Special Report

LOST at Sea

Why won't the President sink the Law of the Sea Treaty?

By 3.16.05

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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.

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About the Author
Doug Bandow is a senior fellow at the Cato Institute. A former Special Assistant to President Ronald Reagan, he is the author and editor of several books, including The Politics of Plunder: Misgovernment in Washington (Transaction).