Controversial Law of the Sea Treaty deserves to be harpooned

Taipei Times

By Doug Bandow

Tuesday, May 18, 2004, Page 9

Although US President George W. Bush has demonstrated a willingness to stand alone internationally, he has joined Senate Foreign Relations Committee Chairman Richard Lugar in pushing to ratify the Law of the Sea Treaty. Two decades ago the Ronald Reagan administration said no and now, with opposition building, Majority Leader Bill Frist says there might not be time for a vote this year.

Actually, the Law of the Sea Treaty doesn't deserve a vote now or later. It is no more worthy of approval today than in 1982.

The convention covers fishing, environmental, resource and navigation issues. Its most controversial provisions involved seabed mining, which were designed to transfer wealth and technology from the industrialized states to the Third World.

Reagan ignored criticism of US unilateralism and rejected the treaty. But the Bill Clinton administration signed a revised agreement in 1994, leading to a cascade of ratifications from other countries.

Although Republican Party gains in Congress dissuaded the Clinton administration from pushing the treaty, Bush is now pushing it. Unfortunately, the revised Law of the Sea Treaty retains many of its original flaws.

There still is an Authority with a mining subsidiary, the Enterprise, ruled by a complicated system of an Assembly and a Council, and various commissions and committees. Mining approval would remain highly politicized. Companies would owe substantial fees to the International Seabed Authority (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, governments are required to facilitate technology transfers if the Enterprise and Third World competitors are "unable to obtain" the necessary equipment commercially.

The Authority, though so far of modest size, would suffer from the same perverse incentives which afflict the UN, since the US would be responsible for 25 percent of the budget. The US lacks the influence provided by its UN Security Council veto.

With no seabed mining in the offing, the ISA has been worrying about such critical issues as 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." Relations with the host government also have been difficult; the Jamaican government has periodically turned off the ISA's air conditioning.

The mining scheme is flawed in its very conception. All that seabed mining requires is a simple system for recognizing minesites and resolving disputes.

The treaty is not without benefits. Provisions regarding the environment, resource management and transit are generally positive, though many reflect what is now customary international law. Nevertheless, perhaps the strongest support for the treaty emanates from the US Navy.

But transportation gains, though real, are limited. No country anywhere is threatening to impede US transit. Although the Law of the Sea Treaty advances navigational freedom, some provisions are ambiguous, undermining their value.

In his testimony last fall, State Department legal adviser William Taft 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."

Other members might not respect that claim, however. Admiral Michael Mullen, Vice Chief of Naval Operations, acknowledges the possibility that a Law of the Sea Treaty 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 US Navy, combined with friendly relations with the few states that sit astride important sea lanes. Alas, international law did not help the US in its confrontation over its EP-3 surveillance plane with China.

Nor has treaty membership prevented Brazil, China, India, Malaysia, North Korea, Pakistan and others from making ocean claims deemed excessive by some. In October 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 Washington's original refusal to sign predicted ocean chaos, but not once has a US ship been denied passage. Indeed, Assistant Secretary of State John Turner admits that the US has "had considerable success" in asserting "its oceans interests as a non-party to the Convention." Ironically, problems cited by US shippers involve alleged misinterpretations of the treaty, not the US' lack of membership.

Finally, the Law of the Sea Treaty may encourage the UN to venture into new territory. The UN's Division for Ocean Affairs and the Law of the Sea has boldly announced that the treaty "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."

Reagan was right to torpedo the Law of the Sea Treaty two decades ago. The Senate should reject a new UN oceans bureaucracy today for the same reasons.

Doug Bandow is a Senior Fellow at the Cato Institute. While a Special Assistant to former US president Ronald Reagan, he served on the US delegation to the Third UN Conference on the Law of the Sea.