International Fraud and the Law of the Sea Treaty

The most important treaty that most people have never heard of is moving closer to ratification. The Senate Foreign Relations Committee held its first hearing on the Law of the Sea Treaty (LOST) last Thursday. Natually, only pro-LOST witnesses, from the supposedly conservative Bush administration, were invited to share their views.

This coming Thursday will be a second hearing, at which CEI’s Fred Smith, joined by Frank Gaffney of the Center for Security Policy, will explain why accepting LOST would be a bad idea. Along with them will be another five proponents. Balance has never been in high demand on Capitol Hill.

Moreover, the treaty’s advocates are determined to downplay the likely impact of their handiwork. As I explain in a new CEI study, the LOST creates a bizarre regulatory system that threatens not just ocean mining, but technology, software, and entrepreneurial advances in other fields as well.

Perhaps most worrisome is the fact that treaty proponents simply cannot be trusted. They have adopted a strategy of hiding their goals until the U.S. commits itself. Only then will we suffer the full effects of ratification.

Bernard Oxman, a professor at the University of Miami Law School, whom I met when I handled the issue for the Reagan White House in 1981 and 1982, warned his fellow LOST enthusiasts back in 1996 to temper their short-term conduct in order to advance their long-term objective — winning U.S. ratification. As he explained in the European Journal of International Law:

Global ratification is by no means assured. At best, it is unlikely to be achieved for several more years. In the interim, governments, legislators and interest groups will scrutinize the emerging interpretations and applications of the Convention as they attempt to reach a final determination. Those who have already chosen sides will seek every possible source, however unwitting, to bolster their argument. In particular, those who are reluctant to embrace the shift from unilateralism to multilateralism will look for any sign that their own interests are better served by remaining outside the Convention.

In considering treaties, members of parliaments are sometimes more concerned with the restraints that may be imposed on their own perceived freedom of action in some particular respect than with the overall benefits of regulating the behavior of other states under the treaty.⁸ Ratification of so-called law-making treaties especially may suffer from the seductive temptation to regard them as `generally’ declaratory of customary international law while preserving the theoretical option not to regard some particular rule in the treaty as declaratory of customary law should the need arise.

This means that those who wish to realize fully the contributions of the Convention to the rule of law will need to exercise restraint and wisdom in at least the immediate future lest they complicate the ratification process in one or more states. Politically, this suggests caution regarding the organization, composition and budgets of the new institutions established by the Convention. Legally, this suggests restraint in speculating on the meaning of the Convention or on possible differences between the Convention and customary law.

The Convention is an easy target. Like many complex bodies of written law, it is amply endowed with indeterminate principles, mind-numbing cross-references, institutional redundancies, exasperating opacity and inelegant drafting, not to mention a potpourri of provisions that any one of us, if asked, would happily delete or change. The trick, as we are fond of saying in the United States, is to `keep your eye on the ball.’ For those of us for whom strengthening the rule of law is the goal, and global ratification of the Convention is the means, it is essential to measure what we say in terms of its effect on the goal. Experienced international lawyers know where many of the sensitive nerve endings of governments are. Where possible, they should try to avoid irritating them.

Yes, please, don’t irritate us. Be nice to us and get us to sign, and then you won’t have to worry about irritating us. Ever again.

The LOST is a bad deal. Rushing it through the Senate is an especially bad deal. This is a moment when it is critically important for the U.S. Senate to live up to its claim to be the world’s most important deliberative body.