Sink the Law of the Sea Treaty
by Doug Bandow
March 15, 2004
Doug Bandow is a senior fellow at the Cato Institute and a former special assistant to President Ronald Reagan.
President George W. Bush has demonstrated his willingness to stand alone internationally. Yet the administration is pushing the Senate to ratify the Law of the Sea Treaty (LOST), and Senate Foreign Relations Committee Chairman Richard Lugar (R-Ind.) has won a 15-0 vote to send the Treaty to the Senate floor. At a Committee meeting in February Sen. Lugar noted the wide range of support from American interests, opining "the need for U.S. accession to be completed swiftly." However, LOST is a flawed document, and there would be serious costs from accepting the Treaty.
LOST originated during the 1970s, part of the UN's redistributionist agenda known as the "New International Economic Order." The convention covers fishing, environmental, resource, and navigation issues. Its most controversial provisions long involved seabed mining. In essence, the treaty has created a second UN, the International Seabed Authority (ISA). LOST was expected to transfer abundant wealth and technology from the industrialized states to the Third World majority.
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. Eventually many Third World states acknowledged the Treaty's many flaws.
But treaties attract diplomats like lights attract moths. The first Bush and Clinton administrations worked to "fix" the LOST, 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 the treaty. Now President George W. Bush has stepped in where Bill Clinton feared to tread.
Unfortunately, the revised LOST retains many of its original flaws. There still is an Authority with a mining subsidiary, the Enterprise, ruled by a complicated system of Assembly, Council, and various commissions and committees. Mining approval would remain highly politicized. Anti-monopoly and anti-density provisions could discriminate against American operators; companies would owe substantial fees to the ISA and be required to survey an extra site for the Enterprise, their government- subsidized competitor.
The mandatory technology transfer provision has been watered down. However, "sponsoring states," that is, governments of nations where miners are located, would have to facilitate technology transfers if the Enterprise and Third World competitors were "unable to obtain" the necessary equipment commercially. Depending upon the whims of the ISA, ensuring the "cooperation" of private miners might end up looking very much like mandatory transfers.
The so-called "pioneer investors" are forced to train ISA- designated personnel to ensure, according to the Authority, "that the Enterprise is able to carry out activities in the Area in such a manner as to keep pace with States and other entities." The extent of this provision presumably depends on future decisions of the ISA and Enterprise. The latter is now pressing for equity positions as part of joint ventures with private operations as a substitute for the discredited "parallel" system of ISA-controlled mining operations conducted by the Enterprise.
The Authority, though so far of modest size, would suffer from the same perverse incentives which afflict the UN, since the U.S. would be responsible for 25 percent of the budget. Proposals by industrialized states to limit their financial contributions have generally received an unfriendly reception. Still, when it signed the LOST, the Clinton administration said there was no reason to worry, since the treaty revision proclaimed that "all organs and subsidiary bodies to be established under the Convention and this Agreement shall be cost-effective." Presumably as they are in the UN.
The U.S. also lacks the influence provided by its UN Security Council veto. Under the original plan, the Soviets were guaranteed three seats and the U.S. none; that, at least, has been changed. But the Council consists of four separate "chambers"; in practice land-based mineral producers, who have long worked to impede any seabed development, might end up with as much impact as America on Authority policy. In early 2001 the Council divided between industrialized and developing states on the speed with which to adopt regulations governing seabed exploration. The latter, reported the ISA, wanted "to protect the interests of humanity as a whole"--something the UN has done so well over the last half century.
With no seabed mining in the offing, the ISA sometimes mimics the UN in its emphasis on the trivial. It generates lots of reports and paper, even though any mining remains long distant. Protecting "the emblem, the official seal and the name" of the ISA, as well as abbreviations of that name through the use of its initial letters," has been a matter of some concern. Among the crises the Authority has confronted: in April 2002 the Jamaican government turned off the ISA's air conditioning, necessitating "urgent consultations with the Ministry of Foreign Affairs and Foreign Trade." One year later Jamaica used the same tactic in the ongoing battle over Authority payments for its facility. And half of the ISA members are behind on their dues.
The mining scheme is flawed in its very conception. Although in the 1970s many people 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 remains logistically daunting. There is no guarantee that seabed mining will ever be commercially viable.
