No. 552 October 13, 2005 Routing

Don’t Resurrect the Law of the Sea Treaty by Doug Bandow

Executive Summary

For more than 20 years, the United States has the treaty governing seabed mining. The provi- refused to become a party to the Law of the Sea sions of Section XI may have the effect of forever Treaty. Advocates of the treaty, a comprehensive discouraging such operations, even where there measure governing navigational rights on the sea might be huge benefits. Regulations are to be and mineral rights on the seabed, claimed that U.S. administered through a complicated system of failure to join the convention would result in chaos committees and agencies within the International on the high seas. It has not. Very few Americans Seabed Authority, a creation of the United know anything about the treaty, and even advo- Nations that has ultimate jurisdiction over the cates are hard-pressed to explain how the United agreement. States would benefit from its adoption. Funding for the ISA, and for enforcement of A round of changes to the document won the the LOST, would flow disproportionately from support of the Clinton administration, which the United States. The ISA’s current budget is signed the treaty in 1994, but those changes modest, but the revised agreement changed none failed to attract sufficient support from the of the underlying institutional incentives that bias Senate. The LOST has languished unratified for virtually every international organization, most more than 10 years. obviously the UN itself, toward extravagance. The logjam appears to have broken, with Some supporters of the treaty insist that the prominent Republicans, and the president him- LOST is essential to establishing the rule of law self, signaling support for ratification. But the on the high seas and will, therefore, aid in the changes made to the LOST over the years have not fight against global terrorism. If the stakes are altered its fundamental principles, which are col- that high, it is crucial that the treaty be a good lectivist in nature and inimical to U.S. interests. one. America’s interests will be best served if the Most objectionable is Section XI, that portion of Senate rejects the LOST.

______Doug Bandow is a senior fellow at the Cato Institute. He served as a special assistant to President Ronald Reagan and was a deputy U.S. representative to the Third UN Conference on the Law of the Sea. The LOST creates Introduction mittee approval of the treaty last year with a collectivist, the support of President Bush. At her confir- More than two decades of negotiation cul- mation hearing before Lugar’s committee, highly politicized minated in 1982 when the Third United soon-to-be secretary of state Condoleezza system to govern Nations Conference on the Law of the Sea Rice stated that the president “would certain- 2 much of the (UNCLOS) approved the Law of the Sea ly like to see it pass as soon as possible.” Treaty. The United States was not among the Yet, despite that impressive line-up, the unowned more than 100 countries that signed the treaty has yet to reach the Senate floor. Rather resources of treaty. U.S. opposition was not without effect, than acknowledge any flaws in the convention, however: the LOST, as the treaty is known, Benjamin and Daniel Friedman charged that mankind. failed to gain the 60 ratifications necessary to the LOST was blocked by “a few zealots” who make it take effect. Even the , were “cowing the White House and Senate.”3 which had proudly proclaimed its solidarity Tying up the treaty was a surprisingly impres- with the developing nations pushing the sive achievement for just “a few zealots.” treaty, did not formally bind itself. Nevertheless, a spokesman for Senator Lugar No one noticed the treaty’s failure to take called Secretary Rice’s comments “a break- effect. Much of what the LOST covered was through” and promised that the treaty would already customary international law. Navi- go to the floor “sooner rather than later.”4 gation proceeded without hindrance. The Even some critics of the treaty argue that most dramatic innovation, the seabed mining the specifics don’t matter—for example, if regime, proved unnecessary. Seabed mining there’s no seabed mining, the regulatory turned out to be a bust rather than the finan- regime is irrelevant, no matter how awful. So cial bonanza once predicted; land-based pro- why not ratify the convention? duction remained far more accessible and Because a bad agreement is a bad agree- affordable than ocean operations. The inter- ment. If seabed mining ever becomes eco- national redistributionist campaign known as nomical, it could be crippled by the LOST’s the New International Economic Order col- unnecessarily complicated rules. The prece- lapsed. It became evident that the sort of col- dent the treaty sets is even worse. The LOST lectivist economics that wouldn’t work creates a collectivist, highly politicized sys- domestically wouldn’t work internationally. tem to govern much of the unowned Enthusiasm for international agreements resources of mankind. The more than two remains strong in Washington, however, in decades since treaty negotiations began have spite of perceived Bush administration uni- demonstrated that markets are not only lateralism. The Clinton administration, more efficient but are more equitable than which renegotiated the treaty and pro- central control—particularly when the con- claimed that the problems cited by President trol is exercised by multilateral international Ronald Reagan had been fixed, signed the institutions. At a time when the spread of revised treaty in 1994, setting off a stampede free economic systems has proved to be a of foreign ratifications that brought the con- boon for the world’s poor, the LOST is a step vention into effect in November of that year. back into the collectivist past. But the Republican Senate refused to take up the LOST for ratification during Clinton’s tenure in the White House. That reluctance What Is the LOST? changed after George W. Bush became presi- dent. In November 2004, analysts Benjamin President Truman’s 1945 proclamation and Daniel Friedman wrote of the “stunning asserting U.S. jurisdiction over America’s con- array of interests” that had endorsed the tinental shelf, and similar extensions of LOST.1 Senate Foreign Relations Committee national control by other states, served as the chairman Richard Lugar (R-IN) won com- genesis for the LOST, because it prompted

2 renewed interest in property rights on the As originally written, the treaty was explicit- seabed. The desire to standardize those sorts ly intended to restrict mineral development. of international claims led to the first UN Among the treaty’s objectives were “rational Conference on the Law of the Sea (UNCLOS management,” “just and stable prices,” “orderly I), which gathered in 1958 to deal with and safe development,” and “the protection of resource jurisdiction and fishing. UNCLOS II developing countries from the adverse effects” convened in 1960 to take up unresolved fish- of mineral production. The LOST explicitly ing and navigation issues. Soon thereafter the limited mineral production and authorized possibility of seabed mining led the United commodity cartels (rather like OPEC). Further, Nations to declare the seabed to be the “com- the treaty placed a moratorium on the mining mon heritage of mankind.” A Seabed Com- of some resources, such as sulfides, until the mittee was established, eventually leading to Authority adopted rules and regulations— UNCLOS III, which first met in 1973. Nine which might never have happened. years and 11 sessions later, a treaty was born. The procedures governing mining reflect- The LOST, which runs 175 pages and con- ed that anti-production bias. A firm would tains 439 articles, covers seabed mining, nav- have been required to survey two sites and igation, fishing, ocean pollution, and marine turn one of them over gratis to the Enterprise research, as well as the creation of economic before even applying for a permit. The The LOST’s zones (subject to national regulation). Much Authority had the power to deny an applica- fundamental of the treaty is unobjectionable, or at least tion if the operation would violate the treaty’s premise is that unimportant when in error. The navigation anti-density and anti-monopoly provisions, sections codify current transit freedoms and aimed at U.S. operators. And the ISA’s deci- all unowned are thus a modest plus. sions in this area were to be set by a subsidiary resources on the Very different is Part XI, as the provisions body, the Legal and Technical Commission. ocean’s floor governing seabed mining beyond national Developing countries would dominate the 36- jurisdiction are called. So flawed is this sec- member council, as they did the Assembly, belong to the tion that it can be truly “fixed” only by tear- leaving access of American firms to the deep “people of ing it up. seabed (that beyond national jurisdiction) The LOST’s fundamental premise is that dependent on the whims of countries that the world”— all unowned resources on the ocean’s floor might oppose seabed mining for economic or effectively belong to the “people of the world”—effec- political reasons. the UN. tively the UN. But an international regulato- ry system would likely inhibit development, depress productivity, increase costs, and dis- Who Would Want to Bid? courage innovation, thereby wasting much of the benefit to be gained from mining the Under the original LOST, it is not clear oceans. The Byzantine regime created by the why a firm would have wanted to bid, even if LOST was, and remains, almost unique in its it thought it could win approval. The con- perversity. In the original agreement, the UN vention would have required private entre- would have asserted its control through the preneurs to transfer their mining technology International Seabed Authority, ruled by an to the Authority, for use by the Enterprise Assembly dominated by poorer nations and a and developing states. The term “technolo- council that would regulate deep seabed min- gy” was so ill-defined that the Authority ing and redistribute income from the indus- might have been able to claim engineering trialized West to developing countries. The and technical skills as well as equipment, yet ISA would employ as its chief subsidiary to the treaty imposed no effective penalties on mine the seabed a body called the Enterprise, transferees for improper disclosure or misuse which would enjoy the coerced assistance of of technology. Miners would also have been Western mining companies. required to pay their overseer, the ISA, and

