Washington’s Night of the Living Dead: The Law of the Sea Treaty Stirs

September 12, 2011 • Commentary
This article appeared in Forbes on September 12, 2011.

Like a zombie rising from the grave to stalk the living, the Law of the Sea Treaty (LOST) has haunted Washington for the last 30 years. President Ronald Reagan refused to sign and seemingly killed the omnibus agreement. But his successors revived the misnamed “constitution of the oceans.” There is talk of a renewed push for ratification by the Obama administration and Senate Foreign Relations Committee Chairman John Kerry.

LOST is one of the more obscure panaceas sold in Washington. If the issue is Chinese maritime assertiveness, Arctic oil exploration, or other maritime disputes, the answer is supposed to be LOST. Ratify the convention and international controversies will be magically resolved.

The convention is a complex, unwieldy document joining diverse ocean‐​related measures. LOST was fashioned when communism claimed to be gaining on capitalism, dictators of newly independent states asserted the international moral high ground, and income redistribution characterized Washington’s domestic policies.

Indeed, the convention was but one element of the “New International Economic Order” designed to promote global income redistribution, taking money from productive First World democracies and giving it to collectivist Third World autocracies. To this end, LOST established the International Seabed Authority (ISA), currently located in the hardship post of Jamaica, to regulate private ocean development, mine the seabed through an entity called “the Enterprise,” and subsidize favored nations and groups.

The ISA is a Rube Goldberg creation, with Assembly, Council, Tribunal, and assorted committees, commissions, and chambers. Most important are the rules. Complicated and seemingly endless, they were drafted to limit access to international resources and force the West to give money and technology to members of the so‐​called G-77, the once influential international lobby for Third World dictators (a few democracies lurked among the developing nations at the time, but not many).

Negotiations proceeded under Richard Nixon, who cared little about economics, and Jimmy Carter, who cared little about redistribution. But Ronald Reagan worried about both and refused to sacrifice U.S. sovereignty for the privilege of creating a mini‐​UN to mulct the American people. To the horror of international diplomats, bureaucrats, and activists, President Reagan refused to sign the final agreement in 1982.

Filled with moral indignation about capitalist outrages, the Soviet Union denounced the U.S., but also refused to sign. The Europeans emphasized their enduring love for their former colonies, which then dominated the G-77, and signed LOST—but refused to ratify the convention. Then, as collectivism collapsed throughout the communist and developing worlds, even Third World states increasingly admitted that President Reagan had been right. Private markets, not government diktats, were the key to prosperity.

Unfortunately, treaties attract U.S. diplomats like flames attract moths. It’s hard for the State Department to imagine an international agreement to which America is not part. So the Bush and Clinton administrations renegotiated the convention. The result was a set of amendments approved in 1994, which led most nations to accept the treaty.

Advocates spoke of having “fixed” the treaty. But they had not.

The document isn’t as terrible as before. However, only in Washington does “less bad” count as “good.”

Even the State Department acknowledged that the amended “Agreement retains the institutional outlines of” the original draft. That is, the convention’s principles and basic structure remained the same. Only some details changed.

Every regulatory body survived. The so‐​called “parallel system,” whereby Western miners subsidized the ISA’s Enterprise, persists. Private companies still must survey and provide free mining sites for the Enterprise. Financial redistribution to the Third World continues. The revised treaty, like the original, encourages public cartels while discriminating against American mining firms.

Taxpayers from wealthy states still pay for the privilege of being regulated by a Third World‐​dominated entity. If the U.S. joins it would become the deepest pocket to be picked. The ISA would even be entitled to revenue from oil development on America’s extended continental shelf.

Alas, the institutional safeguards against over‐​spending are limited and temporary. The Clinton administration put great store in exhortation. The 1994 amendments included Section 1, paragraph 3, pledging that “all organs and subsidiary bodies to be established under the Convention and this Agreement shall be cost‐​effective” and Section 5, paragraph 1(c), stating that the royalty “system should not be complicated and should not impose major administrative costs on the Authority or on a contractor.” No doubt, no one would ever violate such precepts.

One of the most important criticisms of the treaty was the mandatory transfer of proprietary mining technology. The revised LOST deleted one provision, but left another unchanged.

The ISA is directed to “promote and encourage the transfer to developing States of such technology and scientific knowledge.” Additionally, the Authority and member nations “shall initiate and promote” programs “for the transfer of technology to the Enterprise and to developing states,” including “facilitating the access of the Enterprise and of developing States to the relevant technology.”

Moreover, the amended text adds new language: “If the Enterprise or developing States are unable to obtain deep seabed mining technology, the Authority may request all or any of the contractors and their respective sponsoring State or States to cooperate with it in facilitating the acquisition of deep seabed mining technology.” What is to stop the ISA from interpreting the revised text to require technology transfers as LOST originally intended?

The potential for dubious “interpretation” is one of the convention’s greatest threats. The U.N. proclaimed that LOST is not “a static instrument, but rather a dynamic and evolving body of law that must be vigorously safeguarded and its implementation aggressively advanced.” Some treaty proponents forthrightly celebrate expansive litigation possibilities.

