The Public Policy

Let’s Lose LOST

Now that Secretary of State Kerry has rediscovered the Law of the Sea.

By and 3.26.13

Send to Kindle

When Secretary of State John Kerry gave a speech at the Ross Sea Conservation Reception on March 19, he suggested that we should have called our planet Ocean rather than Earth. He went on to outline an international environmental agenda centered around the oceans that we can expect to be the hallmark of his time in office. Saving the oceans will be the new rallying cry of the green movement and their political and corporate allies. We can therefore expect a new attempt soon to ratify the United Nations Convention on the Law of the Sea (UNCLOS). This would be a disaster for America.

Kerry was forthright in his argument. He said:

“[I]t is clear that we have an enormous challenge ahead of us as we face the extraordinary excess that we see with respect to each of those issues that I talked about: energy policy that results in acidification, the bleaching of coral, the destruction of species, the change in the Arctic because of the ice melt, and the change in the krill, the population of whales. The entire system is interdependent, and we toy with that at our peril.”

In a recent study Iain wrote for the National Center for Policy Analysis, “LOST at Sea,” he notes that UNCLOS -- also known as the Law of the Sea Treaty, or LOST -- has been advanced at different times as the solution to all of these issues. This is because the convention includes provisions that require governments to take measures to “minimize to the fullest possible extent” the release of substances “harmful” to the oceans. It also establishes a tribunal -- a permanent court -- to police the treaty.

As Iain argues in the paper, anyone who knows the tactics of the environmental movement should realize that this would be manna from heaven for global warming alarmists. The release of carbon dioxide from fossil fuels has been blamed for ocean acidification, coral bleaching, species loss, ice melt and virtually every other ill that greens have claimed is befalling the oceans.

If LOST is ratified, under the U.S. Constitution it has the force of law. The environmental movement would therefore be able to use the treaty, U.S. courts, and the UNCLOS tribunal to force the U.S. to minimize emissions of carbon dioxide.

Since the treaty does not take economic cost into account, and the U.S. is the world’s second largest emitter of carbon dioxide (despite rapid emissions decreases caused by technological advances such as the development of fracking), such a requirement could amount to the forced deindustrialization of the United States. Economic disaster, mass unemployment, and vastly increased poverty would result. 

Nor should we be sanguine that the tribunal will be presided over by impartial or even competent justices. As Doug Bandow of the Cato Institute noted, appointment to the tribunal seems to have been used as a “dumping ground” for “frustrated politicos,” many of them from undemocratic regimes where political power is arrived at by often unsavory means.

This should not be surprising given the convention’s history. It was drafted during the Cold War, and intended by the Soviet Union as a means of support for its satellite states in the developing world. By declaring the world’s oceans “the common heritage of mankind,” it provided a mechanism by which any development of subsea resources outside a nation’s 200-mile zone would help subsidize those regimes.

Indeed, the purpose of the treaty was so transparent that President Reagan refused to sign the treaty. It has failed to garner enough support to make it to the Senate floor every time it has been suggested since, even after the Clinton administration negotiated some amendments in 1994.

The treaty, however, contains other provisions relating to international navigation and more traditional “freedom of the seas” principles. That is why many current and former naval officers support the ratification of the treaty. Many corporations do as well, falsely believing the treaty will give them more certainty in planning exploration in areas such as the Arctic Ocean. In my NCPA study, I outline exactly why all these arguments are mistaken. 

In short, there is no economic case for the United States to ratify LOST.  It uses the failed socialist economic theory to govern the ocean floors, it has proven unable to resolve disputes, it subsidizes dangerous regimes, it does not establish meaningful property rights and thus fails to provide certainty for developers, and because it requires technology transfers, it suppresses research and development.  Indeed, as designed it amounts to a scheme for transferring wealth from the poor in developed countries with ocean coastlines to wealthy oligarch’s in developing countries with no ready access to the world’s oceans.

It is, however, the threat of environmental extremism given new teeth that provides the biggest reason to reject the treaty. We rejected the Kyoto Treaty for good reason. This is the Kyoto Treaty with a court attached. Secretary Kerry has told us what he wants. We may choose to call our planet Ocean, but we should not let our people drown in a tidal wave of foolishness.

Like this Article

Print this Article

Print Article
About the Author
Iain Murray heads the Center for Economic Freedom at the Competitive Enterprise Institute and is the author of Stealing You Blind: How Government Fatcats Are Getting Rich Off of You.
About the Author

H. Sterling Burnett is a senior fellow with the National Center for Policy Analysis in Dallas, Texas.