Sunday, June 29, 2008

The Supreme Court agreed last week to hear an appeal in Winter v. NRDC. The case concerns injunctions forcing the U.S. Navy to discontinue use of sonar detection systems off the California coast, because environmental advocates fear the sonar will injure marine mammals like dolphins.

The risk to dolphins is disputed. Meanwhile, the government claims that training naval crews with sonar detection devices is crucial preparation for war at sea. The relevant environmental statute does provide an exemption for military measures, but the lower courts decided training activities were not urgent enough to qualify for it. Now the Supreme Court will decide whether courts should heed the military experts or the environmental advocates.

The odds are good that the Supreme Court will heed the arguments pressed on behalf of the Navy. The Supreme Court often overrules overreaching by the left-leaning U.S. 9th Circuit Court of Appeals, which is based in San Francisco.

But what if the previous ruling against the Navy hadn’t come from a lower federal court but from an international tribunal? Would our own Supreme Court then have to go along? The answer might well be yes, if the United States ratifies the U.N. Convention on the Law of the Sea (UNCLOS), as the Senate Foreign Relations Committee has urged.

UNCLOS establishes an international seabed authority with power to promulgate standards for the protection of “resources” in or under the high seas, including animal life. UNCLOS allows this authority or other states to make claims against a signatory that fails to honor protective standards. If such disputes can’t be resolved voluntarily, they can be brought to the International Tribunal for the Law of the Sea or to a special arbitration panel, whose key members would be chosen by international authorities.

The Law of the Sea treaty makes participation in such proceedings “compulsory.” That means the tribunal or the arbitration panel can go ahead even if the charged party thinks the proceedings are improper or inappropriate in the circumstances. States can invoke an exemption for “military activities.” But since that term is not defined in the treaty, it will be up to international authorities to say when it applies. They are most unlikely to read this exemption as broadly as the United States would like to do.

What happens if an international court takes a different view of U.S. naval practices than we do? We got a disturbing hint in March from the Supreme Court. In Medellin v. Texas, the court ruled Texas courts were not bound to obey a decision of the International Court of Justice.

The ICJ had ordered Texas not to execute a Mexican national, because his conviction for murder) was obtained without notifying Mexican consular officers of the trial (as required by an international treaty on consulates, which the United States has long embraced.).

A majority of the Supreme Court agreed that Texas was not bound by the ICJ ruling. But no justice said Texas could never be bound to obey an international tribunal. Three dissenters insisted the ruling of the ICJ should now have been treated as binding law within the U.S. legal system. The majority simply held that the treaty which allowed Mexico to pursue its dispute over Medellin’s case did not make clear it would be “self-executing” - that is, given direct, binding effect within the U.S. legal system.

Even the majority acknowledged that some treaties could operate this way, so long as language in the treaty (confirmed or not contracted by the U.S. ratification resolution) indicated an intention to give it direct effect in domestic law.

Will the Convention on the Law of the Sea work this way? Justice John Paul Stevens, in a concurring opinion, pointed to provisions in UNCLOS which, he said, clearly indicated decisions of the Law of the Sea tribunal must be treated as binding by U.S. courts. No other justice challenged that claim. The matter is still uncertain, but Medellin suggests a majority of justices may already be ready to treat decisions of international courts or arbitration panels as binding authority for U.S. courts.

If we do ratify UNCLOS and we find there are lots of problems from letting its tribunals dictate U.S. law, Congress might try to enact legislation directing U.S. courts not to adhere to international rulings in this area. But that would probably provoke a great deal of condemnation from foreign governments, protesting American bad faith.

The United States might try to withdraw from UNCLOS altogether. But that response would surely provoke intense international controversy, too.

Here’s a suggestion: Why don’t we look more carefully before committing to this treaty? The Senate Foreign Relations Committee has persuaded itself that the treaty is good for foreign relations. Why not have the armed services committees in both houses consider what changes the treaty might impose (or require us to make) in activities of the Navy?

Why not have congressional committees with jurisdiction over environmental protection and commerce look at other implications?

We have had some recent warning lights. At the very least, we shouldn’t ratify this treaty without giving U.S. courts more direction from Congress about what - or who - it would commit them to heed.

Jeremy Rabkin is a professor of international law and constitutional law at George Mason University. Ben Lerner is senior research associate at the Center for Security Policy.

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