U.S. Treaty Practice Does Not Have to Be a Zero-Sum Game!

by Duncan Hollis

November 5, 2013 is U.S. National Treaty Day.  Well, not really, but it might as well be given how much treaties are going to be in the news tomorrow.  For starters, the United States Supreme Court hears oral argument in the case of Bond v. United States (for the pleadings, see SCOTUS blog’s as-always-excellent round-up).  As we’ve blogged previously (a lot), the case challenges the scope of the U.S. treaty power as the basis for implementing legislation in areas where Congress otherwise could not legislate.  In this case, there’s some salacious facts leading to a rather unlikely prosecution under the implementing legislation for the Chemical Weapons Convention (let’s just say the case is a far cry from the scenario that won the OPCW this year’s Nobel Peace Prize).  In the process, Bond questions the continued precedential value of one of the most discussed (and read) cases in U.S. foreign relations law — Justice Oliver Wendell Holmes’ opinion in Missouri v. Holland.

Then, in the afternoon, the U.S. Senate Foreign Relations Committee takes up the UN Disabilities Convention . . .  again (here’s the line-up for those testifying).  The Convention got a lot of attention the last time it reached the Senate floor, with Senate Republicans voting it down despite the poignant appearance of former Senate Majority Leader Robert Dole, who came to support advice and consent to the treaty. U.S. Senators John McCain and Robert Menendez have an op-ed in USA Today taking their case for Senate advice and consent to the general public.

Of course, the Chemical Weapons Convention and the Disabilities Convention are not the only two treaties to have garnered media attention in recent weeks.  U.S. Secretary of State Kerry’s signature of the U.N. Arms Trade Treaty promoted a rather furious domestic back-lash about whether the United States should join that treaty (At present, it sure looks like there’s easily enough Senate votes to oppose it).  And, that’s not to mention the 1982 U.N. Convention on the Law of the Sea (UNCLOS).  It continues to be supported by a large majority of business and national security interests but remains stymied by Senate opposition from a very vocal minority who fear the loss of “sovereignty” that would come with U.S. consent.

I could easily write one (or more posts) on each of these treaty issues.  For now, though, I want to call attention to a common theme that runs through all the on-going debates.  In each case, the treaty fight ends up being framed as a fight between those who would situate U.S. treaties (and with them, U.S. law) within a larger community — international communitarians if you will — versus those I’d call autonomists — who seek autonomy from any international regulation whether in defense of national law, states’ rights, or individual liberties.  Thus, opponents to UNCLOS want the U.S. to be able to regulate its own maritime environment just as those who oppose the Disabilities Convention oppose its potential to go beyond the Americans with Disabilities Act.  Of course, the Disabilities Convention also raises the specter of further intrusions into U.S. state regulations akin to the fears of internationally-based prosecutions that lie at the heart of the Bond case.  And all of this is not to mention the NRA and their (rather unrealistic) charges that the Arms Trade Treaty would require the United States to violate the Second Amendment and the constitutional liberties individuals enjoy to bear arms.

This division between communitarians and autonomists helps explain how treaty debates are now almost always framed in all-or-nothing terms. The decisions on whether to join or enforce U.S. treaty commitments become zero-sum games; only one side can win and the other must lose. That narrative certainly makes for good media stories.  But, I wonder if playing the game this way is truly in the nation’s interests.  It seems we end up with some examples where communitarians can claim complete victory (see, e.g., the new START treaty or the gold standard of an international engagement — the Montreal Protocol) while autonomists have equally compelling winning claims on their side (see, e.g., Medellin). Citing such divergent results, however, only seems to inflame the passions of the “losing” side and risk entrenching no-compromise strategies that seem a recipe for disaster (see, e.g., this October in Washington).

