Article published Nov 15, 2007
The mythical Flying Dutchman, a ghost ship doomed to forever roam the seas, was an ill omen for sailors.
Like that ship, the Law of the Sea Treaty continues to haunt policymakers, explains Doug Bandow of the Competitive Enterprise Institute.
"Bad treaties never die," Bandow says. "Such is the lesson of the Law of the Sea Treaty, or LOST. Now being pushed by the Bush administration and Senate Foreign Relations Committee Chairman Joseph Biden (D-Del.), the treaty would turn over all of the world's unclaimed natural resources to a second United Nations."
The treaty has been around for three decades.
"President Ronald Reagan refused to sign the LOST in 1982, after which no major nation, even the Soviet Union, bound itself to the treaty," Bandow says. "The agreement sank beneath the waves, leaving no trace."
But Presidents George H.W. Bush and Bill Clinton tried to revive the treaty.
"(Clinton's) Secretary of State Madeleine Albright won a few small concessions and proclaimed victory," Bandow recounts. "The United States signed, setting off an international stampede. Although opposition in the Republican Senate prevented ratification, more than enough other countries assented, bringing LOST into effect. Now the LOST is before the Senate."
And it has the support of President George W. Bush.
"In broad sweep, LOST covers three subjects," Bandow explains. "The first area includes exclusive economic zones, fishing, marine research, ocean pollution, and oil exploration. These provisions, though generally non-controversial, are not without adverse effect. For instance, energy companies will owe the International Seabed Authority royalties up to 12 percent on any oil produced from the Outer Continental Shelf beyond 200 miles. This may be the first global tax imposed on Americans without congressional approval."
And activists here and in other countries could misuse portions of the treaty, Bandow warns.
"William C.G. Burns of the Monterey Institute of International Studies calls LOST 'a promising instrument through which such [legal] action might be taken, given its broad definition of pollution to the marine environment and the dispute resolution mechanisms contained within its provision.' A flood of international lawsuits under LOST could undermine U.S. prosperity and sovereignty," Bandow says.
Some argue that the United States must be a party to the treaty if it hopes to dispute Russia's recent claim to the North Pole.
"However, the agreement respects the rights of nonmembers, while other interested parties, most notably Canada and Denmark, can resist Russia's claims within LOST," Bandow says.
And LOST's affirmation of navigational freedom is a poor substitute for the current system, based on customary international law.
"Paper guarantees would provide little aid in any crisis," Bandow says. "Agreements with countries that control critical waterways, backed by a strong navy, offer the best protection of U.S. rights."
But the most contentious part of the treaty is seabed mining.
"Maybe ocean mining will never be viable, so turning vast resources over to yet another inefficient, politicized, and corrupt international organization won't matter," Bandow says. "But such a byzantine regulatory structure is likely to discourage entrepreneurship in related fields, especially the development of technology, software, and other products with multiple ocean uses. Further, applying such a principle to other unowned resources, such as outer space, would discourage private innovation in that field."
Simply put, the treaty is bad policy, both now and in the future.
"The LOST is not without benefits, but most can be enjoyed without ratifying the treaty," Bandow says. "Unfortunately, the costs of joining are too high. Surely we should have learned by now that (collectivist) economics will always fail. Enshrining collectivism as international law through creation of a mini-me United Nations would be as foolish as it would be costly."