The Law of the Sea, a Litigator's Dream

There is no reason to tie freedom of navigation to financial redistribution, environmental protection or the empowerment of judicial politicians.

With Sen. John Kerry tapped to be the next secretary of state, continuity is likely for most policies. This includes pressing for ratification of the Law of the Sea Treaty (LOST). It’s a bad idea, as the International Tribunal on the Law of the Sea has helpfully reminded Americans.

LOST is an omnibus agreement covering seabed mining, navigation, fishing, the environment and more. The benefits, for ocean transit, for instance, have been exaggerated. The convention largely codifies customary international law. After President Ronald Reagan rejected the treaty in 1982, use of the oceans did not dissolve into armed chaos.

Unfortunately, there are far more negatives to the treaty. The agreement originally was concocted as part of the New International Economic Order, through which Third World governments sought large-scale income redistribution from the West. Toward that end LOST created a bizarre Rube Goldberg regulatory system run by the International Seabed Authority, headquartered in Jamaica. The Enterprise, created to mine the seabed for the Authority, then was supposed to extract resources on behalf of “mankind” and transfer the money to the parts of mankind lucky enough to control the ISA.

The Clinton administration won some changes to the text, but the result was merely to moderate and obfuscate LOST’s worst faults. For instance, the original convention mandated technology transfer to the Enterprise and Third World nations.

The rewrite deletes some requirements, keeps other provisions, and adds new language. How all this would be interpreted, most importantly by the International Tribunal, its subsidiary Seabed Disputes Chamber, and UN arbitration panels, is anyone’s guess. The Tribunal’s latest decision suggests that rulings likely would go against private companies and Western governments.

A decade ago Argentina welshed on its debts. Long home to populist extremists from Juan Peron to current President Cristina Fernandez de Kirchner, the country nevertheless issued debt in America and waved sovereign immunity. But spendthrift Buenos Aires then decided that it didn’t want to pay its debts.

Most international creditors took a financial bath and accepted a confiscatory settlement. But a few refused to do so and one U.S. investment fund, NML Capital, has been pursuing Argentine assets around the globe, including the ARA Libertad, a three-masted schooner used to train naval cadets. The boat put into port in Ghana, where NML Capital promptly filed suit. Judge Richard Adjei-Frimpong ordered the ARA Libertad held subject to the posting of a cash bond.

Rather than comply, Argentine lawyers file suit before the International Tribunal for the Law of the Sea, “a body which has resolved an average of less than one case a year, most of them having to do with fisheries disputes, in the two decades it has existed,” according to J. Peter Pham of the Atlantic Council. The Tribunal ordered the boat’s release, ignoring the judicial process (Judge Adjei-Frimpong’s ruling was on appeal) and the facts (Argentina’s voluntary and unambiguous waiver of sovereign immunity).

Worse, the Tribunal sailed from the high seas to territorial waters to assert its authority. LOST never was intended to allow unknown jurists on an obscure panel to use provisions covering ocean controversies to trump national law over a commercial dispute. Pham worried that the decision “will have a chilling effect on the efforts to secure ratification of UNCLOS by countries like the United States.” As it should.

What nation would have ratified the convention had it known that doing so would subject its domestic legal and political processes to the control of activist international judges? Especially when the judges aren’t real judges. The Tribunal has been used to provide sinecures for diplomats and politicians chosen to ensure “equitable geographical distribution.”

Yet it isn’t the first time that litigants have twisted the treaty into a legal pretzel. For instance, a decade ago Ireland sued Great Britain under LOST over pollution emanating from land. (After the European Union got involved, Ireland terminated the proceedings in 2008.)

But then, in 1994 Deputy Secretary of State Warren Christopher called LOST “the strongest comprehensive environmental treaty now in existence or likely to emerge for quite some time.” Article 207 holds that “States shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment from land-based sources.” States also “shall take other measures as may be necessary to prevent, reduce and control such pollution.” What laws, regulations, and measures are sufficient to satisfy the treaty?

The treaty is filled with verbiage with uncertain effects that offers abundant ammunition to talented attorneys. LOST supporter Bernard Oxman of the University of Miami admitted: “Like many complex bodies of written law, it is amply endowed with indeterminate principles, mind-numbing cross-references, institutional redundancies, exasperating opacity and inelegant drafting.”

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