Bad treaties never die. Such is the lesson of the Law of the Sea
Treaty, or LOST. The treaty would turn over all of the world’s
unclaimed natural resources to a second United Nations, yet is
beginning to move towards ratification. The Senate Foreign
Relations Committee is scheduled to vote on the treaty on
Wednesday.
Three decades ago the Third World was busy campaigning for a
so-called New International Economic Order (NIEO), which combined
demands for more foreign aid, UN regulation of business, and
collectivist resource development. LOST declared all seabed
resources to be the “common heritage of mankind,” levied fees and
royalties on Western mining and oil companies, created a monopoly
company to mine the seabed, and established a new international
body to divvy up the spoils.
President Ronald Reagan refused to sign the LOST in 1982, after
which no major nation bound itself to the treaty. The agreement
seemingly sank beneath the waves.
But President George H.W. Bush decided to revive the LOST,
reopening negotiations, which were concluded by the Clinton
administration. Secretary of State Madeleine Albright won a few
small concessions and proclaimed victory. The U.S. signed, setting
off an international stampede.
Although opposition in the Republican Senate prevented
ratification, more than enough other countries assented, bringing
LOST into effect. Now the LOST is before the Senate, backed by the
Bush administration.
The president claims that the accord serves American interests.
But even the State Department has acknowledged that the new
“Agreement retains the institutional outlines of Part XI,” that is,
the treaty’s original collectivist framework.
In broad sweep, LOST covers three subject areas. The first
includes exclusive economic zones, fishing, marine research, ocean
pollution, and oil exploration. These provisions, though generally
noncontroversial, are not without adverse effect: for instance,
energy companies will owe the International Seabed Authority
royalties up to 12 percent on any oil produced from the Outer
Continental Shelf beyond 200 miles. This may be the first global
tax imposed on Americans without congressional approval.
Moreover, advocates of a new kind of New International Economic
Order hope to use the LOST for their own ends. William C.G. Burns
of the Monterey Institute of International Studies calls LOST “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.” A flood of international lawsuits under LOST could
undermine U.S. prosperity and sovereignty.
Russia’s well-publicized submarine voyage under the North Pole
has led to suggestions that America cannot dispute Moscow’s
territorial claims outside of the treaty. However, the treaty
respects the rights of nonmembers, while other interested parties,
most notably Canada and Denmark, can resist Russia’s claims within
LOST. Moreover, the Commission on the Limits of the Continental
Shelf rejected Russian arctic territorial claims in 2002 based in
part on information supplied by the U.S., demonstrating that
Washington need not be a member to protect American interests.
Similarly, LOST’s affirmation of navigational freedom has won
widespread support, including from the U.S. Navy. Yet most of the
transit provisions incorporate existing customary international
law. Moreover, there are ambiguities and uncertainties — whether,
for instance, Washington can define which of its military transit
activities are exempt from LOST restrictions.
The Bush administration proposes various “understandings”
restricting the treaty’s reach. But other nations have issued their
own reservations, thereby limiting American rights. Moreover, there
is no guarantee that the International Tribunal for the Law of the
Sea or alternative arbitration forums would uphold America’s
positions. Jeremy Rabkin of George Mason Law School points out that
any administration would “find it very awkward (to say the least)
to reject the interpretations that emerge from international
arbitration of its disputed points.”
In any case, paper guarantees would be of little aid in any
crisis. Agreements with countries that control critical waterways,
backed by a strong navy, offer the best protection of U.S.
rights.
The most contentious issue is seabed mining. LOST establishes
the International Seabed Authority, which is governed by a Council,
Assembly, and various committees and commissions, and the
Enterprise, to mine the seabed. Western mining operations will fund
both their regulator, the Authority, and their competitor, the
Enterprise. Monies collected will be handed out to Third World
states, “liberation” movements, and whoever else the majority
decides to shower with benefits.
Treaty supporters admit that the original accord, which limited
production and mandated technology transfers, was flawed. But they
claim that the LOST has been “fixed.”
The Clinton administration did make a horrible treaty slightly
less horrid. The governing philosophy, regulatory structure, and
most of the rules remain the same, however. Where explicit
redistributionist provisions, such as requiring technology
transfer, were dropped, other, more ambiguous, language was left in
place which could have the same effect.
Finally, LOST still enshrines the basic principles of the NIEO
as international precedent. Maybe ocean mining will never be
viable, so turning vast resources over to yet another inefficient,
politicized, and corrupt international organization won’t matter.
But such a byzantine regulatory structure is likely to discourage
entrepreneurship in related fields, especially the development of
technology, software, and other products with multiple ocean uses.
Further, applying such a principle to other unowned resources, such
as outer space, would discourage private innovation in that
field.
In fact, treaty proponents emphasize the treaty’s precedential
value. At the tenth anniversary celebration of the establishment of
the ISA, Tanzanian Ambassador Joseph Warioba declared: “Above all
the principle and concept of the common heritage of mankind has
been firmly established. The provisions of Part XI of the
Convention have been diluted and weakened by later action but there
is no denying the fact that the Convention put a stop to the
colonization of the seabed beyond areas of national jurisdiction
and established global management and administration under the
Authority.” Just imagine where this precedent could be applied.
The LOST is not without benefits, but most can be enjoyed
without ratifying the treaty. Unfortunately, the costs of joining
are too high. We should have learned by now that dirigiste
economics will always fail. Enshrining collectivism as
international law through creation of a mini-me United Nations
would be as foolish as it would be costly.