So as the Chemical Weapons Convention and the Disabilities Convention take center stage, I’d like to flag a simple point: U.S. treaty-making and implementation is a much more flexible and nuanced practice than the existing debates suggest.  There are not just some, but many, potential outcomes in these cases that would not require the definitive death of the treaty power OR states’ rights.  Indeed, as Peter’s most recent post suggests and as I’ve written previously, looking at the history of U.S. treaty-making post Missouri v. Holland, it’s pretty clear that the United States regularly accommodates state interests/rights in entering and implementing U.S. treaty commitments.  Thus, a win for the United States in Bond is unlikely to mean states rights get overridden by all future treaty-making.  Similarly, there are ways for Ms. Bond to win this case (think, creative statutory interpretation) that don’t necessarily mean we all get to stop reading Holmes’ opinion.  One could make a similar point about the Disabilities Convention.  The Senate doesn’t have to give unconditional advice and consent — it has a long history of RUDs (reservations, understandings, and declarations) that might be used to mitigate the scope of U.S. commitments to that treaty regime.  Even federalism interests writ large can be protected (see, e.g., the RUDs included in U.S. ratification of the Organized Crime Convention or the UN Corruption Convention).

Now, there will be those who say RUDs are inadmissible and run counter to the object and purpose of one or more of these treaties, just as there will be those who say joining any treaty will lead to some impermissible sacrifice of U.S. “sovereignty.”  My point (hope) is that Senators (and Supreme Court Justices) don’t have to always accept these cases as they are characterized at the poles. There are plenty of precedents that may be brought to bear balancing competing interests such as federalism and international engagements at the same time.  We’ll see if any such hybrid results appear possible in the coming days.  I’d hope so, but given current trends in American politics, I’m not sure I’d bet on it.

Did the U.S. Set a Precedent for the China/Russia Boycott of UNCLOS Arbitration? Sure! But So What?

by Julian Ku

Wim Muller, an associate fellow in international law at Chatham House, takes issue with my observation that China’s rejection of Annex VII UNCLOS Arbitration may have influenced Russia’s similar rejection of UNCLOS proceedings in the Greenpeace arbitration.  Other commenters take issue with my further claim that Russia’s rejection is another “body blow” to ITLOS dispute settlement. I offer my (“typically tendentious”) response below.

Muller’s criticism, I believe, is mostly just a misunderstanding of my position.  I don’t disagree that the U.S. and other countries have walked away from binding international dispute settlement and this could have set a precedent here.  But my point is narrower:  China and Russia are, as far as I know, the first states ever to reject participation in UNCLOS dispute settlement, and their actions are a serious challenge to the future of UNCLOS dispute settlement, which is supposed to be a key and integral part of the UNCLOS system. Thus, although UNCLOS dispute settlement is not exactly a model of success, it has never before suffered the spectacle of two member states rejecting its tribunals’ jurisdictions (within the same calendar year no less).  I would be surprised if the U.S. example from 1984  was more relevant to Russia’s decision than China’s decision from February of this year.  I don’t think any UNCLOS state has ever rejected the jurisdiction of the ITLOS with respect to provisional measures or “prompt release” procedures.  Indeed, it is worth noting that Russia has not only availed itself of the “prompt release” procedure on one occasion, but it has also submitted to ITLOS “prompt release” jurisdiction in two prior cases.  To be sure, it did not contest jurisdiction in those cases and neither involved similar facts.  But it is striking that Russia has gone from active UNCLOS dispute settlement player to effective boycotter.

UNCLOS dispute settlement is not “voluntary.” It is a system of compulsory  and binding dispute settlement.  Indeed, UNCLOS itself makes clear in Art. 288(4) that UNCLOS tribunals have the power to determine their own jurisdiction.  By refusing to participate in UNCLOS dispute settlement based on their own unilateral claims about jurisdiction, China and Russia are essentially telling the tribunal that they will not accept jurisdiction, no matter what the tribunal determines about jurisdiction, and despite the plain authority those tribunals hold under Art. 288(4).  It may not be a “body blow” but it is not exactly a resounding vote of confidence in UNCLOS dispute settlement either.

Now, Muller seems to be arguing

Goodbye UNCLOS Dispute Settlement? China Walks Away from UNCLOS Arbitration with the Philippines

by Julian Ku

Breaking news:  China has rejected arbitration under Annex VII of the UN Convention on the Law of the Sea with the Philippines, dealing a heavy blow to the future of dispute settlement under UNCLOS (h/t China Law Prof Blog).  According to this China Daily report,

“Chinese Ambassador to the Philippines Ma Keqing had an appointment with officials from the Philippines’ Foreign Ministry on Tuesday and returned a note and related notice after expressing China’s rejection,” spokesman Hong Lei said at a daily press briefing.