3 their competitor, the Enterprise, $500,000 to nodules, polymetallic massive sulfides, and apply and $1 million annually plus a royalty cobalt-rich ferromanganese crusts—it was fee. The sponsoring country would have been better than nothing. Without some security responsible if a firm failed to pay; moreover, of tenure in deep-sea mining sites, supporters the industrialized West would have had to of the treaty contended, companies will not provide interest-free loans and loan guaran- invest the millions necessary to begin opera- tees, for which Western taxpayers would have tions. Certainly firms will not take the poten- been liable in the event of a default, to the tially enormous risks of such a new venture if UN’s mining operation. they might face conflicting site claims. All told, the Enterprise was to enjoy free However, most businessmen understand mine site surveys, transferred technology, and that it makes little difference whether or not, Western subsidies. The Enterprise would have say, Congo, recognizes their right to harvest also been exempt from Authority taxes and manganese nodules in the Pacific. Indeed, royalty payments. Also favored were develop- given the dynamics of seabed mining, it prob- ing states and “land-locked and geographical- ably doesn’t even matter if other industrialized ly disadvantaged” countries (there were 105 of nations with firms capable of mining the the latter when the convention was concluded, ocean floor recognize one’s claim. In all but and there are even more today). the most unusual cases, the seabed’s irregular Even the attenuated private right to mine geography and surplus of nodules make the seabed could have been dropped at the “poaching” uneconomical—it would make review conference, to be held 15 years after the more sense to develop a new site than to commencement of commercial operations, if attempt to overrun someone else’s. three-fourths of the member states so decided. In any case, it would have been quite simple The mere possibility of a Third World majority to build an alternative to the LOST. In 1980 effectively confiscating potentially enormous Congress passed the Deep Seabed Hard investments made over more than a decade Minerals Act to provide interim protection for would have discouraged private entrepreneurs. American miners until Congress ratified an That, in turn, would have given the well-pam- acceptable LOST. The act could simply be pered Enterprise and likely state-subsidized amended to create a permanent process for firms of developing states a further advantage recording seabed claims and resolving con- over their private competitors from the West. flicts. Such legislation could then be coordi- nated with that of the other leading industrial- ized states. In September 1982 Britain, France, Collectivism or Chaos? Germany, and the United States signed the Reciprocating States Agreement to provide for It was Arvid Pardo, then ambassador to the arbitration of competing claims. Such an infor- from the island nation of mal system could have been upgraded into a , who in a speech to the General Assembly formal treaty, authorizing each nation to over- in 1967 coined the phrase the “common her- see its own companies’ activities and creating a itage of mankind” to encapsulate the philoso- mechanism for resolving conflicts. No interna- phy underlying the LOST. Years later, though, tional bureaucracy would have been necessary. Pardo called the system envisioned by the Instead, the LOST creates a horribly com- An international LOST “fatally flawed” and complained that it plex regulatory system, meaning that, in this could “prove to be an enduring economic bur- case, a bad treaty is worse than no treaty. As bureaucracy den on the international community.”5 the LOST was being negotiated, the American for resolving Still, some proponents of the treaty con- Mining Congress observed the following: tended that no matter how unfavorable the conflicts is not LOST might be for international mining— While the best of all worlds would be a needed. most important, manganese (polymetallic) comprehensive, universally acceptable

4 treaty, a treaty such as the current UNC- market principles to the development of the Washington LOS draft that fails to protect American deep seabed” and establishing “a lean institu- should have interests is no basis for investment. We tion that is both flexible and efficient.”10 Two can easily do without the “comprehen- days later the Clinton administration formally pressed to sive” and “universal,” but we cannot do affixed its signature to the convention.11 On separate seabed 6 without “acceptable.” November 16, the required 68th country rati- mining from fied the LOST, bringing it into effect. Clinton officials argued that they had transformed the other maritime Putting Old Wine in treaty. “We have been successful in fixing all the issues if it desired New Wineskins major problems raised by the Reagan adminis- tration,” explained chief State Department to revisit its The U.S. refusal to sign the treaty after its negotiator Wesley Scholz. “We have converted earlier refusal to completion in 1982 generated anguish among the seabed part of the agreement into a mar- sign the treaty. internationalists, but the world has since ket-based regime.”12 moved America’s way. As mineral prices The George W. Bush administration is now declined, so too did the prospects of massive making a similar argument. The Department resource harvests from the seabed. Poorer of State’s legal adviser, William H. Taft IV, tes- states saw their expected LOST windfall disap- tified before the Senate that the changes in pear. And, as developing countries started lib- “the 1994 Agreement overcome each one of eralizing their economies, they backed away the objections of the United States to Part XI from the wide-ranging “New International of the convention and meet our goal of guar- Economic Order,” a concerted international anteed access by the U.S. industry to deep campaign in the 1970s and 1980s that sought seabed minerals on the basis of reasonable to promote income redistribution from the terms and conditions.”13 John F. Turner, assis- industrialized “North” to the impoverished tant secretary of state for oceans and interna- “South.” By the early 1990s some Third World tional environmental and scientific affairs, diplomats were privately admitting that the contends that “the changes set forth in the Reagan administration had been right to kill 1994 Agreement meet our goal of guaranteed the treaty.7 access by U.S. industry to deep seabed miner- But some bad ideas seem never to die, espe- als on the basis of reasonable terms and con- cially in Washington. Policy proposals simply ditions.”14 Ocean affairs writer George lie dormant, waiting for a sympathetic bureau- Galdorisi argued that “previous U.S. objec- crat or politician to revive them. Indeed, inter- tions to the convention have been resolved.”15 national treaties attract State Department Similarly, Friedman and Friedman exult that negotiators like moths to a flame. Washington “twelve years of further negotiation [after should have pressed to separate seabed min- Reagan’s 1982 rejection of the accord] got the ing from other maritime issues if it desired to United States what it wanted.”16 return to the issue. Instead, the George H. W. Not quite, actually. At the final session of Bush administration began consultations the Third United Nations Conference on the with other nations to “fix” the LOST in 1990, Law of the Sea in New York in 1982, the U.S. and that process accelerated under the delegation submitted an extensive list of pro- Clinton administration.8 posed amendments.17 They were rejected out After getting other leading states to agree to of hand, even though the Reagan adminis- changes in some of the treaty’s most burden- tration’s proposals retained the overall “par- some provisions, the State Department enthu- allel system” (the Enterprise alongside pri- siastically promoted the agreement.9 On July vate miners). In other words, the Reagan 27, 1994, before the UN General Assembly, U.S. amendments would have only applied ban- Ambassador Madeleine Albright praised the dages to an underlying system that was LOST for providing “for the application of free flawed from its inception.

