The Magazine

Sink the Law of the Sea Treaty

Still crazy after all these years.

Mar 15, 2004, Vol. 9, No. 26 • By DOUG BANDOW
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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.