Misinformed Attacks on the Law of the Sea

While tidying my desk, I found a clipping from the Economist in mid-May, advocating U.S. ratification of the UN Convention on the Law of the Sea.  (Yes, it was a wood desktop, not a LED screen, and the clipping was made of paper, not electrons.  Call me old-fashioned!)  The Economist makes a compelling case for ratification based on the needs of the ocean and U.S. national interest.  The Economist is hardly starry-eyed about international cooperation (or environmental protection for that matter), so that endorsement should carry a lot of weight.  But the holdup in the Senate relates less to the practical impact of the treaty and more to concerns about U.S. sovereignty (apparently based on the assumption that other countries didn’t care about their sovereignty when they signed the treaty.)

I did some browsing  — on the web, not at the library this time — to find out more about the objections.  By accident, I found a speech by Senator Lugar endorsing the treaty in 2007, further evidence of its soundness.  But I also did find some contrary voices.  The objection seems to be to the dispute resolution provisions of the treaty, which provide for binding resolution by international tribunals.  The trouble, of course, is that other treaties — including most notably international trade law under the WTO — also provide for mandatory dispute resolution.  (Of course, these sanctions are only mandatory in the sense that if you don’t obey, you have a choice between accepting whatever sanctions that the treaty provides or renouncing the treaty.)

I found a response in the American Spectator to this argument, which was astoundingly ill-informed:

It is one thing to submit trade disputes to international referees. It is quite another to submit to international bodies the right to decide if our own internal laws meet their shifting bureaucratic standards. The latter is a far more dangerous proposition.

The kindest thing to say about this response is that it reflects complete ignorance of trade law.  In fact, WTO rules do apply to internal American laws, which are subject to attack if they burden or discriminate against international trade. Not to mention the TRIPS agreement, whose entire purpose is to force countries to change their internal laws governing copyrights and patents. 

My theory is that it’s really the appearance of the word “Law” in the name of the treaty that is setting off conservative alarms, because they don’t like the idea of the U.S. being legally restricted through the treaty process.  They’d probably be even more upset if they realized that the Constitution makes each and every treaty — even treaties with the Russians or the Chinese or (shudder) the French — part of “the Supreme Law of the Land.”


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About Dan

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

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