“The note and related notice not only violate the consensus enshrined in the Declaration on the Conduct of Parties in the South China Sea (DOC), but are also factually flawed and contain false accusations,” Hong said.

As I have noted here (and as Prof. Clarke notes as well), the Philippines is now within its rights to ask the President of the International Tribunal for the Law of the Sea to appoint all four remaining arbitrators for the Annex VII tribunal.  Once the President of ITLOS has done so, the duly constituted arbitral tribunal may act even without China’s participation.

Upon reflection, I am not really surprised China has decided to walk away from the Annex VII tribunal.  As I noted earlier, such tribunals have tended to combine their considerations of jurisdiction with those of the merits.  They have not generally bifurcated their proceedings, nor do they seem to have any obligation to do so.

This is a problem for China because while their jurisdictional challenge is pretty strong, their argument on the merits is undeveloped and fuzzy.  They have never exactly spelled out what they mean by having “indisputable sovereignty” over the South China Sea.   Do they mean it is a territorial sea? Or that they have general economic rights similar to an Exclusive Economic Zone?

So I am not shocked that China is walking away here. The question for the Philipppines is: what next? Do they continue with the Annex VII arbitration without China? Well, their DFA seems ready to move forward without China.  But would any award issued by this tribunal be pretty meaningless?

I’m not sure. I think that any award there would have little impact on China, but it should be useful in helping rally allies in Southeast Asia, especially within ASEAN.  It is not going to stop China much, but an award that undermines the legality of China’s claims is certainly better to have than not to have. But it is not nearly as much as it would have been if China had played ball (and lost).

China’s statement contains a curious and hard to understand argument.  According to the Chinese foreign ministry, the Philippines arbitration claim “complicates” resolution of conflicts in the South China Sea in violation of the Declaration on Parties’ Conduct in the South China Sea.    Presumably, China is referring to Article 5 of the Declaration:

5. The Parties undertake to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability including, among others, refraining from action of inhabiting on the presently uninhabited islands, reefs, shoals, cays, and other features and to handle their differences in a constructive manner.

Does making an arbitration claim under Annex VII “complicate or escalate disputes”?  Given the whole context of Paragraph 5, I am highly doubtful of this argument. One must also note that the previous paragraph instructs all parties to

undertake to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force, through friendly consultations and negotiations by sovereign states directly concerned, in accordance with universally recognized principles of international law, including the 1982 UN Convention on the Law of the Sea;

The explicit reference to UNCLOS (albeit the 1982 version) doesn’t really add much weight to the claim that the the Declaration somehow prohibits parties from resorting to UNCLOS arbitration.  If anything, it goes the other way.  Given that the Declaration is not technically binding under international law anyway, let’s just say this is the weakest of a series of weak arguments trotted out by China in this dispute.

So let’s just call this what it is: China is thumbing its nose at UNCLOS and it has now dealt a  serious, near fatal blow, to the UNCLOS dispute settlement system, at least in its ability to resolve serious disputes involving major powers.  UNCLOS arbitration is not going to restrain China in any significant way. At least, China doesn’t think it will pay any serious costs to walking away, which is why it is willing to accept the equivalent of a default judgment.

From the perspective of the United States, the China-Philippines episode is a cautionary tale. On the one hand, it suggests that those critics of UNCLOS worried about the impact of Annex VII arbitration tribunals need not fear them all that much.  On the other hand, this episode should put an end to the always silly argument that the US needed to join UNCLOS in order to use UNCLOS against China.  That was never really going to work, and we now have ample evidence.

So, How Does the Chinese Press Feel About the UNCLOS Arbitration?

by Julian Ku

W020130124366690332002For those of you wondering how seriously the Chinese media is taking the Philippines’ arbitration claim against China over the South China Sea (there must be at least two of you out there), here is an illustrative cartoon from a Chinese newspaper, “JingChu Times”, in Central China (although originally from another publication).

Although one doesn’t need to read Chinese to get the jist, here is my attempt to translate anyway.

The Foot is labeled: “Chinese Territory”

The Fish biting the Foot’s toe is labeled: “The Philippines”.  The Fish is holding a sign with the words: “Mine!”.

