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.
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