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There is no guarantee that other states, especially when American “unilateralism” is under constant and widespread attack, will respect a U.S. determination, however. Washington might face an adverse LOST tribunal decision asserting jurisdiction over American naval activities — such as the Proliferation Security Initiative. An adverse ruling, warned Adm. Mullen, could harm “operational planning and activities, and our security.”
The LOST’s navigation provisions are perhaps a classic example of Arthur Conan Doyle’s famous dog that didn’t bark. Two decades ago Treaty proponents forecast disorder on the seas after America’s rejection of the agreement. Not once have U.S. vessels been denied transit.
Only a few states sit astride important sea lanes; friendly bilateral relations are more likely than an abstract multilateral treaty to ensure U.S. passage. In any case, the only certain guarantee of free transit is the U.S. Navy. After all, Beijing did not let international law discourage it from confronting Washington over the downed EP-3 surveillance plane.
OBVIOUSLY, THE LAW OF THE SEA TREATY is not as beneficial as commonly claimed. Moreover, the treaty retains many of its original worst flaws despite supposedly being “fixed.”
Convention advocates routinely claim that seabed mining is no longer an issue. The Clinton administration did improve the treaty, assuming the fix is part of the final treaty — a number of parties have not ratified the amendments to the original convention. But the changes do not address the essential character of LOST.
The treaty still establishes what looks like a second U.N. The multinational Authority is run by a comically complicated system of Assembly, Council, and various commissions and committees. Private companies would not only have to run the Authority’s regulatory gamut to win mining approval but subsidize the Authority-controlled Enterprise.
Of particular concern is the integrity of American technology, some of which might have military applications. Despite the Clinton-era “fix,” the LOST still requires member governments to facilitate technology transfers to Third World miners as well as the Enterprise if they are “unable to obtain” the necessary equipment commercially. Which might end up meaning if they can’t buy it as cheaply as they would like.
Nor is there any reason to believe that the Authority, to which America would be the largest contributor, would escape the numerous perverse incentives that afflict the U.N. The U.S. possesses an uncertain ability to block bad initiatives and would be forced to make concessions to win support from developing states, which also possess effective veto power.
Making LOST’s Rube Goldberg system particularly bizarre is the fact that it was never needed. In practice, seabed mining requires little more than a simple process of recognizing mine sites and resolving disputes.
Some treaty advocates acknowledge that seabed mining remains a distant prospect and ask: Who cares if this aspect of the convention remains flawed? But someday seabed resources might be worth recovering, giving life to so-called Part XI. Moreover, the undesirable precedents set by LOST could have long-lasting impacts in other areas.
The Bush administration has demonstrated the courage of its convictions in international affairs. It should stand firm against the treaty as well. And if the administration fails to fulfill its responsibility, the Senate should tell LOST to get lost.
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