LOST at Sea

Secretary of State John Kerry has a full political agenda.  One likely action item will be the Law of the Sea Treaty (LOST), which long has bedeviled Washington.

President Ronald Reagan refused to sign the omnibus agreement.  However, the UN convention refused to die.  It was revived by George H.W. Bush and Bill Clinton, backed by George W. Bush, and endorsed by Barack Obama.

LOST is the sort of esoterica which fills Washington.  The agreement took three UN conferences over decades to negotiate.  It mixed unrelated issues:  navigation, seabed mining, environmental protection, fishing.  It is long, complex, and counterproductive.  Its genesis was a different world:  social engineering was the rage in Washington, communism seemed to be on the march, and Third World dictatorships claimed the moral high ground.  Indeed, LOST was seen as an important tool to advance what was then called the New International Economic Order (NIEO).

The purpose of the NIEO was to internationalize resources under UN control and redistribute wealth from the exploitative First World to the victimized Third World.  The Nixon and Carter administrations were inclined to go along, but not President Reagan.

Today the NIEO is gone, swept away along with communism and other forms of collectivism.  Nevertheless, LOST remains, promoted as a panacea for most every international problem.

LOST will preserve and expand navigational freedom.  It will contain Chinese maritime ambitions in East Asia.  It will preserve Arctic territorial claims.  It will expand oil exploration.  It will promote seabed mineral development.

If only that were true.

LOST is the ultimate Rube Goldberg construct.  The convention created the International Seabed Authority (ISA), headquartered in Jamaica—public service can be so hard!—to govern seabed exploration and development.  Mining the seabed for the world is “the Enterprise.”  The Hamburg-based International Tribunal for the Law of the Sea adjudicates oceans disputes.

The ISA is governed by an Assembly, Council, and various chambers, commissions, and committees.  The complicated rules were written when everyone from First World lobbyists to Third World autocrats imagined bringing up billions of dollars of seabed resources and redistributing the resulting cash.  The Nixon and Carter administrations were happy to trade off promises of financial redistribution in return for promises of navigational freedom.

Not so Ronald Reagan.  Customary international law already preserved transit freedoms; there was no need to create a mini-UN to mulct Americans in order to convince non-maritime states to endorse U.S. navigational rights.  He refused to sign LOST in 1982, shocking international activists, bureaucrats, and diplomats.  Washington was widely criticized by other nations, but the Europeans and Soviets also refused to ratify the convention.  And as the global enthusiasm for socialism ebbed, even many Third World states acknowledged that the Reagan administration had been right.  Markets flourished where collectivism once reigned.

Yet American diplomats cannot imagine an international treaty which Washington does not join.   So the Bush administration began to renegotiate the agreement, a process finished by the Clinton administration, which claimed to have “fixed” the treaty and then signed the convention in 1994.  Since then advocates have been badgering the U.S. Senate to ratify LOST.

However, the treaty has not aged well.  The agreement remains a creature of its time, created for the purpose of restricting economic development and promoting wealth redistribution.  The Clinton administration succeeded in moderating the damage but not in changing the convention’s essential character.

The ISA, Enterprise, Assembly, Council, and every other body remain.  The U.S. gained a little influence bureaucratically, but not enough to guarantee against misgovernment and over-spending.  For instance, the 1994 amendments include a pledge that “all organs and subsidiary bodies to be established under the Convention and this Agreement shall be cost-effective” and a statement that the royalty “system should not be complicated and should not impose major administrative costs on the Authority or on a contractor.”  Alas, these provisions are not self-enforcing.

Moreover, the system still requires private firms to turn a mine site over to the authority.  The ISA would continue to collect revenues from the West, including for oil development on America’s Outer Continental Shelf.  Money is still redistributed to the Third World.

Other obnoxious requirements remain—slightly diluted, but still threatening U.S. interests.  For instance, the original text required the transfer of proprietary mining technology to Third World nations and the Enterprise.  The 1994 amendments retained one provision, dropped another one, and added additional language.  Countries are still required to facilitate “the access of the Enterprise and of developing States to the relevant technology.”   Which could be interpreted by the Tribunal as mandating technology transfers.

Perhaps LOST’s greatest danger is inventive “interpretation” by the Tribunal and other bodies.  For instance, the Tribunal has typically handled a case or two a year involving such issues as fisheries.  But last year the jurists—including frustrated ISA politicos—decided a case involving an Argentine ship docked in Ghana claimed by foreign creditors.  The court ordered the boat’s release, ignoring relevant national law.

This should come as no surprise, however.  Long ago, the UN announced that the treaty is not “a static instrument, but rather a dynamic and evolving body of law that must be vigorously safeguarded and its implementation aggressively advanced.”

Moreover, treaty proponents admit that they hope to turn LOST to their litigation advantage.  For example, William C.G. Burns of the Monterey Institute of International Studies contended that the convention “may prove to be one of the primary battlegrounds for climate change issues in the future,” even though at the time the treaty was negotiated people were worried about a new Ice Age rather than global warming.

Burns cited the Treaty’s expansive definition of marine pollution, observing 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.”  He also was hopeful that “the specter of litigation may help to deepen the commitment of States” to address the issue.

No matter how bad the decision, American courts might be required to enforce Tribunal opinions purporting to interpret the treaty.  Annex III, Article 21(2) states that such 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 decided was not self-enforcing in this way—with LOST, which he stated did “incorporate international judgments into international law.”

Convention advocates don’t disagree.  They just try to hide the facts.

For instance, Bernard Oxman, who helped develop LOST and spent years advancing his handiwork, admitted that the document “is amply endowed with indeterminate principles, mind-numbing cross-references, institutional redundancies, exasperating opacity and inelegant drafting.”  The 1994 amendments only added to the confusion.  His response?  To urge “restraint in speculating on the meaning of the convention or on possible differences between the Convention and customary law.”  He didn’t want treaty opponents to amass additional ammunition for use against ratification.

In short, LOST remains a bad deal.  And there’s not enough good in it to accept the abundant bad.  It’s nice that the convention purports to protect navigational freedom, but far more important are a mix of customary international law, positive bilateral relationships, and strong naval forces.  Moreover, in any crisis a UN treaty would not stop another nation that believed it had both the interest and force necessary to challenge Washington.

Particularly strange is the contention that American adherence to the convention would constrain Chinese territorial claims in the South China Sea and Sea of Japan.  Beijing is a member of LOST and is using the treaty to back up its claims.  Nor is China the only convention adherent making contested claims.  Unfortunately, the text is not unambiguous, and even if it was American ratification would change nothing.

Like a bad dream, LOST keeps returning to unsettle Washington policymakers. This is a treaty that should finally be lost at sea.

Doug Bandow

Doug Bandow is a Senior Fellow at the Cato Institute. A former Special Assistant to President Ronald Reagan and Deputy Representative to the Third United Nations Conference on the Law of the Sea, Bandow is the author and editor of several books, including Foreign Follies: America’s New Global Empire (Xulon Press).

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