Thursday, July 12, 2007

Lost in the LOTS

Shall we?
The Bush administration is urging the Senate to consent this summer to the Convention on the Law of the Sea, the complex and sprawling treaty that governs shipping, navigation, mining, fishing and other ocean activities. This is a major departure from the administration's usual stance toward international organizations that have the capacity to restrain U.S. sovereignty. And it comes in a surprising context, since the convention has disturbing implications for our fight against terrorists.

Deputy Secretary of State John D. Negroponte and Deputy Defense Secretary Gordon England maintain that the convention will enhance U.S. security. They argued in the Washington Times last month that to meet the "complex array of global and transnational security challenges," the United States must have "unimpeded maritime mobility -- the ability of our forces to respond any time, anywhere, if so required."
Interesting. Does it really do that?
If the United States ratifies the Convention on the Law of the Sea, the legality of such seizures will, depending on the circumstances, be left to the decision of one of two international tribunals.
In every case, a majority of non-American judges would decide whether the U.S. Navy can seize a ship that it believes is carrying terrorist operatives or supplies for terrorists.
Do you trust your security to a gaggle of judges from hostile, non-democratic nations?
International tribunals would still have the last word on the validity of the U.S. condition and the resulting scope of permissible U.S. naval actions.

Supporters note that many of the treaty's "freedom of the seas" provisions favor U.S. interests. But the United States already receives the benefits of these provisions because, as Negroponte and England acknowledged, they are "already widely accepted in practice." They maintain that ratifying the convention would nonetheless provide "welcome legal certainty." In recent years, however, the United States has not received much legal certainty from international tribunals dominated by non-American judges, and what it has received has not been very welcome. There is little reason to expect different results from these tribunals.

President Bush invokes a different rationale for ratifying the convention, arguing that it would "give the United States a seat at the table when the rights that are vital to our interests are debated and interpreted." What this really means is that American views of the law of the sea, even on issues related to national security, could be outvoted by a majority in an international forum. How can this make us safer?
The Administration is incorrect when it comes to the LOTS. The authors of this article, Jack Goldsmith teaches law at Harvard and was an assistant attorney general from 2003 to 2004. Jeremy Rabkin teaches law at George Mason University, put it well.

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