Deep-Six the Law of the Sea

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WALL STREET JOURNAL



November 20, 2007


COMMENTARY


By THOMAS A. BOWDEN
November 20, 2007; Page A18


The Law of the Sea Treaty, which awaits a ratification vote in the U.S. Senate, declares most of the earth's vast ocean floor to be "the common heritage of mankind" and places it under United Nations ownership "for the benefit of mankind as a whole."


This treaty has been bobbing in the legislative ocean for the past 25 years. After President Ronald Reagan refused to sign it in 1982, repeated attempts at ratification have failed. Last month, however, the Senate Foreign Relations Committee voted 17-4 to send it to the full Senate, where a two-thirds majority is required to ratify.


What's at stake are trillions of tons of vital minerals such as manganese, nickel, copper, zinc, gold and silver -- enough to supply current needs for thousands of years -- spread over vast seabeds constituting 41% of the planet's area. Senate ratification would signify U.S. agreement that the International Seabed Authority, a U.N. agency based in Jamaica, should own these resources in perpetuity.


Why should we agree to this?


Like any other hard-to-reach resources, these undersea minerals are completely valueless where they now rest. What is it that makes such resources actually valuable? It is the thinking and action of inventors, engineers, explorers and entrepreneurs who devote their mental energy to the task of finding and retrieving them. These undersea pioneers don't just find wealth, they create wealth -- by bringing a portion of nature's bounty under human control.


Despite the treaty's allusion to seabeds as the "common heritage of mankind," mankind as a whole has done exactly nothing to create value in the deep ocean, which is a remote wilderness, virtually unexploited. Under the proposed treaty, however, the ocean mining companies -- whose science, exploration, technology, and entrepreneurship are being counted on to gather otherwise inaccessible riches -- are treated as mere servants of a world collective.

In practice, under the treaty's explicitly socialist approach, mining companies operate as mere licensees who must render hefty application fees as well as continuing payments (read: taxes) and obtain prior approval at every stage of work, under regulations that emerge sluggishly from multinational committees.


Licensees must also enrich a U.N.-operated competitor called, spookily enough, "The Enterprise." For every square mile of ocean bottom a licensee explores, half must be relinquished to The Enterprise, free of charge -- and the Enterprise gets to pick the better half.


Licensees must also make available, on so-called reasonable commercial terms, their technology and know-how, and even train this giant competitor's personnel. At the end of the day, profits from The Enterprise, along with taxes from licensees, are distributed to U.N. member-nations such as Cuba, Uganda and Venezuela, who contribute nothing to the productive process.




[THIS PRINCIPLE HAS SINCE BEEN INCORPORATED INTO THE UNITED NATIONS DOCTRINE OF MALTHUSIAN 'NEGATIVE' SUSTAINABLE DEVELOPMENT, AS DEFINED BY THE 1987 GRO HARLEM BRUNDTLAND REPORT]**



The treaty simply assumes as a self-evident truth that wealth sharing is the moral duty of the haves toward the have-nots, and that the world's needy nations have a moral claim on the wealth created by undersea miners. But we should pause to challenge both that moral assumption and its legal implications.


Morally, undersea mining operations are entitled to own outright those portions of the ocean floor they exploit, by virtue of the productive effort they expend. Producers in general are morally entitled to live and work for their own sake, keeping the wealth they create without any moral debt to those who didn't create it. Because nature requires us to be productive in order to live, the businessman's pursuit of profit is properly regarded as a virtue, not a vice indebting him to a hungry planet.


Legally, this viewpoint is embodied in the American ideals of life, liberty and the pursuit of happiness, secured by private property rights. A historical example of the proper principle in action is the Homestead Act of 1862. Farmers acquired property rights, i.e., private deeds, to 270 million acres of fertile Midwest prairie land by the productive act of farming it, parcel by parcel.


Suppose, instead, that the U.S. government had issued only licenses, not deeds, for the acreage those farmers carved out of wild prairie land. Then suppose the government had transferred half that hard-won acreage to "The Farm," a giant government-owned competitor whose field hands the farmers would be expected to equip and train. Of course, such a travesty would have been unthinkable in the relatively capitalistic 19th century.


Governments today have legitimate options regarding how to deal with undersea explorers' need to establish property rights in the deep ocean. But it would be totally improper for America to declare eternal hostility to private property in the ocean floor by ratifying a treaty dedicated on principle to denying such rights.


Mr. Bowden, a former attorney and law school instructor, is an analyst focusing on legal issues at the Ayn Rand Institute.