5 The same thing can be said of the 1994 half of the ISA members were behind on their amendments. The Clinton administration dues; as of mid-May 2003, 49 were “in arrears” succeeded in turning a disastrous accord into for more than two years, placing their voting a merely bad one, but the treaty has not been privileges at risk.23 The LOST revisions restrict “fixed.” In places the negotiators substituted some of the ISA’s discretion but still submerge ambiguity for clearly negative provisions. seabed mining in the bizarre political dynamics The result is an improvement—and a dramat- of international organizations. The Assembly ic testament to the distance that market chooses the council. The council chooses the ideas have traveled since the LOST was Legal and Technical Commission, which estab- opened for signature in 1982. Nevertheless, lishes rules governing mining. the original collectivist framework remains. A prospective miner would have to fulfill Even the State Department acknowledged those requirements now being drafted at the that the new “agreement retains the institu- ISA in Jamaica and win commission approval tional outlines of Part XI.”18 for its particular work plan, which would then The revised treaty, now in effect, still cre- go to the council for a final decision. ates a Rube Goldberg system—with the ISA, Depending on the ISA rules ultimately adopt- the Enterprise, the council, the Assembly, ed, a company might be denied permission to The ISA is likely and more—that is likely to become yet anoth- mine on the basis of anti-monopoly and anti- to end up as er multilateral boondoggle.19 The LOST density provisions that would apply dispro- bloated and retains revenue sharing, international royal- portionately to American (and Western) min- ties, a veto for land-based minerals producers ing firms. Assuming a company surmounted politicized as the in the council, and the like. The publicly run that hurdle, it would, after paying potentially UN, especially if Enterprise is an international version of the substantial survey costs, have to “relinquish ubiquitous government enterprises known some of” its “exploration areas” to the the United States 24 as parastatals that have failed so miserably in Enterprise. The miner would have to specify joins and begins almost every debt-ridden Third World its maximum expected production, limiting funding the nation. The financial redistribution clauses potential revenue, and, as noted below, might remain a special-interest sop to poor states. have to share its proprietary technology. system. Facing the usual incentives afflicting any Moreover, the company might have to pay organization that separates those who fund the ISA for the privilege of mining. ISA fees it from those who dominate it, the ISA is like- under the revised treaty have been lowered, ly to end up as bloated and politicized as the but companies would continue to owe a UN, especially if the United States joins and $250,000 application fee and some as-yet- begins funding the system. undetermined level of royalties and profit Today, with a minerals market that discour- sharing. The “system of payments,” intones ages development of seabed mining, the ISA the compromise text, shall be “fair both to the sometimes emphasizes the trivial. It generates contractor and to the Authority,” as if that lots of reports and paper. Protecting “the has any practical meaning. Fees “shall be emblem, the official seal and the name” of the within the range of those prevailing in respect ISA, as well as “abbreviations of that name of land-based mining of the same or similar through the use of its initial letters,” has minerals,” even though seabed production is become one of the ISA’s missions.20 Among the more expensive, riskier, and occurs in territo- other crises the ISA has confronted: in April ry beyond any nation’s jurisdiction.25 The 2002 the Jamaican government turned off the revised LOST establishes a new “economic ISA’s air conditioning, necessitating “urgent assistance fund” to aid land-based minerals consultations with the Ministry of Foreign producers.26 Surplus funds would still be dis- Affairs and Foreign Trade.”21 One year later tributed “taking into particular consideration Jamaica used the same tactic in the ongoing the interests and needs of the developing battle over ISA payments for its facility.22 Nearly States and peoples who have not attained full

6 independence or other self-governing status” treaty, however, and took its seat in the coun- (for example, the Palestinian Authority), a cil, a majority of members voting no in any provision unchanged by the 1994 agree- one of the four chambers could block action. ment.27 Theoretically, the United States could On matters of serious interest, the United block payments it opposed—at least as long as States probably could win the necessary votes it was a member of the Finance Committee— to form a majority in its chamber, but not nec- but over time U.S. ISA representatives would essarily. The career foreign service officers like- feel enormous pressure from their peers to be ly to represent most nations in the ISA would “flexible” and “reasonable.” Such pressure is not want to be forever known as obstruction- less likely to be resisted by a U.S. administra- ists. Moreover, this purely negative veto power tion that supports the ISA, especially since the does not guarantee that the ISA would act stakes seem less important than those even at when required, and could be used by other the UN. countries to delay or impede the approval of In fact, economic redistribution has been mining applications, for instance. an important objective for the ISA during its Land-based mineral producers are generally short life. For example, a proposal was made opposed to the very idea of seabed mining. Yet recently for an African Institute of the Oceans, they, as well as the “developing States Parties, as if that were the highest priority for coun- representing special interests,” such as “geo- tries suffering from civil war, economic col- graphically disadvantaged” nations, each have lapse, and social chaos. Voluntary trust funds their own chamber and, thus, a de facto veto have been established to aid developing coun- over the ISA’s operations.30 Thus, the voting tries, though few individuals or nations have power of such groups essentially matches that rushed forward to contribute, and, in the end, of America. Moreover, the qualification stan- the ISA filled the fund coffers itself.28 dards for miners are to be established by “con- The International Tribunal for the Law of sensus,” essentially unanimity, which could the Sea is supposed to offer dispassionate give land-based producers as much influence adjudication of disputes. Yet membership is as the United States. The possession of a veto decided by quota: each “geographical group” provides them with an opportunity to extract is to have at least three representatives.29 That potentially expensive concessions—new limits is a modest improvement over the original on production, for instance, or increased redis- scheme: five members each for Africa and tributionist payments under the treaty—to let Asia, four each for the “Western European the ISA function. Unfortunately, once the and Others Group” and Latin America, and Authority asserts jurisdiction over seabed min- three for Eastern Europe. ing, potential producers would be hurt by a The voting system has been improved, but deadlock. the changes are inadequate. According to the Indeed, production controls, one of the revised treaty, the United States would be most controversial provisions in the original guaranteed a seat on the council, though still text, are preserved in the new agreement. The not a veto. The 36-member council is divided revision does excise most of LOST Article Production into four chambers of varying size, with mem- 151 and related provisions, which set convo- controls, one bers chosen from minerals consumers, seabed luted regulatory restrictions on seabed pro- investors, minerals producers, developing duction. However, it leaves intact Article 150, of the most nations, and others, respectively. The United which, among other things, states that the controversial States could be elected in any one of the first ISA is to ensure “the protection of developing provisions in the three chambers but is promised a seat in the countries from adverse effects on their first one (for minerals producers). Since economies or on their export earnings result- original text, are Washington has not ratified the treaty, the ing from a reduction in the price of an affect- preserved in the United States is currently not a member of the ed mineral, or in the volume of exports of council. If the United States did ratify the that mineral.”31 That wording would seem to new agreement.

7 The technology authorize the ISA to impose production lim- concern was the fact that “general guidelines transfer its. The United States might have to rely on such as necessity to promote cost-effectiveness its ability to round up votes to block such a cannot be seriously regarded as a reliable dis- provisions proposal in the council in perpetuity. incentive [to spending].” Before the treaty had constitute one of Funding remains a problem as well. The even gone into force Ambassador Ostrovsky United States, naturally, would be expected to pointed to “a trend to establish high-paying the most odious 37 provide the largest share of the ISA’s budget: positions which are not yet required.” redistributionist 25 percent to start. How much that would be clauses left over is impossible to predict; the budget is to be developed through “consensus” by the Technology Transfer from the Finance Committee, on which the United original text. States is temporarily guaranteed a seat (“until The technology transfer provisions consti- the Authority has sufficient funds other than tute one of the most odious redistributionist assessed contributions to meet its administra- clauses left over from the original text. The tive expenses”).32 After the Finance Committee mandatory transfer requirement has been vote, the budget must be approved by the replaced by a duty of sponsoring states to facil- Assembly and the council. Years ago the itate the acquisition of mining technology “if United Nations estimated that the ISA would the Enterprise or developing States are unable cost between $41 million and $53 million to obtain” equipment commercially.38 Yet the annually, on top of initial office construction Enterprise and developing nations would find costs of between $104 million and $225 mil- themselves unable to purchase machinery lion.33 The Clinton administration contended only if they were unwilling to pay the market that the revised agreement provided for price or preserve trade secrets, or if a govern- “reducing the size and costs of the regime’s ment restricted the sale of the technology institutions.”34 How? By adopting a paragraph because it had important dual-use capabilities. pledging that “all organs and subsidiary bod- The new clause might be interpreted to mean ies to be established under the Convention that industrialized states and private miners, and this Agreement shall be cost-effective.”35 whose “cooperation” is to be “ensured” by Similarly, states the amended accord, the roy- their respective governments,39 are therefore alty “system should not be complicated and responsible for mandating and subsidizing should not impose major administrative costs the Enterprise’s acquisition of technology. on the Authority or on a contractor.”36 Presumably the United States and its allies These sentiments might be genuine. So far could block such a proposal in the council, the ISA has been spending only about $5 mil- but, again, it is hard to predict the future leg- lion annually. But then, the world’s wealthiest islative dynamics and potential logrolling in nation is not yet a member. Moreover, the an obscure UN body in upcoming years. revised agreement has changed none of the Moreover, the amended agreement leaves underlying institutional incentives that bias intact a separate, open-ended mandate for virtually every international organization, coerced collaboration. “The Authority,” most obviously the UN itself, toward extrava- states Article 144, “shall take measures” gance. In fact, concern over bloated budgets was a (b) to promote and encourage the major factor in Moscow’s initial decision in transfer to developing States of such 1994 not to endorse the treaty. (Russia has technology and scientific knowledge since ratified the LOST.) Russian ambassador so that all States Parties benefit there- to the UN Yakov Ostrovsky explained to the from. . . . General Assembly that though the revisions 2. To this end the Authority and [mem- were “a step forward,” he doubted the new ber nations] shall co-operate in pro- agreement would limit costs. Of particular moting the transfer of technology and