Yes, this Annex VII UNCLOS arbitration claim is really sending shock waves throughout China.

What Happens if China Tries to Boycott UNCLOS Arbitration? A Japanese Guy Gets to Appoint the Tribunal

by Julian Ku

[I know that what this blog needs is yet another post on the China-Philippines UNCLOS Arbitration! We aim to please!]

Steve Groves of Heritage asks in the comments to my prior post: What happens if China simply refuses to show up at the arbitration? Can an arbitral tribunal even be formed to rule on jurisdiction?

This is something that I’ve wondered too, and then I realized Annex VII of UNCLOS appears to settle this issue as well.  The key provision is Article 3 of Annex VII. Under Art. 3(b), the initiating party appoints an arbitrator, which the Philippines has already done.  Then,

(c) The other party to the dispute shall, within 30 days of receipt of the notification referred to in article l of this Annex, appoint one member to be chosen preferably from the list, who may be its national. If the appointment is not made within that period, the party instituting the proceedings may, within two weeks of the expiration of that period, request that the appointment be made in accordance with subparagraph (e).

(Emphasis added.).  Turning to Subparagraph (e):

(e) Unless the parties agree that any appointment under subparagraphs (c) and (d) be made by a person or a third State chosen by the parties, the President of the International Tribunal for the Law of the Sea shall make the necessary appointments.

(Emphasis added). Essentially, this means the President of ITLOS can fill out the rest of the arbitral tribunal if China tries to boycott, by appointing the remaining four members.  As Craig Allen of the University of Washington pointed out to me in an email, the current President of ITLOS is Shunji Yanai, a well-respected diplomat and jurist.  That is to say, a well-respected Japanese diplomat and jurist.  I’ve met President Yanai briefly, and he is a very smart and well-accomplished guy.  But Japan is just not on China’s BFF list right now.  China’s Weibo Internet commenters might well just blow up if this happens.

Professor Allen suggests that the President of ITLOS might, before appointing arbitrators, consider the jurisdictional objection and refuse to appoint a tribunal. I think this is a plausible, but not the most natural reading of Annex VII, Art. 3.  Professor Allen also raises a good point: China’s best friend here might well be the United States, which has a strong interest in seeing an expansive reading of the Article 298 exemptions.

In any event, the few Annex VII arbitral tribunals that have been constituted have generally not hesitated to rule on their own jurisdiction.  See Barbados v. Trinidad, or Guyana v. Suriname. (For a full list, see here).  Even worse from China’s perspective, these Annex VII arbitral tribunals issued their jurisdictional decision at the same time as they issued the award on the merits.  They don’t have to do so, and they can bifurcate the proceedings to address jurisdiction first.  But they don’t have to.

Would one of the journalists forced to sit through Chinese Ministry of Foreign Affairs press briefings please ask the spokesman to address the arbitral tribunal question?  Or at least, ask them again? Will China play the arbitral tribunal game and appoint someone by February 21?  Or will they let President Yanai appoint the tribunal for them?   The 30-day clock is running.

Game Changer? Philippines Seeks UNCLOS Arbitration with China Over the South China Sea

by Julian Ku

In a potentially huge development, the Government of the Philippines announced earlier today that it has filed for arbitration with China under the UN Convention for the Law of the Sea. The Philippines’ claim places China’s controversial sovereignty claim over the South China Sea (see right) squarely before an international arbitral tribunal convened under Article 287 of UNCLOS.  According to the Philippines Foreign Minister, here are the main claims:

  1. The Philippines asserts that China’s so-called nine-dash line claim that encompasses virtually the entire South China Sea/West Philippine Sea is contrary to UNCLOS and thus unlawful.
  2. Within the maritime area encompassed by the 9-dash line, China has also laid claim to, occupied and built structures on certain submerged banks, reefs and low tide elevations that do not qualify as islands under UNCLOS, but are parts of the Philippine continental shelf, or the international seabed.
  3. In addition, China has occupied certain small, uninhabitable coral projections that are barely above water at high tide, and which are “rocks” under Article 121 (3) of UNCLOS.China has interfered with the lawful exercise by the Philippines of its rights within its legitimate maritime zones, as well as to the aforementioned features and their surrounding waters.
  4. The Philippines is conscious of China’s Declaration of August 25, 2006 under Article 298 of UNCLOS (regarding optional exceptions to the compulsory proceedings), and has avoided raising subjects or making claims that China has, by virtue of that Declaration, excluded from arbitral jurisdiction.

