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The genesis of the Law of the Sea Treaty (LOST), widely known as the “constitution of the oceans,” runs back more than 60 years. The negotiations were captured by Third World states in the 1970s, leading President Ronald Reagan to reject the treaty in 1982 as contrary to American interests.
The Clinton Administration revived the treaty, which led to some countries in Europe and elsewhere to put the treaty into effect. America signed, but opposition in the Republican-controlled Senate prevented ratification. Now President George W. Bush and the Senate Democratic majority are pushing the treaty forward. Despite the broad support now accorded to the LOST, ratification would not be in America’s interest. And any purported benefits would be negligible. Its best provisions, covering exclusive economic zones and navigational freedom, for instance, largely codify existing international law.
Moreover, in the case of a foreign challenge, the LOST would offer little benefit. U.S. naval vessels, not international paper guarantees, would ensure American ocean passage.
The treaty’s worst provisions, those creating the seabed regulatory regime, are very bad indeed. Despite the oft-repeated claim that the 1994 accord “fixed” the treaty, LOST remains true to its radical origins. Although some of the treaty’s worst provisions have been modified, it still establishes a bizarre regulatory regime to govern seabed mining—which would be antagonistic to commerce, exploration, and investment.
The LOST treats the ocean’s unowned seabed resources as property of the United Nations (U.N.). It essentially creates a second U.N.—the International Seabed Authority, ruled by an Assembly and a Council—to govern deep seabed mining and redistribute income from the industrialized West to developing countries. The Enterprise would mine the ocean floor, with the coerced assistance of Western mining companies, on behalf of the Authority. The system is unique in its byzantine perversity.
As such, the LOST would discourage future minerals production as well as punish entrepreneurship in related fields involving technology, software, and other processes with an ocean application. Ratifying the treaty, a disastrous throwback to the era when socialism was seen as the wave of the future, would be especially foolish today, in a world of exploding economic opportunities and technological possibilities. A LOST-like regime also would discourage exploration of other, currently unowned resources, most notably space.
International cooperation to develop the ocean floor can best occur outside of an international bureaucracy. A treaty among nations with a vested interest—those likely to be affected—would enable development to proceed. As for the LOST, the seabed provisions should be severed from sections governing navigational freedoms and resource management, which should be considered separately.
A law of the sea treaty could advance international cooperation in a number of maritime issues and be worth ratifying. The Law of the Sea Treaty offers some benefits, but the costs of the omnibus measure are too high. At risk is an open international economic environment inviting to entrepreneurs. The U.S. should not ratify the LOST.