8 scientific knowledge. . . . In particular the UN’s mere assertion that the ocean they shall initiate and promote: resources were the “common heritage of (a) programmes for the transfer of mankind” had abrogated any right to mine technology to the Enterprise and to the seabed without the UN’s approval. developing States . . . under fair and Richardson warned that “if any mining reasonable terms and conditions; defied international law, its output would be (b) measures directed towards the subject to confiscation as contraband.”44 advancement of the technology of the Ambassador Richardson did not explain who Enterprise and the domestic technolo- he believed would do the seizing—a UN navy? gy of developing States, particularly by More important, until Washington ratifies providing opportunities to personnel the LOST, U.S. citizens are at liberty to mine from the Enterprise and from develop- the seabed.45 Americans have incurred no ing States for training.40 treaty obligations—to fund the ISA, subsidize developing states, or transfer technology, for At best this suggests that Western firms example. That makes it all the more impor- would be expected to help equip and train tant that the United States reject the accord. If their competitors.41 At worst it could end up the United States ever joins the ISA, a future authorizing some sort of mandatory sys- renunciation of the LOST might not be con- Even if no tem—one close to that originally intended by sidered enough to reestablish Americans’ tra- minerals are the LOST’s framers. Ambiguous and obscure ditional freedoms on the high seas. lifted from the grants of power in the service of a highly Admittedly, objections based on seabed politicized organization are likely to prove mining might seem to be of little importance ocean’s floor, the harmful to U.S. interests. today since the promise of recovering ocean LOST remains At issue is not only technology useful for resources is far less bright than it was when unacceptable seabed mining. Dual-use technologies with mil- UNCLOS convened. But operations might itary applications, for instance, might also fall still become economically feasible in coming because of its under ISA requirements. Peter Leitner, a years, especially as technological innovation coercive, Department of Defense adviser, points out that makes the mining process less expensive. those technologies might include “underwater Principle is also important. Even if no miner- collectivist mapping and bathymetry systems, reflection als are ever lifted commercially from the philosophical and refraction seismology, magnetic detection ocean’s floor, the LOST remains unacceptable underpinnings. technology, optical imaging, remotely operated because of its coercive, collectivist philosophi- vehicles, submersible vehicles, deep salvage cal underpinnings, most notably the declara- technology, active and passive military acoustic tion that all seabed resources are mankind’s systems, classified bathymetric and geophysical “common heritage” under the control of a data, and undersea robots and manipulators.”42 majority of the world’s nation states. Acquisition of those and other technologies could substantially enhance the undersea mili- tary activities of potential rivals, most notably The New International China, which already has purchased some min- Economic Order ing-capable technologies from U.S. concerns. The justification for granting U.S. government UNCLOS III was held in a different era, at approval for past transfers to China, explains a time when communism reigned through- Leitner, was Beijing’s status as a miner under out much of the world, Third World states the LOST.43 were proclaiming that socialism offered the The treaty has become a solution in search true path to progress and prosperity, and of a problem. True, Elliot Richardson, who multilateral organizations were promoting led the American delegation to the UN dur- the New International Economic Order, ing the Carter administration, claimed that which was to engineer massive wealth redis-

9 tribution from the industrialized to the may purport to promote international justice, underdeveloped states. Indeed, much of the fairness, and cooperation, but, in fact, it LOST, particularly the provisions regarding advances none of those things. Rather, it rais- seabed mining, was dictated by the so-called es to the status of international law self-indul- Group of 77, the developing states’ lobby. gent claims of ownership to be secured Those nations saw the LOST as the leading through an oligarchy of international bureau- edge of a campaign that included treaties cov- crats, diplomats, and lawyers. And the treaty’s ering Antarctica and outer space, expanded specific provisions still mandate global redis- bilateral and multilateral aid programs, and tribution of resources, create a monopolistic activism by a veritable alphabet soup of UN public mining entity, restrict competition, and agencies—CTC, ILO, UNCTAD, WHO, and require the transfer of technology. Those prin- WIPO.46 Ambassador Pardo, the Maltese offi- ciples, even in the attenuated form of the cial who was once a leading proponent of the revised treaty, reflect the sort of statist LOST, then argued that American acceptance panaceas that were discredited by the histori- of the treaty “however qualified, reluctant, or cal wave that swept away Soviet-style commu- defective, would validate” international politi- nism. cal control of private economic activities, or what he euphemistically termed “the global democratic approach to decision making.”47 Countervailing Benefits? Luckily, economic reality has since hit many poorer nations. Even formerly klepto- Throughout its development some ob- cratic one-party states such as Mexico, author- servers acknowledged the treaty’s failings but itarian collectivist regimes such as Tanzania, contended that it had enough positive bene- and formally communist states such as fits to warrant signing. Typical is the argu- Vietnam have moved in varying degrees ment by three members of the Center for Law toward market economies. Before Ronald and Social Policy: “Although the draft is not Reagan left office, the NIEO had disappeared perfect, we believe that the benefits to U.S. from international discourse, along with any interests from the treaty far outweigh the dis- mention of the LOST. advantages.”48 Although American ratification of the The gains in other areas are limited. Many LOST would not be enough to resurrect the of the nonseabed provisions are marginally NIEO, it would subject the United States to beneficial to U.S. interests, and a number are the treaty’s restrictive regulatory regime and somewhat harmful. The treaty’s authoriza- enshrine in international law some very ugly tion of 200-mile exclusive economic zones precedents. One is that the nation–states (not (EEZs) merely reflects what has become cus- peoples) of the world collectively own all the tomary international law. Sections governing unclaimed wealth of this earth. Granting fishing and maritime research also make few American ownership and control to petty autocracies changes to current law. In contrast, the terri- ratification of the that have no relationship to the resources torial boundary–setting process strips some LOST would and no ability to contribute anything to their nonseabed resources away from the United development makes neither moral nor prac- States; the pollution provisions restrict subject the tical sense. Much better on both counts is the America’s ability to control some emission United States to simple Lockean notion that mixing one’s sources; and the U.S. government might labor with resources—by developing complex eventually have to share oil revenues with the the treaty’s machinery capable of scouring the ocean ISA from development of the outer continen- restrictive floor, for instance—grants one a property tal shelf beyond 200 miles. All of these regulatory interest in them. change existing practices. The Lockean standard would better suit The navigation provisions are perceived by regime. the interests of developing peoples. The LOST supporters as being of far greater importance

