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

[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.