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Special Report

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UNFORTUNATELY, DESPITE THE PRESIDENT'S grandiose claims, the treaty is still a bad deal.

Like most laws that come before the Congress, the LOST is rarely read, even by its most passionate advocates. It is perhaps best seen as a document of three parts.

First is fishing, ocean pollution, marine research, and exclusive economic zones (EEZs). These are largely noncontroversial and have generated support among the energy industry, fishing interests, and the environmental movement.

Nevertheless, even here there is reason for some caution. For instance, Frank Gaffney, Phyllis Schlafly, and others have raised important questions about LOST's impact on U.S. sovereignty. Indeed, some transies see LOST as a vehicle to advance their larger ideological agendas. For instance, William C.G. Burns, with the Monterey Institute of International Studies, argues that LOST "is a promising instrument through which such [legal] action might be taken, given its broad definition of pollution to the marine environment and the dispute resolution mechanisms contained within its provision." Just what we need, a flood of international lawsuits.

The second area is navigation, where LOST largely codifies customary international law. The U.S. Navy supports the treaty because it believes the provisions strengthen the transit freedoms America presently enjoys. In fact, for this reason the Navy pushed the unreformed treaty three decades ago: it viewed global socialism as a small price to pay for dotting another juridical "i" when it comes to ensuring navigational freedom.

Many analysts believe LOST advances U.S. transit rights, but again, some analysts are less sanguine. For instance, it is not certain that the U.S. will be able to define which actions are "military" and therefore exempt from LOST restrictions, and continue to conduct searches under the Proliferation Security Initiative, despite administration claims.

Moreover, when the right of passage is truly vital, the treaty will be only a make-weight. If a hostile nation believes that stopping the U.S. is vital and has the ability to do so, it is unlikely to parse LOST articles to determine America's formal legal rights. Similarly, when the U.S. believes that transit is vital and has the ability to force passage, it is unlikely to consult the LOST before acting. Treaties and informal agreements with the right few nations offer a more certain legal guarantee for navigation rights in the most critical waterways.

The third subject is seabed mining. LOST calls the resources contained on and below 71 percent of the earth's surface, the seabed, the "common heritage of mankind." LOST was part of the so-called New International Economic Order. Wrapped in high-minded rhetoric, the NIEO was a well-organized attempt by Third World elites to shift the blame for the problems they had caused their nations and peoples onto the citizens of the industrialized states.

To regulate ocean resources the convention created a gobbledy-gook bureaucracy called the International Seabed Authority. The system was unique in its byzantine perversity. The ISA was ruled by a Council, Assembly, and a variety of committees and commissions. The Enterprise was to mine the seabed for the ISA. Among the original system's objectives were limiting production, to protect Third World mineral exporters, and redistributing the fees and revenues collected, to enrich the usual panoply of Third World dictatorships. Western mining operations would be forced to underwrite their competitor, the Enterprise -- surveying mining sites, transferring technology, and providing subsidies.

Such a deal.

TODAY FEW PEOPLE DEFEND the original treaty. But the mantra of proponents, even some on the right, is that LOST has been "fixed." Ken Adelman of the Aspen Institute wrote: "Scraped away are virtually all the barnacles we denounced during our 1982 'scuttle diplomacy'." Indeed, he added, "This seabed mining regime reflects free-market principles."

It isn't clear about what treaty Ambassador Adelman is writing.

Despite improvements, i.e., making an awful treaty slightly less bad, the essentials of the LOST system remain unchanged. The ISA, with its nonsensical governing regime, and the Enterprise remain. Some provisions on mandatory technology transfer were cut, but other language remains that could lead to the same result. The same problem exists with production controls. The U.S. possesses no veto, and land-based minerals exporting countries as well as developing states can block exploitation of the seabed, demanding potentially expensive concessions in return for their support.

Most important, the terrible precedent remains: LOST turns over a vast amount of the earth's wealth to a highly politicized international organization to be managed by a likely incompetent and kleptocratic bureaucracy. This global oceans regulatory system would restrict entrepreneurship; in doing so it would do more than hinder seabed resource development. Such a system also would deter the production of software, technology, and processes designed for seabed mining, as well as those with dual use capabilities. Finally, a LOST-like regime would discourage exploration of other, currently unowned resources, most notably space, lest the same principles be applied through a similar regulatory regime. (Indeed, the Moon Treaty already has been formally ratified, though it does not establish a specific regulatory regime.)

In short, the LOST is unsalvageable. It reflects the collectivist political environment within which it was first negotiated. Protecting navigational rights and the ocean environment are legitimate, even important, goals, but the provisions advancing these ends should not be paired with creation of a redistributionist regulatory regime for the ocean's floor.

LOST advocates have made much of the president's support for the convention, and the White House has launched a sustained campaign to coopt Republican Senators and conservative activists. But the Bush administration long ago abandoned the traditional limited government, market-oriented tenets of conservatism. That it is pushing a treaty that establishes a collectivist system most notable for inefficient bureaucracy simply confirms that the administration has lost its ideological soul. Conservatives must say no to the LOST.

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Environment, Constitution, Law, Military, United Nations, NATO, Socialism, Conservatism, Energy, Oil