Once the scourge of goo-goo internationalism, the Bush
administration is now desperate to appease the United Nations
crowd, Europeans, and “transies,” as the transnational
progressives, or NGO gaggle, is called. The president’s latest
concession is pushing the Law of the Sea Treaty, appropriately
known as LOST.
Needless to say, all of the wrong people are excited at the
prospect of American ratification of LOST, after a more than three
decade long struggle. Those who oppose the inevitable LOST victory
will show themselves to be “part of an extreme out-of-touch
minority,” said one happy treaty advocate.
The idea of a so-called “constitution of the oceans” has been
around for more than a half century. Secretary of State Henry
Kissinger gave LOST its current shape by conceding the so- called
parallel system, under which Third World politicians would regulate
private miners, forcing the latter to subsidize a separate UN
mining operation (now known as the Enterprise).
Indeed, LOST became the leading element of the so-called New
International Economic Order, by which rich rulers in poor nations
attempted to exploit Western guilt to win generous resource
transfers from poor people in rich nations. The West’s enemies
deployed the standard foreign aid scam, but with creative new
rhetoric. A treaty declared all seabed resources to be the “common
heritage of mankind,” mulcted Western mining companies and their
sponsoring nations through fees and royalties, and created a second
United Nations to divvy up the spoils.
It was, in short, a truly grand rip-off, the very best. The
challenge was finding Westerners truly foolish enough to sign
on.
But that proved to be no problem at all.
The usual global goo-goos loved it. The LOST was a
multilateralists’ dream: there would be authorities, enterprises,
committees, commissions, tribunals, and rules galore.
Those who believed that the authoritarian, collectivist
dictatorships that dotted the Third World were poor because rich
democratic capitalists hadn’t forked over enough cash were
ecstatic. Economic illiterates, like Henry Kissinger, cheerfully
tossed the gaggle of Third World despots a bone in the midst of the
Cold War.
Even so, LOST might not have gone anywhere had the so-called
Group of 77, the developing nations’ political lobby, not appended
its crackpot scheme to proposals to improve ocean resource
exploitation, regularize petroleum exploration, improve
environmental protection, and strengthen navigational freedom. Turn
over the all of the globe’s unowned resources to us, and we’ll
recognize some of your rules — many of which already have been
accepted as customary international law. Such a deal.
WHEN RONALD REAGAN took office, LOST was nearly complete. The final
session of the Third United Nations Conference on the Law of the
Sea was just a couple months away. The easy solution would have
been to sign the treaty and move on to other issues.
But that was not Reagan’s way. Instead, he spent the next year
fighting to “fix” the treaty — which essentially meant gutting
Part XI, as the seabed provisions were known — but got nowhere.
The Third World/goo-goo coalition had gotten what it wanted from
President Jimmy Carter, so why should it yield ground? With enough
transies screaming about how everyone else on earth was on board
LOST advocates thought that Washington would cave.
But President Reagan said no. The usual gaggle of impoverished
dictatorships signed on, but none of the major European countries
ratified the treaty. Nor did the Soviet Union, despite profuse
professions of love, affection, and admiration for the Third World.
The treaty was a bad deal for anyone who hoped to explore the
seabed, and Moscow certainly saw no reason to bind itself if the
U.S. stayed out.
The LOST lobby issued a profusion of hysterical warnings of
impending chaos and violence on the high seas, but nothing
happened. Life went on as usual. No one other than the transies
noticed the absence of a ratified LOST. However, internationalist
goo-goos never rest and State Department employees act like moths
around a light when they near a treaty. So President George H.W.
Bush began negotiations to “fix” LOST, a process completed by the
usual suspects in the Clinton administration. Secretary of State
Madeleine Albright proclaimed success in producing a new and
improved variant of LOST, and the rush began: Washington signed as
a cascade of ratifications brought the treaty into effect, leading
to demands for formal American assent.
However, Jesse Helms, as chairman of the Senate Foreign
Relations Committee, and then Bill Frist, as Senate Majority
Leader, kept the treaty off the Senate floor. So LOST remained in
limbo. But now the political stars have come into alignment: Senate
Democrats always have wanted it, the chairman and ranking member of
the Senate Foreign Relations Committee are committed to it, and,
perhaps most important, the Republican administration backs it.
Explained George W. Bush: “Joining will serve the national
security interests of the United States, including the maritime
mobility of our armed forces worldwide. It will secure U.S.
sovereign rights over extensive marine areas, including the
valuable natural resources they contain. Accession will promote
U.S. interests in the environmental health of the oceans. And it
will give the United States a seat at the table when the rights
that are vital to our interests are debated and interpreted.” The
president forgot to mention it, but LOST also is expected to banish
world hunger, initiate world peace, and cure the common cold.
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.