10 than hypothetical concerns about offshore that codifies those freedoms,” testified Adm. To protect mining and drilling rights. For instance, Rear Michael G. Mullen, then vice chief of naval American Adm. William Schachte Jr., a Pentagon official operations for the Joint Chiefs of Staff.53 who backed the LOST during the Reagan years, That’s true, but it doesn’t go very far. The navigation rights, argued that the document was vital to guaran- now-retired Admiral Schacte acknowledged in the U.S. Navy tee American naval rights. Washington’s refusal Senate testimony: “The Convention alone is must regularly to sign the LOST left critics predicting chaos not enough, even [with the United States] as a and combat on the high seas two decades ago; party. Our operational forces must continue conduct military yet we have witnessed not one such incident as to exercise our rights under the Convention.”54 operations a result of the failure to implement the LOST. That is, to protect American navigation rights Nor is the treaty unambiguously favorable from foreign encroachments, the U.S. Navy regardless of to transit rights. The document introduces must regularly conduct military operations on whether or not some new limitations on navigation involv- the basis of the international transit freedoms the United States ing the EEZs, territorial seas, and water sur- claimed by Washington, regardless of whether rounding archipelagic states. Even seemingly or not the United States ratifies the LOST. ratifies the LOST. innocent restrictions might have a negative Meanwhile, the LOST is unlikely to influence impact; Alfred Rubin of Tufts University wor- countries that have either the incentive or the ried that the ban on “research or survey activ- ability to interfere with U.S. shipping. In prac- ities” could limit U.S. naval transit rights.49 tice, few do: nations usually have far more to At other times the LOST’s language is gain economically from allowing unrestricted ambiguous—regarding transit rights for sub- passage. merged submarines, for instance—which ulti- However, when countries perceive their mately limits the value of the treaty guarantee. vital national interests to be at stake—Great Ambassador Pardo complained that the treaty Britain in World War I and Iran during its “is often studiously unclear, and predictability war with Iraq in the 1980s, for instance—they suffers.”50 Louisiana State University law pro- rarely allow juridical niceties to stop them fessor Gary Knight argued that “the difficulty from interdicting or destroying international of establishing our legal right to EEZ naviga- commerce. In a crisis, most maritime nations tion [through other nations’ exclusive eco- are ready to sacrifice abstract legal norms in nomic zones] and submerged straits passage pursuit of important policy goals. [for submarines] would be no more difficult Indeed, LOST membership has not pre- under an existing customary international law vented , China, India, Malaysia, North argument than under the convoluted text of Korea, Pakistan, and others from making the proposed UNCLOS.”51 In short, there is ocean claims deemed by others to be exces- only a modest theoretical advantage for which sive—and, thus, illegitimate—under the treaty. to trade away the mining provisions. In testimony last October, Admiral Mullen Even if the LOST offered a definite and warned that the benefits he believed were positive interpretation of navigation provi- derived from treaty ratification did not “sug- sions, the legal protections for free transit gest that countries’ attempts to restrict naviga- would provide little practical gain. Benjamin tion will cease once the United States becomes and Daniel Friedman contend: “By signing the a party to the Law of the Sea Convention.”55 Convention, the United States gives added As for military transit, the United States weight and stability to customary rights, and should concentrate on maintaining good pushes recalcitrant states to respect naviga- relations with the handful of countries that tional freedoms.”52 Administration represen- sit astride important sea-lanes. At a time tatives make the same argument: “The naviga- when Washington is combating lawless ter- tion and overflight freedoms we require rorism, it should be evident that the only sure through customary international law are bet- guarantee of free passage is the power of the ter served by being a party to the Convention U.S. Navy.

11 Of course, even with friendly nations, Moreover, the administration’s positive Washington would prefer not “to have to use assessment of the treaty depends on Washing- muscle to exercise our rights,” observed Carter- ton’s ability to insulate military operations era LOST negotiator Elliot Richardson.56 from the LOST. In his October 2003 testimony, Moreover, Mark T. Esper, deputy assistant sec- the State Department’s William H. Taft IV retary of defense for negotiations policy in the noted the importance of conditioning accep- Bush administration, told the Senate that sea- tance “upon the understanding that each Party lanes and air lanes should “remain open as a has the exclusive right to determine which of its matter of international legal right—not contin- activities are ‘military activities’ and that such gent upon approval by coastal and island determination is not subject to review”—in nations along the route or in the area of opera- other words, which activities are or are not cov- tions.”57 But LOST or no LOST, those rights ered by the LOST.59 Whether other members will remain contingent on the ability and will- will respect that claim is not certain. Admiral ingness of other countries to hinder free tran- Mullen acknowledged the possibility that a sit and of the United States to overcome such LOST tribunal could assert jurisdiction over hindrances. American military operations, resulting in a rul- Consider the luckless USS Pueblo. Inter- ing that adversely impacted “operational plan- The impact of national law did not prevent North Korea from ning and activities, and our security.”60 the LOST on illegally seizing the intelligence ship; had there Indeed, the impact of the LOST on Presi- President Bush’s been a LOST in 1968, it would have offered the dent Bush’s Proliferation Security Initiative Pueblo no additional protection. America was (PSI), aimed at hindering international ship- Proliferation similarly unaided by international law in its con- ments of weapons of mass destruction (WMD) Security Initiative frontation with China over the U.S. EP-3 sur- materials, is uncertain. Treaty advocates con- is uncertain. veillance plane operating in international air- tend that the LOST would provide an addi- space in 2001. tional forum through which to advance the Schachte contends that “if you look at the PSI. Assistant Secretary of State John F. Turner Persian Gulf situation, for example, we didn’t testified before the Senate that “joining the have problems with Iran or Oman in using the Convention would strengthen PSI efforts.”61 Strait of Hormuz, because they recognized that At the very least, “it imposes no new restric- the language of the treaty was clear.”58 Yet Iran, tions,” write Daniel and Benjamin Friedman.62 which bombed Kuwaiti oil tankers during its That isn’t so clear, however. Adherence to war with Iraq, is unlikely to be deterred by an the LOST might constrain Washington’s abil- international treaty, however unambiguous its ity to intercept weapons shipments that are provisions. If Iran, or any other maritime state, problematic, but legal, under existing interna- believed it to be in its vital interest to prevent tional law, and that remain so under the treaty. the passage of U.S. ships, then its signature on After all, any anti-proliferation policy treats the LOST would not likely prevent it from act- nations differently on the basis of the subjec- ing: rather, the country would be primarily tive assessment of the stability and intention concerned about America’s willingness and of a particular government. The LOST makes ability to force passage. And in a world from no such distinctions. At best, the treaty is which the Soviet Union has disappeared, the ambiguous regarding the seizure of WMD Russian navy is rusting in port, China has yet shipments. Controversy is inevitable; China to develop a blue-water navy, and Third World and India already have insisted that the PSI is conflicts are no longer viewed as threatening barred by the treaty. Ratification of the LOST the United States, Washington is rarely going might have the effect of adopting ambiguity to have to fight its way through contested as law, which would not strengthen Washing- international waterways. Countries will be ton’s position. inclined to let the ships pass rather than face Convention advocates further contend the wrath of the U.S. Navy. that even if the LOST is flawed, only partici-

