22 Jul 2007 Law of the Sea Treaty Unconstitutional?

Julian Ku, writing on the Opinion Juris blog, says Article 39 of Annex VI of the Law of the Sea Treaty may be unconstitutional:

I believe this provision, Art. 39 of Annex VI, does raise a real potential constitutional issue. This provision refers to the effect of decisions of the Seabed Disputes Chamber, a portion of the International Tribunal for the Law of the Sea authorized to settled disputes over seabed rights…Here is the provision in its entirety:

Article 39 Enforcement of decisions of the ChamberThe decisions of the 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 whose territory the enforcement is sought.

As I argued at length here, this provision appears to require U.S. courts to give more than “full faith and credit” to judgments of this international chamber. Rather, it requires a U.S. court to treat such chamber decisions as equivalent to those of the U.S. Supreme Court. As far as I know, no prior treaty has ever committed the U.S. in quite this emphatic way. And I do think this provision raises real and serious U.S. constitutional questions about the excessive delegation of judicial power under Article III……[The State Department’s] Their solution is to request the Senate attach a declaration to its advise and consent papers declaring this provision is “non-self executing.” This means that Congress would have to act to subsequently pass legislation giving effect to this provision.

But even this solution is not free of problems. First of all, UNCLOS art. 309 appears to prohibit any reservations and exceptions, which might be read to nullify any non-self execution declaration. Second of all, even if Congress passed subsequent legislation, this would help (but not completely resolve) the constitutional question of whether Congress can require federal and state courts (and maybe the U.S. Supreme Court) to treat an international tribunal judgment as binding precedent…

Some commenters to his post disagree.