Some early thoughts.  As I argued here, I still think the Philippines has a massive jurisdictional problem because of China’s Article 298 declaration excludes the following certain subjects from this kind of arbitration.

(a)(i) disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles….

China is claiming (at least it has often seemed to be claiming) that it has complete sovereignty over the South China Sea (per the map above). I take the Philippines is arguing that China’s South China Sea claim is not really a “sea boundary  delimitation” within the meaning of Article 15.  Nor is the Chinese SCS claim about “historic bays” and “titles”.  I don’t think that the Philippines has a hopeless case, but I do think they will face a huge challenge to get any arbitral tribunal to assert jurisdiction here, especially since one judge will be appointed by China.

On the plus side, if the Philippines manages to get past the jurisdictional hurdle, it seems to me that they have a very good chance of prevailing since China’s claim is hard to square with the rest of UNCLOS.  Moreover, they force China to go on the defensive here without actually threatening China in any military or economic way.

Strategically, I think I understand why the Philippines has filed this claim. They have very little leverage with China: economically, politically, or militarily.  In this forum, the worst case scenario is the Philippines will lose on jurisdiction. This shouldn’t affect the merits of their claims, though.  For China, the worst case scenario is that it loses on the merits and would have to face the decision of whether to comply with the tribunal.  If they lose, I can see China simply withdrawing from UNCLOS.

In any event, I think it is safe to say this it a game changer in the long-running South China Sea dispute.  It is also, without question, the most important case that has ever been filed under the dispute resolution procedures of UNCLOS.  It will be a crucial test of the UNCLOS institutions, as well as of UNCLOS members.  I am skeptical that China will allow itself to be drawn into serious international adjudication (see my argument here), but it will be fascinating to see how China reacts.

Law of the Sea Tribunal Resoundingly Affirms the Sovereign Immunity of Warships and Orders Ghana to Release Argentine Tall Ship ARA Libertad

by Craig Allen

[Craig H. Allen is the Judson Falknor Professor of Law at the University of Washington in Seattle.]

On December 15, 2012, one phase of the dispute between the Argentine Republic and the Republic of Ghana over the “seizure” of the Argentine frigate ARA Libertad while in a Ghanaian port came to an end, when the International Tribunal for the Law of the Sea (ITLOS) in Hamburg, Germany ordered Ghana to “forthwith and unconditionally release the frigate ARA Libertad” and to “ensure that the frigate ARA Libertad, its Commander and crew are able to leave the port of Tema and the maritime areas under the jurisdiction of Ghana, and … that the frigate ARA Libertad is resupplied to that end.” (See Order of 15 December 2012).

The order came just one month after Argentina filed its application for provisional measures with the ITLOS. The tribunal’s decision—which should receive a warm welcome in the Pentagon—sends a clear message on the principle of sovereign immunity of warships and the readiness of ITLOS to enforce that immunity even when the warship is in the port or internal waters of another state—at least if the involved states are party to the 1982 LOS Convention.

The dispute between the two states has its roots in Argentina’s 2001 default on roughly $100 billion in sovereign debt, reportedly the largest sovereign default in history. NML Capital Investments, which owns some $1billion in Argentina’s sovereign debt, obtained judgment in a New York federal district court for $284 million in 2006. The U.K. Supreme Court later upheld NML’s right to execute its judgment against Argentina’s assets in the U.K. (NML Capital Ltd  v Republic of Argentina, [2010] EWCA Civ. 41, aff’d, [2011] UKSC 33), a decision extensively relied on by agents for Ghana during oral argument at the ITLOS.

Draft Republican Party Platform Opposes Law of the Sea Treaty

by Julian Ku

It is a draft platform, but these parts of the 2012 GOP Platform are certainly interesting. It appears to have strong language in favor of “American Exceptionalism” and American sovereignty.

