Charney brings scholar's view to international treaties

by Ann Marie Deer Owens

When Professor of Law Jonathan I. Charney helped to develop the U.S. position on an international treaty for ocean activities, he never imagined that his nation would be one of the last to approve the resulting 16-year-old agreement. Charney served as a member of the U.S. delegation that negotiated the 1982 United Nations Convention on the Law of the Sea.

President Clinton recently urged the Senate to consent to the ratification of the stalled international treaty, warning that if the lawmakers do not act by November, the United States may not be able to join with other nations in setting new rules for deep seabed mining and participating in other developments in the law of the sea.

Charney, who serves as one of the two editors-in-chief of the prestigious American Journal of International Law, said that retrieving valuable minerals from the international seabed is only one of the issues at stake for the United States.

"This international agreement is critical to the global environment, management of natural resources, marine scientific research, national security and international dispute settlement," Charney said. "Our nation's mobility overseas by aircraft, ships and submarines is extremely important for U.S. defense. The armed forces and others have put forth strong arguments that the United States is damaging itself economically, politically and militarily by not becoming a party to the Convention."

(Below) Professor of Law Jonathan Charney: His research addresses the future of international law as a legal system. "Some believe that a multiplicity of international tribunals threatens the viability of international law. . . . I argue that, in fact, there is a community of international law tribunals. They listen to each other, reference each other's decisions and most often find and apply international law that is consistent.." Photo by Billy Kingsley

He noted that 125 developed and developing nations are parties, leaving the United States rather isolated.

Charney, a graduate of the University of Wisconsin School of Law, has been working on the law of the sea since the late 1960s. While serving as an attorney and section chief in the Land and Natural Resources Division of the U.S. Department of Justice, he helped develop the Nixon administration's negotiating position for the law of the sea conference that guided U.S. policy during succeeding administrations. After joining the Vanderbilt faculty in 1972, Charney served as a member of the U.S. delegation that negotiated the 1982 United Nations Convention of the Law of the Sea.

Although the United States was a leading participant in those negotiations, the Reagan administration rejected the treaty because it considered provisions for retrieving minerals from the deep seabed to be unacceptable.

Some believe that these minerals could be worth trillions of dollars, although deep seabed mining is not economically feasible today and will not be feasible for the foreseeable future. According to Charney, there were concerns that the law for the deep seabed found in the 1982 treaty was not sufficiently based on free market and capitalist principles. Accordingly, some potential deep seabed mining companies found aspects of the deep seabed regulations unacceptable.

The 1982 agreement established the International Seabed Authority, which would administer the conduct of deep seabed mining, and established the Enterprise, an internationally run business organization that would mine deep seabed minerals on behalf of the international community directly or through joint ventures with private companies or states.

U.S. private industry feared that the Enterprise would dominate deep seabed mining and force the transfer of technology developed by private industry to it.

The 1994 agreement weakened the role of the Enterprise and provided greater protections for privately held technology. "Most people believe that the adjustments that the Clinton administration negotiated resolved the earlier problems," Charney said. However, so far the Senate Foreign Relations Committee has declined to allow the agreement to come to the floor of the Senate for a vote on the consent to ratification. Charney believes that if the Senate were to vote on the treaty, it would obtain the necessary approval.

In addition to his extensive work on the Convention of the Law of the Sea, Charney has been a frequent consultant to the United States and foreign governments in connection with international boundary disputes and other issues. His work with the American Journal of International Law brings the publishing of the most respected journal in the discipline of international law to the Vanderbilt law school, since the journal's main editorial offices are now located on campus. This spring Charney was elected to serve as one of the two editors-in-chief of the journal. The other is W. Michael Reisman, the Wesly N. Hohfeld Professor of Jurisprudence at the Yale Law School.

In August Charney will present a series of lectures at the Hague Academy of International Law on "The Multiplicity of International Tribunals and the Universality of International Law."

The Hague Academy is celebrating its 75th year of annual lectures by leading authorities in international law. Charney's lectures will be the culmination of three years of international law research in preparation for the lectures.

Charney said that there has been a recent trend to establish new international tribunals that supplement the work of the International Court of Justice. Examples include the Iran-U.S. Claims Tribunal that arose out of the U.S. hostage crisis in Iran, the World Trade Organization (formerly the General Agreement on Tariffs and Trade) dispute settlement panels, the European Court of Justice, the European Court of Human Rights and the Inter-American Court of Human Rights, as well as many ad hoc tribunals.

Charney conducted a comparative law study of several international tribunals in order to determine whether they "are going off on frolics of their own by developing unique versions of the international law or whether they are using similar rules of law such that their decisions are relatively compatible."

His research addresses not only the power of the International Court of Justice, but also the survival of international law as a legal system. "Some believe that a multiplicity of international tribunals threatens the viability of international law because each tribunal would develop its own views on what the rules of international law are," Charney said. "I argue that, in fact, there is a community of international tribunals. They listen to each other, reference each other's decisions and most often find and apply international law that is consistent."

Charney has documented situations where one tribunal will develop innovative rules of law that have been followed by the other tribunals. This is similar to what happens in domestic U.S. courts when state courts or lower federal courts develop new approaches to the law that ultimately become accepted across the nation.

Charney argues that the increase in the number of international tribunals is beneficial to international law because the International Court of Justice is overburdened and cannot handle a heavy volume of cases. "These other tribunals are providing forums for deciding cases on the basis of international law, and at the same time contributing to the body of authoritative rulings on that law, " he said. "I believe that we are witnessing a community development of international law among the international tribunals; as a result, a stronger international legal system is developing."

Professor Charney's lectures will be published in the collected proceedings of the Hague Academy of International Law.

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