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.”
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.