12 pation in the treaty regime can prevent creation of a “particularly sensitive sea area” off future damaging interpretations, amend- of Europe, for instance—have involved alleged ments, and tribunal decisions. Bernard misinterpretations of the treaty, not America’s Oxman, a University of Miami Law School lack of membership.67 And foreign shippers professor who also serves as a judge ad hoc have attempted to use the LOST to escape on the International Tribunal for the Law of application of U.S. environmental controls.68 the Sea, contends that “what we gain by Joining the treaty would provide no panacea. becoming party is increased influence over” Finally, the LOST may encourage the UN to the interpretation of the convention’s rules.63 venture into unexplored territory. The UN’s Senator Lugar worries that failing to ratify Division for Ocean Affairs and the Law of the the treaty means the United States could Sea boldly announced that the LOST “is not . . . “forfeit our seat at the table of institutions a static instrument, but rather a dynamic and that will make decisions about the use of the evolving body of law that must be vigorously oceans.”64 David Sandalow of the Brookings safeguarded and its implementation aggressive- Institution warns that if the United States ly advanced.”69 If international jurists exhibit the stays out of the LOST, it risks losing some of same creativity as shown by some judges domes- its existing navigation freedoms through tically, the LOST might prove to be dangerously “backsliding by nations that have put aside dynamic. excessive maritime claims from years past.”65 In 2001 Douglas Stevenson, representing However, America’s friends and allies, in the Seamen’s Church Institute, an advocacy both Asia and Europe, have an incentive, with group for mariners, complained about “trends or without the LOST, to protect navigational that erode traditional seafarers’ rights,” such freedom. So long as Washington maintains as that to medical care, as well as to protection good relations with them—admittedly a more from abandonment by insolvent and irre- difficult undertaking because of strains of the sponsible ship owners. Stevenson explained, war in Iraq—it should be able to defend U.S. “When mariners’ health, safety or welfare is in interests indirectly through surrogates. If the jeopardy, we look to the United Nations nations that benefit from navigational free- Convention on the Law of the Sea to protect dom are unwilling to aid the United States them.”70 There are obviously real and tragic while Washington is outside the LOST, they abuses of seamen, but what the “international are unlikely to prove any more steadfast with community” should do as part of the LOST Washington inside it. Assistant Secretary about such issues is not obvious. Washington If the nations Turner admitted as much when he told the might find itself facing unexpected obliga- Senate Foreign Relations Committee in tions if it signs on. that benefit from October 2003 that the United States had “had navigational considerable success” in asserting “its oceans 66 freedom are interests as a non-party to the Convention.” Conclusion Critics of the U.S. refusal to sign in 1982 unwilling to predicted ocean chaos, but as noted earlier, The LOST attracts some adherents because aid the United not once has an American ship been denied it is so big and comprehensive. Writes George passage. No country has had either the incen- Galdorisi, the LOST States while tive or the ability to interfere with U.S. ship- Washington is ping, and, if one or more had, the LOST would has become more than just another outside the have been of little help. In 1998 treaty sup- treaty. As the result of the largest single porters agitated for immediate ratification international negotiating project ever LOST, they are because several special exemptions for the undertaken, it founded a new era on, unlikely to do so United States were set to expire. Washington under and over the world’s seas and did not ratify and no one seemed to notice. represented to the treaty’s 157 signato- with Washington Ironically, problems cited by U.S. shippers— ries, a commitment to the rule of law inside it.

13 America’s and a basis for the conduct of affairs article.asp?ARTICLE_ID=42528. interests are best among nations over a majority of the 4. Quoted in Strom. globe—a rule of law that the United served if the States must promote and sustain if it is 5. Arvid Pardo, “An Opportunity Lost,” in Law of Senate rejects the to succeed in endeavors such as the the Sea: U.S. Policy Dilemma, ed. Bernard H. Oxman 71 et al. (San Francisco: ICS Press, 1983), p. 23. LOST. global war on terrorism. 6. American Mining Congress, “Undersea Mineral If the stakes are that high, it is even more Resources,” statement (xerox), September 27, 1981, important that the treaty be a good one. in author’s possession. Someday seabed resources might be worth 7. Author’s conversations with American diplo- recovering, giving life to the provisions of Part mats in 1991 and 1992. XI of the treaty, which govern seabed mining. In the meantime, there is no reason for the 8. See, e.g., United Nations Division for Ocean Affairs and the Law of the Sea, “Agreement Relating to the United States to lock itself into a burdensome Implementation of Part XI of the United Nations and convoluted regulatory regime that sets Convention on the Law of the Sea of 10 December undesirable precedents. 1982: Overview,” www.un.org/Depts/los/convention Unfortunately, notwithstanding the 1994 _agreements/convention_overview_part_xi.htm. revisions, the LOST remains captive to its 9. See United Nations General Assembly, “Agree- collectivist and redistributionist origins. It is ment Relating to the Implementation of Part XI of a bad agreement, one that cannot be fixed the United Nations Convention on the Law of the without abandoning its philosophical pre- Sea of 10 December 1982,” August 17, 1994, A/RES/48/263. supposition that the seabed is the common heritage of the world’s politicians and their 10. Madeleine Albright, Statement to the 48th agents, the International Seabed Authority Session of the United Nations General Assembly, and the Enterprise. July 27, 1994. But the issue of whether to ratify the LOST 11. The LOST and 1994 agreements were to be treat- involves more than abstract philosophical ed as a package. However, as of August 31, 2005, 149 principles. Provisions such as those covering nations had ratified the convention but only 122 had technology transfers could put America’s ratified the 1994 agreement. See United Nations Division for Ocean Affairs and the Law of the Sea, national security at risk. Improvements in “Status of the United Nations Convention on the Law transit rights and other areas would be mod- of the Sea, of the Agreement Relating to the est, at best. America’s interests are best served Implementation of Part XI of the Convention and of if the Senate rejects the LOST. the Agreement for the Implementation of the Provisions of the Convention Relating to the Conser- vation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks,” http://www. Notes un.org/Depts/los/convention_agreements/conven tion_agreements.htm, accessed September 15, 2005. 1. Benjamin Friedman and Daniel Friedman, Whether that divergence in ratifications will pose any “How the Law of the Sea Convention Benefits the problem in implementing the reform package is United States,” Bipartisan Security Group, unclear. It has been argued that “the Agreement November 20, 2004, p. 1. unambiguously changes Part XI in a legally binding manner.” John F. Turner, assistant secretary of state 2. Quoted in Thomas Kilgannon, “Will Law of for oceans and international environmental and sci- the Sea Treaty Sink or Swim?” Washington Times, entific affairs, Testimony before the Senate Environ- February 11, 2005, p. A19. ment and Public Works Committee, Hearing on Accession to the 1982 Law of the Sea Convention and 3. Friedman and Friedman, p. 1. A Lugar staffer said Ratification of the 1994 Agreement Amending Part the senator did not push the treaty last session so as XI of the Law of the Sea Convention, March 23, 2004, not to “rile the activists,” but didn’t admit to being www.state.gov/g/oes/rls/rm/2004/30723.htm. “cowed.” As quoted in Ron Strom, “Sovereignty- Sapping U.N. Accord Gets New Life,” WorldNet Daily, 12. Quoted in Steven Greenhouse, “U.S., Having January 25 2005, www.worldnetdaily.com/news/ Won Changes, Is Set to Sign Law of the Sea,” New

14 York Times, July 1, 1994, p. A1. the Eighth Session,” 2002, p. 30.

13. William H. Taft IV, Testimony before the Senate 21. Ibid., p. 12. Foreign Relations Committee, Hearing on Accession to the 1982 Law of the Sea Convention 22. Office of Legal Affairs, International Seabed and Ratification of the 1994 Agreement Amending Authority, “Selected Decisions and Documents of Part XI of the Law of the Sea Convention, October the Ninth Session,” 2003, pp. 2–3. 21, 2003, p. 8, http://www.state.gov/g/oes/rls/rm/ 2003/25573.htm. 23. Ibid., p. 4.