William C.G. Burns of the Monterey Institute of International Studies argued that LOST “may prove to be one of the primary battlegrounds for climate change issues in the future,” even though no one drafting the convention thought about temperature controls. Burns noted the Treaty’s expansive definition of marine pollution, writing that “the potential impacts of rising sea surface temperatures, rising sea levels, and changes in ocean pH as a consequence of rising levels of carbon dioxide in sea water” could “give rise to actions under the Convention’s marine pollution provisions.” If nothing else, he suggested, “the specter of litigation may help to deepen the commitment of States” to legislate on the issue.

U.S. courts might be obligated to enforce decisions under LOST. Annex III, Article 21(2) states that LOST tribunal decisions “shall be enforceable in the territory of each State Party.” In Medillin v. Texas Supreme Court Justice John Paul Stevens contrasted the Vienna Convention—which the Court determined was not self-enforcing—with LOST, which he argued did “incorporate international judgments into international law.”

LOST supporters warn against discussing such possibilities. Bernard Oxman of the University of Miami acknowledged that the convention “is amply endowed with indeterminate principles, mind‐​numbing cross‐​references, institutional redundancies, exasperating opacity and inelegant drafting.” Thus, after release of the revised agreement he advocated “restraint in speculating on the meaning of the convention or on possible differences between the Convention and customary law” lest critics gain additional ammunition against ratification.

Other LOST supporters simply tell everyone what they think will sell. For instance, groups like World Wildlife Federation and Citizens for Global Solutions contend that LOST could stop Russia from polluting the Arctic. However, treaty proponents simultaneously insist that the agreement would not affect domestic American law. One treaty advocate admitted the contradiction in an email which inadvertently ended up in my hands, noting the consequent difficulty in allaying “conservative fears” of LOST being “some kind of green Trojan Horse.”

When treaty critics point to the continuing economic threat posed by LOST, its advocates try to repackage it as guarantor of America’s navigational freedom. In fact, on this narrow basis the U.S. Navy long has backed the treaty, which expanded territorial seas, created a large exclusive economic zone, and largely codified customary maritime freedoms.

An additional paper guarantee might be nice to have, but as Steven Groves of the Heritage Foundation noted in a recent study, “The navigational rights and freedoms enjoyed by the United States and the Navy are guaranteed not by membership in a treaty, but rather through a combination of long‐​standing legal principles and persistent naval operations.” In any case that really affected U.S. security—think naval transit during a period of crisis or in a war—LOST would not matter.

A country contemplating halting U.S. vessels would weigh its interest and capability, not the treaty’s provisions. Washington responding to foreign interference with navigation would do the same. Over the last couple centuries powerful naval powers, particularly Great Britain (Napoleonic Wars, War of 1812, World War I), Germany (World War I), and the U.S. (Civil War), routinely ignored the protests of neutrals and tramped underfoot customary international law and treaty obligations which restricted maritime operations during war.

Some LOST advocates nevertheless contend that only adherence to the convention will afford America the opportunity to prevent new restrictions on navigational freedom. However, noted Groves: “the evidence indicates that the navigational provisions … are already locked in to the extent that any aspect of international law can be. Indeed, the passage of time has demonstrated that nations—[LOST] members and nonmembers alike—have generally adhered to the convention’s navigational provisions in good faith and that those provisions have endured, not eroded.”

Of course, this doesn’t mean nations don’t sometimes make excessive territorial claims. They do, even after ratifying the convention.

Perhaps the area of greatest controversy is the South China Sea. China vehemently denounced U.S. intelligence activities 75 miles off of China’s Hainan Island and harassed the naval vessel concerned. Washington had the better legal argument, but Beijing’s LOST interpretation was not implausible. In this case only U.S. naval power offered certain, unambiguous protection of navigational freedom.

Beijing has been similarly asserting ownership of islands and control of waters against its neighbors, treaty members all. Nor have the Chinese worried about consistency, sending their survey ships into waters claimed by Japan. Two years ago Director of National Intelligence Dennis C. Blair testified before the Senate Armed Services Committee: “In the past several years, they have become more aggressive in asserting claims for the [EEZ] which are excessive under almost any international code.”

For years America has preserved its maritime freedoms through reliance on customary international law, negotiation with straits and archipelagic nations, and a strong navy. Concluded Groves: “By forgoing [LOST] membership, the United States is in no way hindering its ability to secure, preserve, or otherwise protect its navigational rights and freedoms.” While the convention’s navigation provisions are useful, they cannot justify accepting the rest of the text, most particularly the seabed mining regime.

LOST refuses to die, but it remains a bad deal for America. Despite the 1994 amendments, the convention’s redistributionist economic provisions remain flawed and Byzantine bureaucracy remains counterproductive. The treaty’s navigational guarantees, though much better in substance, are not essential. The U.S. Senate should vote against ratifying LOST and put the treaty out of its misery.

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