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The Law of the Sea, a Litigator's Dream

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.”

Lawrence Kogan of the Institute for Trade, Standards, and Sustainable Development reviewed the text, warning that a number of provisions created potential causes of action and could “be used to commence litigation against the U.S.” in international forums. And there will be ample plaintiffs to file lawsuits. Warned Steven Groves of the Heritage Foundation, “With the support and encouragement of environmental activists and legal academics, some nations are actively exploring the possible use of international litigation to impose their favored environmental standards on large emitters of greenhouse gases, particularly the United States.”

U.S. environmental groups are not so impolitic to make this argument publicly, though they contend that LOST reaches well beyond the high seas. For instance, Citizens for Global Solutions and the World Wildlife Federation have sought to build support for the convention by claiming that it would help stop Russian pollution in the Arctic. Of course, this argument means that the treaty would similarly apply to the United States. Making such a claim led one activist to worry privately that it would be harder to allay “conservative fears” of the treaty being “some kind of green Trojan Horse.”

However, others openly advocate making the treaty just that. William C.G. Burns, a professor at Monterey Institute of International Studies, celebrated the fact that “several States and peoples in recent years have begun to contemplate, or have taken active steps to initiate, actions against States or private actors” in a variety of international forums, including LOST, which, he wrote, “may prove to be one of the primary battlegrounds for climate change issues in the future.” How? Burns believed that “the potential impacts of rising sea surface temperatures, rising sea levels, and changes in ocean pH as a consequence of rising levels of carbon dioxide in sea water” could “give rise to actions under the Convention’s marine pollution provisions.”

Ratifying countries never intended to create this sort of liability, but so what? Explained Burns: “While very few of the drafters of UNCLOS may have contemplated that it would one day become a mechanism to confront climate change, it clearly may play this role in the future. At the very least, the specter of litigation may help to deepen the commitment of States to confront the most pressing environmental issue of our generation.”

Judgments of the Tribunal, no matter how legally deficient or ideologically compliant, would have the force of law. Article 296 of LOST states that “Any decision rendered by a court or tribunal having jurisdiction under this section shall be final and shall be complied with by all the parties to the dispute.” That means in U.S. courts. According to Article 39 of Annex VI, decisions of the Seabed Disputes Chamber “shall be enforceable in the territories of the States Parties in the same manner as judgments or orders of the highest court of the State Party.”

In the 2008 case Medellin v. Texas, the U.S. Supreme Court rejected a challenge to a criminal conviction after the state failed to fulfill the Vienna Convention on Consular Relations. The majority held that the violation did not constitute “directly enforceable federal law.” However, in a concurring opinion Justice John Paul Stevens cited LOST as an example which did “incorporate international judgments into domestic law.”

Even victory could be costly. Kogan observed that “whether or not an adverse ruling is secured, such other LOST party could help to shape/influence future U.S. governmental legislative and/or regulatory action.” Moreover, warned Groves: “the U.S. might nevertheless be forced to defend itself in a costly and politically embarrassing lawsuit challenging the sufficiency and enforcement of U.S. domestic environmental law and regulations.”

So far we’ve only seen the tip of the iceberg of possible litigation. What plans are potential litigants hiding until Washington ratifies the treaty? They know that silence is golden. Years ago, Bernard Oxman wrote in the European Journal of International Law urging treaty proponents to keep quiet about issues which might concern ratifying governments, calling for “restraint in speculating on the meaning of the convention or on possible differences between the Convention and customary law.”

After all, he explained, “The Convention is an easy target.” Thus, advocates should shut up: “it is essential to measure what we say in terms of its effect on the goal. Experienced international lawyers know where many of the sensitive nerve endings of governments are. Where possible, they should try to avoid irritating them.”