14. Turner, Testimony before the Senate Environ- 24. Ibid., p. 24. ment and Public Works Committee. 25. “Law of the Sea: Consultations of the Secretary- 15. George Galdorisi, “Ratify the Law of the Sea General,” sec. 8, para. 1(a)-(b), pp. 28–29. Treaty,” San Diego Union-Tribune, December 14, 2004, p. B7. “The agreement addresses in full all concerns 26. Ibid., sec. 7, para. 1(a), p. 28. identified by President Reagan a decade ago.” See also David B. Sandalow, “Law of the Sea Convention: 27. United Nations, “The Law of the Sea: United Should the U.S. Join?” Brookings Institution Policy Nations Convention on the Law of the Sea,” 1983, Brief no. 137, August 2004, p. 7. Article 160, 2(f)(i), p. 83, http://www.un.org/Depts /los/convention_agreements/texts/unclos/unc 16. Friedman and Friedman, p. 2. Indeed, this argu- los_e.pdf. Hereinafter cited as Law of the Sea ment is made by almost every treaty backer. See, e.g., Treaty. John Norton Moore, Testimony before the Senate Foreign Relations Committee, Hearing on 28. International Seabed Authority, “Seabed Council Accession to the United Nations Convention on the Ends Session after Agreeing to Tap Nonbudget Law of the Sea and Ratification of the 1994 Funds for Travel of Some Members of Its Expert Agreement Regarding Part XI of the Convention, Bodies,” news release, SB/9/10, August 5, 2003, p. 1. October 14, 2003, p. 5, http://www.foreign.senate. gov/testimony/2003/MooreTestimony031014.pdf; 29. International Tribunal for the Law of the Sea, and Ted Stevens, Statement on the UN Conven- “Statute of the International Tribunal for the Law tion of the Law of the Sea to the Senate Foreign of the Sea,” Article 3, http://www.itlos.org/docu Relations Committee, Hearing on Accession to the ments_publications/documents/statute_en.pdf. United Nations Convention on the Law of the Sea and Ratification of the 1994 Agreement Regarding 30. “Law of the Sea: Consultations of the Secretary- Part XI of the Convention, October 14, 2003, p. 3, General,” sec. 3, para. 15(d), p. 25. One chamber is http://www.foreign.senate.gov/testimony/2003/St solely for land-based producers. The “developing evensTestimony031014.pdf. States Parties,” in contrast, will share a chamber with other members, mainly other Third World coun- 17. “The U.S. Proposals for Amendments to the tries, “elected according to the principle of ensuring Draft Convention on the Law of the Sea,” U.S. del- an equitable geographical distribution of seats in the egation to the Third United Nations Conference Council.” Ibid., sec. 3, para. 15(d)-(e), p. 25. on the Law of the Sea working paper, undated, in author’s possession. 31. Law of the Sea Treaty, Article 150 (h), p. 75.

18. State Department, “Oceans Policy and the 32. “Law of the Sea: Consultations of the Law of the Sea Convention,” undated memoran- Secretary-General,” sec. 9, para. 3, pp. 29–30. dum, p. 6, in author’s possession. 33. United Nations Office at Geneva Information 19. The changes to the agreement are described in Service, “Law of the Sea Conference to Resume United Nations General Assembly, “Law of the Tenth Session at Geneva Beginning 3 August,” Sea: Consultations of the Secretary-General on U.N. Doc. SEA/140 (1981), pp. 6–7. Outstanding Issues Relating to the Deep Seabed Mining Provisions of the United Nations Con- 34. David A. Colson, “UN Convention on the Law vention on the Law of the Sea: Report of the of the Sea,” U.S. Department of State Dispatch 5, no. Secretary General,” A/48/950, June 9, 1994, http: 22 (March 30, 1994): 361. //daccessdds.un.org/doc/UNDOC/GEN/N94/2 44/82/PDF/N9424482.pdf?OpenElement. 35. “Law of the Sea: Consultations of the Secretary-General,” sec. 1, para. 2, p. 16. 20. Office of Legal Affairs, International Seabed Authority, “Selected Decisions and Documents of 36. Ibid., sec. 8, para. 1(c), p. 29.

15 37. Yakov Ostrovsky, Statement before the 48th 50. Pardo, p. 17. Session of the United Nations General Assembly, July 28, 1994, pp. 1–3. 51. Quoted in Leitner, “A Bad Treaty Returns,” p. 144.

38. “Law of the Sea: Consultations of the 52. Friedman and Friedman, p. 3. Secretary-General,” sec. 5, para. 1(b), p. 26. 53. Michael G. Mullen, Testimony before the Senate 39. Ibid. Committee on Foreign Relations, Hearing on Accession to the 1982 Law of the Sea Convention 40. Law of the Sea Treaty, Article 144, paras. 1 (b) and Ratification of the 1994 Agreement Amending and 2(a), (b), pp. 72–73. Part XI of the Law of the Sea Convention, October 21, 2003, p. 4, http://www.foreign.senate.gov/testi 41. “This provision is obviously intended to assist mony/2003/MullenTestimony031021.pdf. See also poorer states. However, rusting Western machin- Sandalow, pp. 3–4. ery and decaying Western-funded projects in many Third World countries, in the wake of mas- 54. William L. Schacte Jr., Testimony before the sive international aid programs, are a monument Senate Foreign Relations Committee, Hearing on to the fallacy of believing that technology transfer Accession to the 1982 Law of the Sea Convention is simply a matter of access, rather than of cultur- and Ratification of the 1994 Agreement Amending al receptivity as well.” Thomas Sowell, Race and Part XI of the Law of the Sea Convention, October Culture: A World View (New York: Basic Books, 14, 2003, p. 2. 1994), p. 8. 55. Mullen, Testimony before the Senate 42. Peter M. Leitner, “A Bad Treaty Returns: The Committee on Foreign Relations, p. 8. Case of the Law of the Sea Treaty,” World Affairs 160, no. 3 (Winter 1998): 144. 56. Quoted in David E. Pitt, “U.S. Seeks to ‘Fix’ Mining Provisions of Sea Treaty,” New York Times, 43. Ibid.; and Peter Leitner, Testimony before the August 28, 1993, p. A3. Senate Committee on Environment and Public Works, Hearing on Accession to the 1982 Law of 57. Mark T. Esper, Testimony before the Senate the Sea Convention and Ratification of the 1994 Committee on Foreign Relations on the U.N. Agreement Amending Part XI of the Law of the Convention on the Law of the Sea, October 21, 2003, Sea Convention, March 23, 2004, http://epw.sen p. 4, http://www.foreign.senate.gov/testimony/2003 ate.gov/hearing_statements.cfm?id=219545. /EsperTestimony031021.pdf.

44. Elliot Richardson, “Treasure Beneath the Sea,” 58. Quoted in Pitt. New York Times, July 30, 1994, p. 19. 59. Taft, pp. 6–7. 45. The issue remains disputed, but the best argu- ment is that customary international law remains 60. Mullen, p. 9. See also Esper, Testimony before unchanged for the powers that have refused to the Senate Foreign Relations Committee, p. 4. accept the LOST. See, e.g., Doug Bandow, “UNC- LOS III: A Flawed Treaty,” San Diego Law Review 61. Turner, Testimony before the Senate Environ- 19, no. 3 (1982): 479. ment and Public Works Committee.

46. For more information on the NIEO, see Doug 62. Friedman and Friedman, p. 3. Bandow, “Totalitarian Global Management: The UN’s War on the Liberal International Economic 63. Bernard H. Oxman, Testimony before the Order,” Cato Institute Policy Analysis no. 61, Senate Foreign Relations Committee, Hearing on October 24, 1985. Accession to the United Nations Convention on the Law of the Sea and Ratification of the 1994 47. Pardo, p. 23. Agreement Regarding Part XI of the Convention, October 14, 2003, p. 4. 48. Letter from Clifton E. Curtis et al., Center for Law and Social Policy, to James L. Malone, assis- 64. Richard Lugar, “Lugar Statement on Law of tant secretary of state for oceans and internation- the Sea Treaty,” Statement at committee mark-up al environmental and scientific affairs, July 30, of a resolution of advice and consent to the UN 1981, in author’s possession. Convention on the Law of the Sea, p. 1, Senate Foreign Relations Committee, February 11, 2004. 49. Alfred Rubin, “Monster from the Deep: Return of UNCLOS,” National Interest (Fall 1994): 64. 65. Sandalow, p. 3.