Moreover, the legal status of seabed mining would be satisfied by a simple system for recognizing minesites and resolving disputes. The Authority's only purpose is to redistribute resources to irresponsible Third World governments that have already received and largely squandered abundant foreign aid.
This redistributionist bent is reflected in the provisions providing for financial transfers to land-based producers, developing states, and even "peoples who have not attained full independence or other self-governing status," such as the PLO. And it is evident even in the most mundane areas. For example, a proposal was made for an African institute of the oceans, as if that was the highest priority facing countries suffering from civil war and chaos.
The International Tribunal for the Law of the Sea is supposed to offer dispassionate adjudication of disputes. Yet membership is decided by quota: five members each for Africa and Asia, four each for the "Western European and Others Group" and Latin America, and three for Eastern Europe. Showing up on the Tribunal were some of the early conference participants who pushed the Treaty's redistributionist agenda: Cameroon's Paul Engo and Tanzania's Joseph Warioba.
Indeed, Third World states naturally continue to press for financial transfers; three voluntary trust funds were established to aid developing countries. Alas, few people or nations have rushed 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 surplus to pay.
The Treaty is not without benefits. Provisions regarding the environment, resource management, and transit generally are positive, though many reflect what is now customary international law, even in the absence of American ratification. Indeed, Sen. Lugar notes that "law and practice with respect to regulation of activities off our shores is already generally compatible with the Convention."
Nevertheless, perhaps the strongest support for LOST emanates from the U.S. Navy. But transportation benefits, though real, are limited. America already enjoys important practical advantages: The Russian navy is rusting in port, China has yet to develop a Blue Water capability, and no country anywhere is threatening to impede U.S. transit, commercial or military.
Although LOST advances navigational freedom, some provisions are ambiguous, undermining their value. Even seemingly innocent restrictions might have a negative impact; Alfred Rubin of Tufts University worries that the ban on "research or survey activities" could limit U.S. naval rights. In his 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 so certain. Adm. Michael G. Mullen, the Vice Chief of Naval Operations, acknowledges the possibility that a LOST tribunal could assert jurisdiction and rule adversely, impacting "operational planning and activities, and our security."
Moreover, at a time when Washington is combatting lawless terrorism, it should be evident that the only sure guarantee of free passage 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 more than abstract legal norms. Remember the luckless USS Pueblo, whose Captain, Lloyd Bucher, recently died. International law did not prevent North Korea from illegally seizing the intelligence ship; approval of the LOST would have offered the Pueblo no additional protection. America was similarly unaided by international law in its confrontation over its EP-3 surveillance plane with China.
Nor has LOST membership prevented Brazil, China, India, Malaysia, North Korea, Pakistan, and others from making ocean claims deemed excessive by some. Even treaty proponent Rear Adm. (ret.) William L. Schachte acknowledges: "The Convention alone is not enough, even as a party." 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; if they had, the LOST would have been of little help. In 1998 Treaty supporters agitated for immediate ratification because several special exemptions for the U.S. were set to expire; Washington did not, and no one seems to have noticed. Now Sen. Lugar worries that the U.S. 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 non-party to the Convention."
Ironically, problems cited by U.S. shippers--creation of a "particularly sensitive sea area" off of Europe, for instance-- have involved alleged misinterpretations of the treaty, not America's lack of membership. And foreign shippers have attempted to use LOST to escape application of U.S. environmental controls. Joining the treaty would provide no panacea.
Finally, the LOST may encourage the UN to venture into new, unexplored territory. The UN's Division for Ocean Affairs and the Law of the Sea has boldly announced that the LOST "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."
In 2001 the Seaman's Church Institute complained about "the erosion of traditional seafarers' rights," including abandonment by insolvent shipowners. Institute representatives explained that "When the health, safety or welfare of mariners was in jeopardy, the international community looked to" the LOST "to protect them." What "the international community" should do about such a traditionally national issue is not obvious. But Washington might find out to its detriment if it signs on. Ambition seems to burn eternally in the breasts of UN agencies.
LOST 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 LOST enterprise two decades ago. Creating a new oceans bureaucracy is no more attractive today. The U.S. Senate should pause before today swallowing the poison pill, no matter its new color.
This article originally appeared in The Weekly Standard on March 15, 2004.