The American Spectator

Attention at Condoleezza Rice’s confirmation hearing focused on Iraq, but that was not the only policy discussed. Senate Foreign Relations Committee Chairman Richard Lugar (R-Ind.) pressed the soon-to-be Secretary of State on the obscure but important Law of the Sea Treaty (LOST). Ms. Rice responded that the President “certainly would like to see it pass as soon as possible.”

One of President Ronald Reagan’s notable achievements was derailing the omnibus convention. But Secretary Rice argued that the treaty “serves our national security interests, serves our economic interests. We very much want to see it go into force.”

In fact, the U.S. should sink LOST today as it did in 1982.

The treaty has been styled as a constitution of the oceans. The expansive agreement ranges across environmental, fishing, navigation, and resource issues.

LOST is enormously complex. Many of its provisions are uncontroversial. Some are ambiguous, generating debate over their likely effects. Unfortunately, a number of them are pernicious.

The treaty was largely developed in the 1970s and is a relic from that very different time. LOST was pushed by the Third World, supported by the Soviet bloc, to mulct wealth and technology from the industrialized West. Only President Reagan’s willingness to confront the “international community” by rejecting the convention saved the U.S. from signing away access to the entire seabed.

Unfortunately, however, bad treaties never seem to go away. Even under Reagan the State Department pushed to ratify LOST. The first Bush administration made tentative moves to renegotiate the convention.

Those efforts were picked up by the Clinton administration, which signed an agreement to revise the treaty in 1994. Most industrialized states and even post-Soviet Russia, which initially had joined the U.S. in staying out of the treaty regime, soon ratified LOST.

The Republican takeover of Congress ended President Clinton’s hope of winning Senate ratification. But GOP members seem less likely to resist the Bush administration’s importunings.

THE CONVENTION ADMITTEDLY has benefits. Covenants covering economic resources, the environment, and navigation generally offer positive advances or reflect existing international law. In many cases, however, most of the benefits are achievable without the treaty.

Moreover, some LOST proponents see the convention as a “living” document. For instance, the U.N. Division for Ocean Affairs and the Law of the Sea explained that the Treaty “is not, however, a static instrument, but rather a dynamic and evolving body of law that must be vigorously safeguarded and its implementation aggressively advanced.” If international jurists proved half as willing as U.S. judges to creatively make law, LOST’s ultimate consequences could be enormous.

Of greatest importance in today’s unsettled security environment probably is free transit. LOST purports to guarantee freedom of navigation, an important value.

However, many of those provisions reflect customary international law. Moreover, the treaty is neither unambiguous nor will it prevent other nations from challenging the U.S., whether America is in or out of the LOST.

For instance, several countries, including major players such as Brazil, China, and India, have made extensive ocean claims opposed by other states as excessive. In his Senate testimony in late 2003 Adm. Michael G. Mullen, Vice Chief of Naval Operations, warned that the U.S. should not expect that “countries’ attempts to restrict navigation will cease once the United States becomes a party to the Law of the Sea Convention.”

The Bush administration also has emphasized that its support for LOST is based on the assumption that the U.S. will have exclusive authority over its military operations. In his testimony State Department legal adviser William H. Taft IV said acceptance had to be conditioned “upon the understanding that each Party has the exclusive right to determine which of its activities are ‘military activities’ and that such determination is not subject to review.”