16 66. John F. Turner, Testimony before the Senate ed, www.un.org/Depts/los/oceans_foundation.htm. Foreign Relations Committee, Hearing on Accession to the 1982 Law of the Sea Convention and 70. Douglas Stevenson, Statement to the Meeting Ratification of the 1994 Agreement Amending Part of the States Parties to the United Nations XI of the Law of the Sea Convention, October 21, Convention on the Law of the Sea, United Nations, 2003, p. 1, http://www.foreign.senate.gov/testimony/ New York City, May 18, 2001, pp. 3, 4, www.sea 2003/TurnerTestimony031021.pdf. menschurch.org/CSR%20Website/UNCLOS2001 pr.htm. 67. Joseph J. Cox, Testimony before the Senate Foreign Relations Committee, Hearing on Accession 71. Galdorisi. Long-time supporter John Norton to the 1982 Law of the Sea Convention and Moore of the University of Virginia School of Law Ratification of the 1994 Agreement Amending Part also spoke of “fostering the rule of law” and sending XI of the Law of the Sea Convention, October 21, “a strong signal of renewed United States presence 2003, p. 3, http://www.foreign.senate.gov/testimony and engagement in the United Nations, multilateral /2003/CoxTestimony031021.pdf. negotiation, and international relations generally.” Moore, Testimony before the Senate Foreign 68. Roger Rufe, Testimony before the Senate Foreign Relations Committee, p. 13. On the 20th anniversary Relations Committee, Hearing on Accession to the of the signing of the LOST, the United Nations 1982 Law of the Sea Convention and Ratification of declared: “The concept of the package pervaded all the 1994 Agreement Amending Part XI of the Law of work on the elaboration of the Convention and was the Sea Convention, October 21, 2003, p. 4, http: not limited to consideration of substance alone. It //www.foreign.senate.gov/testimony/2003/Rufe became the leitmotiv of the Conference and in fact Testimony031021.pdf. permeates the law of the sea as it exists today.” Division for Ocean Affairs and the Law of the Sea, 69. Division for Ocean Affairs and the Law of the Sea, United Nations, December 1982, http://www.un.org Office of Legal Affairs, United Nations, “The Oceans /Depts/los/convention_agreements/convention_20 Are the Very Foundation of Human Life . . . ,” undat- years/Montego%20Bay. htm.

17 OTHER STUDIES IN THE POLICY ANALYSIS SERIES

551. Saving Money and Improving Education: How School Choice Can Help States Reduce Education Costs by David Salisbury (October 4, 2005)

550. The Personal Lockbox: A First Step on the Road to Social Security Reform by Michael Tanner (September 13, 2005)

549. Aging America’s Achilles’ Heel: Medicaid Long-Term Care by Stephen A. Moses (September 1, 2005)

548. Medicaid’s Unseen Costs by Michael F. Cannon (August 18, 2005)

547. Uncompetitive Elections and the American Political System by Patrick Basham and Dennis Polhill (June 30, 2005)

546. Controlling Unconstitutional Class Actions: A Blueprint for Future Lawsuit Reform by Mark Moller (June 30, 2005)

545. Treating Doctors as Drug Dealers: The DEA’s War on Prescription Painkillers by Ronald T. Libby (June 6, 2005)

544. No Child Left Behind: The Dangers of Centralized Education Policy by Lawrence A. Uzzell (May 31, 2005)

543. The Grand Old Spending Party: How Republicans Became Big Spenders by Stephen Slivinski (May 3, 2005)

542. Corruption in the Public Schools: The Market Is the Answer by Neal McCluskey (April 14, 2005)

541. Flying the Unfriendly Skies: Defending against the Threat of Shoulder- Fired Missiles by Chalres V. Peña (April 19, 2005)

540. The Affirmative Action Myth by Marie Gryphon (April 6, 2005)

539. $400 Billion Defense Budget Unnecessary to Fight War on Terrorism by Charles V. Peña (March 28, 2005)

538. Liberating the Roads: Reforming U.S. Highway Policy by Gabriel Roth (March 17, 2005)

537. Fiscal Policy Report Card on America’s Governors: 2004 by Stephen Moore and Stephen Slivinski (March 1, 2005)

536. Options for Tax Reform by Chris Edwards (February 24, 2005)

535. Robin Hood in Reverse: The Case against Economic Development Takings by Ilya Somin (February 22, 2005)

534. Peer-to-Peer Networking and Digital Rights Management: How Market Tools Can Solve Copyright Problems by Michael A. Einhorn and Bill Rosenblatt (February 17, 2005)

533. Who Killed Telecom? Why the Official Story Is Wrong by Lawrence Gasman (February 7, 2005)

532. Health Care in a Free Society: Rebutting the Myths of National Health Insurance by John C. Goodman (January 27, 2005)

531. Making College More Expensive: The Unintended Consequences of Federal Tuition Aid by Gary Wolfram (January 25, 2005)

530. Rethinking Electricity Restructuring by Peter Van Doren and Jerry Taylor (November 30, 2004)

529. Implementing Welfare Reform: A State Report Card by Jenifer Zeigler (October 19, 2004)

528. Fannie Mae, Freddie Mac, and Housing Finance: Why True Privatization Is Good Public Policy by Lawrence J. White (October 7, 2004)

527. Health Care Regulation: A $169 Billion Hidden Tax by Christopher J. Conover (October 4, 2004)

526. Iraq’s Odious Debts by Patricia Adams (September 28, 2004)

525. When Ignorance Isn’t Bliss: How Political Ignorance Threatens Democracy by Ilya Somin (September 22, 2004)

524. Three Myths about Voter Turnout in the United States by John Samples (September 14, 2004)

523. How to Reduce the Cost of Federal Pension Insurance by Richard A. Ippolito (August 24, 2004)

522. Budget Reforms to Solve New York City’s High-Tax Crisis by Raymond J. Keating (August 17, 2004)

521. Drug Reimportation: The Free Market Solution by Roger Pilon (August 4, 2004)

520. Understanding Privacy—And the Real Threats to It by Jim Harper (August 4, 2004)

519. Nuclear Deterrence, Preventive War, and Counterproliferation by Jeffrey Record (July 8, 2004)

518. A Lesson in Waste: Where Does All the Federal Education Money Go? by Neal McCluskey (July 7, 2004)

517. Deficits, Interest Rates, and Taxes: Myths and Realities by Alan Reynolds (June 29, 2004) 516. European Union Defense Policy: An American Perspective by Leslie S. Lebl (June 24, 2004)

515. Downsizing the Federal Government by Chris Edwards (June 2, 2004)

514. Can Tort Reform and Federalism Coexist? by Michael I. Krauss and Robert A. Levy (April 14, 2004)

513. South Africa’s War against Malaria: Lessons for the Developing World by Richard Tren and Roger Bate (March 25, 2004)

512. The Syria Accountability Act: Taking the Wrong Road to Damascus by Claude Salhani (March 18, 2004)

511. Education and Indoctrination in the Muslim World: Is There a Problem? What Can We Do about It? by Andrew Coulson (March 11, 2004)

510. Restoring the U.S. House of Representatives: A Skeptical Look at Current Proposals by Ronald Keith Gaddie (February 17, 2004)

509. Mrs. Clinton Has Entered the Race: The 2004 Democratic Presidential Candidates’ Proposals to Reform Health Insurance by Michael F. Cannon (February 5, 2004)

508. Compulsory Licensing vs. the Three “Golden Oldies”: Property Rights, Contracts, and Markets by Robert P. Merges (January 15, 2004)

507. “Net Neutrality”: Digital Discrimination or Regulatory Gamesmanship in Cyberspace? by Adam D. Thierer (January 12, 2004)

506. Cleaning Up New York States’s Budget Mess by Raymond J. Keating (January 7, 2004)

505. Can Iraq Be Democratic? by Patrick Basham (January 5, 2004)

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