Commentary

Sink the Law of the Sea Treaty

This article was published in the Weekly Standard, week of March 15, 2004. Copyright (c) 2004, News Corporation, Weekly Standard. All Rights Reserved.

President Bush has demonstrated his willingness to stand alone internationally. Yet for little better reason than go-along, get-along multilateralism, the administration is now pushing the Senate to ratify the Law of the Sea Treaty, which was just unanimously voted out of Richard Lugar’s Senate Foreign Relations Committee. At a committee meeting in February, Lugar noted a wide range of support from American interests “for U.S. accession to be completed swiftly.” However, the treaty is a flawed document, and there would be serious costs from accepting it.

The Law of the Sea Treaty originated in the 1970s as part of the United Nations’ redistributionist agenda known as the “New International Economic Order.” The convention covers such issues as fishing and navigation, but the controversy arose mainly over seabed mining. In essence, the Law of the Sea Treaty was designed to transfer wealth and technology from the industrialized states to the Third World.

Two decades ago, President Ronald Reagan ignored criticism of American unilateralism and refused to sign the treaty. U.S. leadership caused the Europeans and even the Soviet Union to stay out. Many Third World states eventually acknowledged the treaty’s many flaws.

But treaties attract diplomats as lights attract moths. The first Bush and Clinton administrations worked to “fix” the treaty, leading to a revised agreement in 1994. Washington signed, leading to a cascade of ratifications from other countries. GOP gains in Congress, however, dissuaded the Clinton administration from pushing for ratification. Now George W. Bush has stepped in where Bill Clinton feared to tread.

Unfortunately, the revised treaty retains many of its original flaws. There is still a complicated multinational bureaucracy that sounds like an excerpt from George Orwell’s “1984”: At its center is the International Seabed Authority. The Authority (as it calls itself) supervises a mining subsidiary called the Enterprise, ruled by an Assembly, Council, and various commissions and committees. Mining approval would be highly politicized and could discriminate against American operators. Companies that are allowed to mine would owe substantial fees to the Authority and be required to do surveys for the Enterprise, their government-subsidized competitor.

A mandatory transfer of mining technologies to Third World companies has been watered down. However, “sponsoring states” — that is, governments of nations where mining companies are located-would have to facilitate such transfers if the Enterprise and Third World competitors are “unable to obtain” necessary equipment commercially. Depending on the whims of the Authority, ensuring the “cooperation” of private miners could look very much like mandatory transfers.

The Authority, though so far of modest size, would suffer from the same perverse incentives that afflict the U.N., since the United States would be responsible for 25 percent of the budget but easily outmaneuvered. Proposals by industrialized signatories to limit their contributions have so far received an unfriendly reception. Still, when it signed the Law of the Sea Treaty, the Clinton administration said there was no reason to worry, because the treaty proclaims that “all organs and subsidiary bodies to be established under the Convention and this Agreement shall be cost-effective.” Right. Presumably just as cost-effective as the U.N.

The treaty’s mining scheme is flawed in its very conception. Although many people once thought untold wealth would leap from the seabed, land-based sources have remained cheaper than expected, and scooping up manganese nodules and other resources from the ocean floor is logistically daunting. There is no guarantee that seabed mining will ever be commercially viable.

Yet this has not dimmed the enthusiasm of the Authority. Like the U.N., it generates lots of reports and paper and obsesses over trivia. Protecting “the emblem, the official seal and the name” of the International Seabed Authority has been a matter of some concern. Among the crises the Authority has confronted: In April 2002 the Jamaican government turned off its air conditioning, necessitating “urgent consultations with the Ministry of Foreign Affairs and Foreign Trade.” A year later Jamaica used the same tactic in an ongoing battle over Authority payments for its facility. Oh yes, half of the Authority members are behind on their dues.

Were seabed mining ever to thrive, a transparent system for recognizing mine sites and resolving disputes would be helpful. But the Authority’s purpose isn’t to be helpful. It is to redistribute resources to irresponsible Third World governments with a sorry history of squandering abundant foreign aid.

This redistributionist bent is reflected in the treaty’s call for financial transfers to developing states and even “peoples who have not attained full independence or other self-governing status”-code for groups such as the PLO. Whatever changes the treaty has undergone, a constant has been Third World pressure for financial transfers. Three voluntary trust funds were established to aid developing countries. Alas, few donors have come forward to subsidize the participation of, say, sub-Saharan African states in the development of ocean mining. Thus, the Authority has had to dip into its own budget to pay into the funds.

Why, given all this, was the Senate Foreign Relations Committee eager to sign on? The treaty is not without benefits. Provisions regarding the environment, resource management, and rights of transit generally are positive, though many reflect what is now customary international law, even in the absence of U.S. ratification. Lugar notes that “law and practice with respect to regulation of activities off our shores is already generally compatible with the Convention.” This would seem to be an equally strong argument for not ratifying the treaty.

Most influential, though, may be support from the U.S. Navy, which is enamored of the treaty’s guarantee of navigational freedom. Not that such freedom is threatened now: The Russian navy is rusting in port, China has yet to develop a blue water capability, and no country is impeding U.S. transit, commercial or military.

At the same time, some ambiguous provisions may impinge on freedoms U.S. shipping now enjoys. In Senate testimony last fall, State Department legal adviser William H. Taft IV noted the importance of conditioning acceptance “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.” Whether other members will respect that claim is not at all certain. Admiral Michael G. Mullen, the vice chief of naval operations, acknowledges the possibility that a Law of the Sea tribunal could rule adversely and harm U.S. “operational planning and activities, and our security.”

Moreover, at a time when Washington is combating lawless terrorism, it should be evident that the only sure guarantee of free passage on the seas is the power of the U.S. Navy, combined with friendly relations with the states, few in number, that sit astride important sea lanes. Coastal nations make policy based on perceived national interest, not abstract legal norms. Remember the luckless USS Pueblo in 1968? International law did not prevent North Korea from seizing the intelligence ship; approval of the Law of the Sea Treaty would have offered the Pueblo no additional protection. America was similarly unaided by international law in its 2001 confrontation with China over our downed EP-3 surveillance plane.

Nor has signing the Law of the Sea Treaty prevented Brazil, China, India, Malaysia, North Korea, Pakistan, and others from making ocean claims deemed excessive by others. Indeed, last October Adm. Mullen warned that the benefits he believed to derive from treaty ratification did not “suggest that countries’ attempts to restrict navigation will cease once the United States becomes a party to the Law of the Sea Convention.”

Critics of the U.S. refusal to sign in 1982 predicted ocean chaos, but not once has an American ship been denied passage. No country has had either the incentive or the ability to interfere with U.S. shipping. And if they had, the treaty would have been of little help. In 1998 Law of the Sea Treaty supporters agitated for immediate ratification because several special exemptions for the United States were set to expire; Washington did not ratify, and no one seems to have noticed. Now Lugar worries that Washington could “forfeit our seat at the table of institutions that will make decisions about the use of the oceans.” Yet last October Assistant Secretary of State John F. Turner told the Senate Foreign Relations Committee that America has “had considerable success” in asserting “its oceans interests as a nonparty to the Convention.”

Law of the Sea Treaty proponents talk grandly of the need to “restore U.S. leadership,” but real leadership can mean saying no as well as yes. Ronald Reagan was right to torpedo the Law of the Sea Treaty two decades ago. Creating a new oceans bureaucracy is no more attractive today.

Doug Bandow is a senior fellow at the Cato Institute. A special assistant to President Ronald Reagan, he served as a deputy representative to the third U.N. Conference on the Law of the Sea.