Under our Constitution, treaties become the law of the land. So it is all the more important that the Congress — the senate through its ratifying power and the House through its appropriating power — shall reject agreements whose long-range impact on the American family is ominous or unclear. These include the U.N. Convention on Women’s Rights, the Convention on the Rights of the Child, the Convention on the Rights of Persons with Disabilities, and the U.N. Arms Trade Treaty as well as the various declarations from the U.N. Conference on Environment and Development. Because of our concern for American sovereignty, domestic management of our fisheries, and our country’s long-term energy needs, we have deep reservations about the regulatory, legal, and tax regimes inherent in the Law of the Sea Treaty and congratulate Senate Republicans for blocking its ratification. We strongly reject the U.N. Agenda 21 as erosive of American sovereignty, and we oppose any form of U.N. Global Tax.

Unlike Josh Keating, I don’t read this platform as “black helicopter” stuff.  I think there are reasonable policy arguments against all of the above treaties, especially UNCLOS.  I do agree, though, that this might herald an important policy shift. A majority of the GOP has previously supported US ratification of UNCLOS, but it looks like UNCLOS opposition is now going to be in the GOP mainstream.  And that means that US ratification of UNCLOS looks even more unlikely.

US Will Not Join the Law of the Sea Treaty (At Least Not This Year)

by Julian Ku

It’s official. US ratification of UNCLOS is dead (at least for this year).  And, perhaps more significantly, the treaty was sunk by two senators, Robert Portman and Kelly Ayotte, both of whom appear to be on Republican nominee Mitt Romney’s vice-presidential short list.  Their announcements, in a letter to Senate Majority Leader Harry Reid, brings the number of announced U.S. Senators opposing US ratification to 34.  This effectively kills UNCLOS for this Congress.

The joint letter by Senators Portman and Ayotte cites most of the same objections set forth ably by Jeremy Rabkin and Steve Groves last month here at Opinio Juris.  The letter is skeptical of the fairness of the system of international dispute resolution set out by UNCLOS and worried about litigation under the ITLOS system or even in the ATS context. It is also skeptical of the ability of the Authority to fairly set forth rules and to administer the resources it will control.

The letter does throw in an argument that I’ve made in other contexts (and cites me in a footnote!): that the Seabed Disputes Chamber of the International Tribunal on the Law of the Sea may have unconstitutionally broad judicial powers to require enforcement of its judgments in US domestic courts.

The letter concedes, however, that there are substantial benefits of joining UNCLOS to the US Navy and to US commercial interests in exploiting undersea natural resources. But as to the first, it argues that the US government and navy can protect its navigation rights better than (or at least as well as) the UNCLOS system.  Intriguingly, the letter also points that commercial undersea development can still be protected via bilateral agreements, which has been done in the past (something Steve Groves has suggested).

I am still not totally sold on the practicability of this approach, but I do think that the next administration, whomever is elected, should explore such bilateral alternatives.  UNCLOS may be a great idea, but it is not going to be ratified by the US Senate in the foreseeable future. Time for oil and natural resources interests in the US to get a Plan B.

Even More on the UN Convention on the Law of the Sea: Follow the Money

by Julian Ku

Today, I hear there is going to be some decision from the U.S. Supreme Court on health care, or something.  But there is something almost as cool going on down at the other end of the Mall: Sen. John Kerry’s latest effort to win Senate advice and consent for the U.N. Convention for the Law of the Sea (and the job as the next U.S. Secretary of State) by holding a SFRC hearing.

Today, the topic is going to be money, not sovereignty or national security. I think this is by far the strongest argument that treaty proponents have in their favor. As we learned last week during the exchange between Steve Groves and John Noyes, there is a real difference of opinion on whether the UNCLOS provisions regulating the development of undersea resources are necessary or desirable. As a refresher, here is Steve’s argument on this point:

UNCLOS and Dispute Settlement: A Response to Professor Rabkin

by John Noyes

[John E. Noyes is the Roger J. Traynor Professor of Law at California Western School of Law.]

