A friend/colleague emailed me the other day to ask my opinion about the Law of the Sea Treaty. My response:

"I haven't been following it very closely, but I know the general details. To be honest, I'm not sure I understand what the fuss is about. My thinking on this and related topics was turned around by teaching the Rome Treaty and the ICC this past semester: if you look at the text of the Treaty, and the powers that are granted to the Prosecutor, they really are as broad and unlimited as American commentary against the Treaty would suggest: the Prosecutor has nearly unlimited power to do what he wants and can continue to investigate as long as he wants--no one can definitively and finally stop him. But that level of power is necessary because without it, it'd be impossible to get even a minimal level of compliance. The Thomas Lubanga case is a good example: the Prosecutor had to threaten to use his proprio motu power to start his own investigation unless the DRC agreed to help him out, and this was to get the DRC to agree to get rid of someone they didn't want to have to deal with themselves. And the Prosecutor wasn't going to get very far without the DRC's help, proprio motu powers or not. So in general, the practical limitations of politics do a lot of work and have to be figured into an analysis of the law itself, and we shouldn't rely only on the worst case scenario.

I think the LotS treaty is similar: I understand the concern about submitting disputes to arbitration, but 1. there are already widespread and accepted international arbitration boards for private economic questions, which mostly proceed without incident (Chris Whytock, who you may remember, has done a lot of work on these) and 2. if the relevant difference between public and private arbitration is the role that politics plays in the public version (and I'd assume this to be the relevant difference) politics is mostly going to play itself out in ways that make the arbitration process more conservative and small-scale, rather than larger or bolder. China, for example, is not going to accept or seek a ruling that weakens the U.S. now but might hurt it in the future. And there is also, always, the possibility of simply ignoring results we don't like, as has been known to happen with the ICJ..."

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