Academic journal article Journal of International Affairs

Don't Resurrect the Law of the Sea Treaty

Academic journal article Journal of International Affairs

Don't Resurrect the Law of the Sea Treaty

Article excerpt

More than two decades of negotiation culminated in 1982 with the approval of the Law of the Sea Treaty (LOST) by the Third United Nations Conference on the Law of the Sea (UNCLOS). The United States was not among the 117 nations (and two other delegations) that penned their approval of the treaty, which opened for signature amid great fanfare. American opposition was not without effect, however; the LOST, as the treaty is known, failed to gain the 60 ratifications necessary to go into effect. Even the Soviet Union, which had proudly proclaimed its solidarity with the developing nations pushing the treaty's ratification, did not formally bind itself to the LOST.

No one noticed the treaty's failure. Much of what the LOST covered was already customary international law. Navigation proceeded without hindrance. The treaty's most dramatic innovation, the seabed mining regime, proved unnecessary because seabed mining turned out to be a bust rather than the financial bonanza once predicted; land-based production remained far more accessible and affordable than ocean operations. The international redistributionist campaign known as the "New International Economic Order," of which the LOST was a key component, collapsed amid the socialist wreckage commonly known as the Third World. It became evident that the sort of collectivist economics that wouldn't work domestically also would not work internationally.

But enthusiasm for international agreements is always strong in Washington. The Clinton administration renegotiated the treaty and proclaimed that the problems involving the seabed mining provisions cited by President Ronald Reagan had been fixed. The United States signed the LOST in 1994, setting off a stampede of foreign ratifications. The Republican Senate refused to vote on the LOST under President Bill Clinton, but Senate Foreign Relations Committee Chairman Richard Lugar (R-Ind.) won committee approval in 2004 with the support of President George W. Bush. At her confirmation before Lugar's committee, soon-to-be Secretary of State Condoleezza Rice stated that the President "would certainly like to see it pass as soon as possible." (1)

Continuing opposition has prevented the treaty from reaching the Senate floor, but even some critics of the treaty argue that ratification would be harmless since the LOST doesn't matter--if there's no seabed mining, the regulatory regime does not matter, no matter how awful it is.

So why not ratify the convention? The answer: a bad agreement is a bad agreement. If seabed mining ever becomes economically profitable, it could be crippled by the LOST's unnecessarily complicated rules. The precedential impact of the treaty is even more detrimental to U.S. interests. The LOST creates a collectivist, highly politicized system to govern much of mankind's unowned resources. The more than two decades of experience following negotiation of the treaty have demonstrated that a free and unfettered market is not only more efficient, but also more fair than political control. At a time when the spread of free economic systems has proved to be a boon for the world's poor, the LOST is a reactionary step back into the collectivist past.


Former Maltese UN Ambassador Arvid Pardo, who coined the phrase "common heritage of mankind" for the seabed's resources, reversed his earlier opinion and now calls the system "fatally flawed," complaining that it could "prove to be an enduring economic burden on the international community." (2) Still, some treaty proponents contend that no matter how unfavorable the LOST might be for international mining--most importantly, the mining of manganese (polymetallic) nodules, polymetallic massive sulfides, and cobalt-rich ferromanganese crusts--it is better than having no treaty at all. Without some security of tenure to deep-sea mining sites, it is said that companies would not invest the millions of dollars necessary to begin operations. …

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