I do not share Professor Rabkin’s pessimistic view of the prospect of international arbitration of law of the sea disputes under the Law of the Sea Convention.  LOS Convention tribunals and the law of the sea experts who serve as judges and arbitrators have helped to resolve disputes peacefully and to reinforce Convention rules.  For example, in the merits stage of the M/V “Saiga” (No. 2) case, the International Tribunal for the Law of the Sea (ITLOS) – which had jurisdiction only because the countries involved specially agreed; arbitration would normally be the third-party forum – reaffirmed navigation rights in the exclusive economic zone (EEZ), in the face of a coastal state’s attempt to exercise creeping EEZ jurisdiction that was not permitted under the LOS Convention.  During the negotiation of the LOS Convention the United States supported compulsory third-party dispute settlement in large part because it could help reinforce Convention rules important to the United States.  Although the functions of international third-party compulsory dispute settlement treaty provisions and tribunals are nuanced and varied, we should not lose sight of the stabilizing role of the LOS Convention’s dispute settlement provisions.

UNCLOS: Why the Precedents for Compulsory Arbitration Aren’t Reassuring

by Jeremy Rabkin

[Editors Note: We inadvertently posted the incomplete version of this post by Jeremy Rabkin this morning. This post has his response to Prof. Noyes earlier post today. Sorry for the confusion.]

[Jeremy Rabkin is Professor of Law at George Mason University School of Law.]

Craig Allen has performed a valuable service by reporting the range of sea-related treaties where we have already committed to compulsory arbitration.   What strikes me is that these are all quite limited, narrow-gauge agreements.   If we were dissatisfied with arbitration rulings on these agreements, we might easily announce that we were withdrawing, without causing great tumult in the international community — or warnings that we were doing great harm to American interests.  These agreements look more like the Optional Protocol to the Vienna Convention on Consular Relations, from which President Bush had no trouble withdrawing, when we were unhappy with ICJ rulings on that narrow subject.   I don’t think that experience proves we can shrug off concerns about committing to compulsory arbitration for the whole bundle of issues covered in the Law of the Sea treaty.  There is a reason proponents called it a “Constitution for the Oceans.” Having committed to a “constitution,” it is not so easy to walk away from it.

Regarding ITLOS and “prompt release,” I agree with Professor Allen that the wording of Article 113(1) of the amended rules of the tribunal supports a narrow reading of the “prompt release” jurisdiction in Art. 292 of UNCLOS.   But the language of 292 itself supports a narrow reading.  That did not prevent the tribunal’s majority from opening the door to what it called an “unrestricted interpretation” in the Saiga case.  That’s what the dissenters protested at the time.  Unfortunately, they were in the minority.  The fact that the court’s judgment ultimately relied on other arguments does not change the fact that the majority put the “unrestricted interpretation” on the table – without saying a word against it.

Similarly, I agree with Prof. Noyes that language in the subsequent Camouco case supports a restrictive reading of Art. 292, but it is hardly a definitive repudiation of the “unrestricted interpretation.”  It is one sentence and rather ambiguous in its wording.  Since it does not expressly repudiate the Court’s previous expression of openness to the “unrestricted interpretation,” it might be read as leaving the issue open.  To preserve this possibility, Judge Laing argued in his “declaration” in Camouco that “there cannot be any gainsaying that prompt release is also reinforced by its significant humanitarian underpinnings … [including] the civil rights or concerns of detained crews.”  It may not prove easy to restrict “humanitarian underpinnings” to a narrow class of commercial fishing disputes.  Professor Noyes notes that all the “prompt release” cases so far have dealt with disputes about fishing boats violating local conservation rules.  It doesn’t follow that there can never be a different kind of case.  It certainly doesn’t follow that ITLOS will disclaim jurisdiction when such a case arises.

My point is not that ITLOS is sure to over-reach in future cases, but that there remains a risk that it will. It’s easy to imagine an international outcry at the seizure of sea-borne terrorist suspects by the U.S. Navy.   Given the chance to win international acclaim, international judges may not have much patience for subtle interpretations of treaty provisions in UNCLOS.   Most critics of U.S. practices at Guantanamo have not bothered to contend with textual restrictions on the reach of the Geneva Convention on Prisoners of War. I do not think it is wise to empower an international court to second-guess U.S. naval practices.  Professors Noyes and Allen rely on a more optimistic view.   I don’t see that such optimism is justified by the record of other international tribunals, like the International Court of Justice.