The Battle in the U.S. Over the Law of the Sea Treaty

by Julian Ku

Having just returned from Asia, which is awash in disputes over territorial sea rights and exclusive economic zones,  the U.S. domestic debate over ratification of the Law of the Sea Convention seems almost quaint.  Unlike pretty much every country in East Asia, the U.S. does not have any serious boundary or other kind of dispute that is likely to be swept up into the Law of the Sea Convention (OK, there is that whole Northwest Passage thing with Canada, but it’s Canada!). So the domestic battle does seem a bit strange, given that the U.S. has relatively less at stake than many other countries that have submitted themselves to UNCLOS.

There is also a depressingly predictable debate about UNCLOS every time ratification is considered by the Senate.  International law experts insist that it is absolutely crucial and necessary that the U.S. join, if for no other reason than that every other major nation in the world has joined.  And critics insist that it is a horrible treaty that will subordinate the U.S. to  corrupt and/or unaccountable international organizations.

I am a bit in the middle on this because I happen to think both sides are actually speaking some truth on UNCLOS.  It really is amazing that the U.S., with one of the world’s longest continental shelf and the world’s largest sea power is not a member of UNCLOS, which counts 161 states as members including our past and future seapower rivals Russia and China.  And because everyone else that matters has joined, it is harder for the U.S. to advance its interests through bilateral deals (see the excellent comments to this post from last year for further explanation of this point).

On the other hand, UNCLOS creates an unwieldy governing authority and structure that will, over time, become unaccountable and no doubt inimical to key U.S. interests (see here for the Goldsmith/Rabkin critique of the treaty’s effect on U.S. counterterrorism policy).  Effectively paying a “tax” to the UNCLOS authority for certain drilling is of questionable value.  And at least one part of UNCLOS is, in my humble opinion, unconstitutional because it essentially gives supreme and self-executing effect to judgments of the International Tribunal for the Law of the Sea’s Seabed Disputes Chamber (See Annex VI, Art. 39).

So a tough call with good arguments on both sides.  But in the U.S. system, a “tie” goes to the treaty opponents, since the two-thirds of the Senate must give its approval.  Let me go way out on a limb here and say that in this political environment, there is zero chance that UNCLOS will come anywhere near the 67 votes it will need to pass.  President Obama is going to have to wait for his second term (now there’s an unpleasant thought) before UNCLOS gets close to passage.

http://opiniojuris.org/2011/07/19/the-battle-in-the-u-s-over-the-law-of-the-sea-treaty/

One Response

  1. Prof. Ku wrote: “ And at least one part of UNCLOS is, in my humble opinion, unconstitutional because it essentially gives supreme and self-executing effect to judgments of the International Tribunal for the Law of the Sea’s Seabed Disputes Chamber (See Annex VI, Art. 39).”

    It is not so clear to me that SCOTUS is supreme in all cases in the sense that its decisions are final and conclusive.  First, the Constitution does not explicitly give SCOTUS such authority.  Second, SCOTUS itself recognized the final and conclusive authority of the prize courts established under the Articles of Confederation and consequently executed their decrees. See, e.g., Penhallow v. Doane’s Administrators. (Sanchez-Llamas v. Oregon did not involve parties in either the LaGrand or Avena ICJ cases; therefore, SCOTUS was not strictly bound by the ICJ’s decisions in these cases.) Third, shortly after the Constitution’s ratification, the U.S. entered into a treaty with Spain that gave final and conclusive authority to prize tribunals.  This U.S.  practice of recognizing such final authority has continued with the ICJ statute (art. 60) to which the U.S. is ipso facto a party.

    Francisco Forrest Martin

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