US Sec. of Def. Panetta’s Not Very Compelling Argument in Favor of the Law of the Sea Treaty

by Julian Ku

U.S. Secretary of Defense Leon Panetta kicked off the U.S. Senate’s forthcoming debate on the UN Convention on the Law of the Sea yesterday with a speech pushing for ratification.  His comments were reinforced by General Martin Dempsey, chairman of the Joint Chiefs of Staff.  I am agnostic on whether the U.S. should join UNCLOS and the Panetta speech didn’t offer any particular reason for me (or anyone else) to get off the fence.

Essentially, Panetta (and the military) argue that UNCLOS “locks in” a system of territorial delimitation and maritime governance that benefits the U.S.  Without participating in UNCLOS, the U.S. rights to its continental shelf, its freedom of navigation, the Arctic, etc. would rest only on the foundation of customary international law.  And the U.S. would be unable to shape the development of the law without “a seat at the table.”

I guess I don’t really find this all that compelling.  As I understand it, if the U.S. stays out of UNCLOS, it could still assert all of the same rights that nations in UNCLOS could assert, albeit based on CIL, not treaty law. It seems to me the real disadvantage in staying out of UNCLOS is that the US loses access to UNCLOS procedures and UNCLOS entities.  For instance, it could not participate in the delimitation of the continental shelf under the Arctic.  But I don’t think a UNCLOS entity could force the U.S. to accept its determinations.  The U.S. could negotiate bilateral agreements with UNCLOS members to settle continental shelf delimitations.  It would be harder, but not impossible.

The bottom line for me is that I don’t find the need for the U.S. to join UNCLOS all that compelling.  On the flip side, I have never found the scary stories about the downsides of UNCLOS all that compelling either.  Joining will subject the US to binding arbitration, but that’s not a dealbreaker for me. The U.S. is stuck in binding arbitration in many different contexts. The concerns about funneling revenues derived from seabed exploitation through the UNCLOS Authority are real, but also relatively minor. This is not an “internal” tax on US domestic activities. It’s an external tax on US companies acting outside U.S. territory.

My main complaint about UNCLOS is somewhat more technical.  The provision obligating the U.S. to essentially give full faith and credit to judgments of the Seabed Disputes Chamber is of highly questionable constitutionality.  The State Department’s view that this is simply “non-self-executing” could be easily overturned in court, given the very clear language of the provision.  To be honest, this is still a mostly theoretical issue, since the Chamber has yet to even hear a single case, but it annoys me that this issue is being ignored and glossed over by both supporters and critics of UNCLOS.

In any event, expect lots of noise and grumbling this summer over UNCLOS. Like all debates, there will be lots of hype on both sides, and I will try my best to ignore it.

http://opiniojuris.org/2012/05/10/us-sec-of-def-panettas-not-very-compelling-argument-in-favor-of-the-law-of-the-sea-treaty/

One Response

  1. Julian,

    FYI the United States has already signed a Convention that gives international tribunal judgments full faith and credit:  the ICSID Convention. 22 U.S.C. 1650a provides that:

    “An award of an arbitral tribunal rendered pursuant to chapter IV of the convention shall create a right arising under a treaty of the United States. The pecuniary obligations imposed by such an award shall be enforced and shall be given the same full faith and credit as if the award were a final judgment of a court of general jurisdiction of one of the several States.”

    The Supreme Court discussed the statute in Medellin, stating the following: 

    “Congress is up to the task of implementing non-self-executing treaties, even those involving complex commercial disputes. The judgments of a number of international tribunals enjoy a different status because of implementing legislation enacted by Congress. See, e.g., 22 U. S. C. §1650a(a) (“An award of an arbitral tribunal rendered pursuant to chapter IV of the [Convention on the Settlement of Investment Disputes] shall create a right arising under a treaty of the United States. The pecuniary obligations imposed by such an award shall be enforced and shall be given the same full faith and credit as if the award were a final judgment of a court of general jurisdiction of one of the several States”); 9 U. S C. §§201–208 (“The [U. N.] Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958, shall be enforced in United States courts in accordance with this chapter,” §201). Such language demonstrates that Congress knows how to accord domestic effect to international obligations when it desires such a result.” 

    I’d be curious why you think such a full faith and credit statute for international tribunals is unconstitutional in a full post sometime.
     

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