The American Spectator

Like a monster in a horror flick franchise, the Law of the Sea Treaty (LOST), an omnibus treaty originally blocked by President Ronald Reagan, is back! And despite what the doomsday document’s delirious spokesmen say, it’s about as scary as ever.

The convention is being pushed by a mix of activists, who support international law — any international law — and businesses, such as the International Association of Drilling Contractors, that see visions of profits dancing in their boardrooms. Treaty critics are being dismissed as ignorant fools or cynical liars.

LOST covers navigation, environment, seabed mining, and more. It offers a few benefits, but they have been widely exaggerated. Boosters are bragging that the treaty would strengthen navigation rights. But the difference would only be marginal, since the treaty simply codifies customary international law.

Most countries have an interest in maintaining free navigation. If a nation believes it to be in its interest — and within its capability — to interdict commercial or military shipping, it isn’t likely to waste time parsing LOST articles before acting.

The Treaty’s downsides remain. The seabed mining provisions were renegotiated in 1994, but the treaty was not “fixed.” The convention, originally intended to promote large-scale income redistribution to Third World states, creates an International Seabed Authority (ISA) to regulate ocean mining and the Enterprise to mine for the ISA.

The system is byzantine in its complexity and inefficiency.

THE RENEGOTIATED text only moderated LOST’s infirmities. Now, the U.S. has been given a seat on the Council of the ISA, but it possesses no veto, unlike the UN Security Council.

The Council operates by “consensus,” but under the Treaty this only means the ISA must strive to overcome disagreements before moving forward. Had “consensus” really meant consensus as commonly understood, the Treaty itself could never have been approved over U.S. objections.

Similarly, the agreement retains part of the original requirement for mandatory technology transfers. Article 144 directs that the Authority shall “promote and encourage the transfer to developing States of such technology and scientific knowledge.”

Moreover, the Authority and States Parties “shall initiate and promote” programs “for the transfer of technology to the Enterprise and to developing states,” including “facilitating the access of the Enterprise and of developing States to the relevant technology, under fair and reasonable terms and conditions.” The revised text also adds new provisions that easily could be interpreted to require the same sort of technology transfers originally specified in the version that the U.S. rejected, such as the requirement that governments “ensure that contractors sponsored by them also cooperate fully with the Authority.”

Equally bad, LOST could be treated as self-enforcing, that is, found to create obligations enforceable by U.S. courts. In Medellin v. Texas, the U.S. Supreme Court recently rejected a challenge to a criminal conviction for failure to fulfill the Vienna Convention on Consular Relations. The majority ruled that it does not constitute “directly enforceable federal law.”

Treaty advocates make the same claim for LOST. However, Annex III, Article 21(2) states that LOST tribunal decisions “shall be enforceable in the territory of each State Party.” And in Medillin Justice John Paul Stevens contrasted the Vienna Convention with LOST, which he opined did “incorporate international judgments into international law.”

The issue isn’t going to be settled until a suit is filed under LOST, if the U.S. is foolish enough to ratify the Treaty.

INDEED, SOME PROPONENTS are almost gleeful about the treaty’s many opportunities for new litigation. William C.G. Burns, a professor at Monterey Institute of International Studies, denounced America’s refusal to ratify the Kyoto Protocol on global warming.

Burns noted that “several States and peoples in recent years have begun to contemplate, or have taken active steps to initiate, actions against States or private actors” in a variety of international forums, including the LOST, which, he contends, “may prove to be one of the primary battlegrounds for climate change issues in the future.”