The time for ratification is far overdue, and the Senate should act fast to give its consent to ratification.

  3. Julian, please. The US Navy supports ratification of UNCLOS. This is old news, as this story from 2004 shows:http://www.navy.mil/search/display.asp?story_id=12753. Isn’t it obvious that Rabkin and the others in his fringe group (what else to call them when every other player supports ratification, including the White House and the shipping industry) have their own agenda? Is there a new multilateral treaty they would support for the US?

    Can’t we end this non-sense and allow Senator Lugar his long-sought goal of ratification sometime before he reties?

  4. Julian, please. The US Navy supports ratification of UNCLOS. This is old news, as this story from 2004 shows:http://www.navy.mil/search/display.asp?story_id=12753. Isn’t it obvious that Rabkin and the others in his fringe group (what else to call them when every other player supports ratification, including the White House and the shipping industry) have their own agenda? Is there a new multilateral treaty they would support for the US?

    Can’t we end this non-sense and allow Senator Lugar his long-sought goal of ratification sometime before he reties?

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