A Sinkable Treaty

Why America doesn't need the Law of the Sea.

Wall Street Journal
Saturday, November 3, 2007 12:01 a.m.

The Senate Foreign Relations Committee voted 17-4 Wednesday to approve the Law of the Sea Treaty, meaning it's now up to 34 Senate Republicans to send this giant octopus of a document back where it belongs. To wit, the bottom of the ocean.

The U.S. last disposed of the United Nations Convention on the Law of the Sea--LOST to its critics--when Ronald Reagan was President. This May, however, the Bush Administration reversed course and declared that the Gipper's objections had been fixed by a 1994 amendment. We've since had a debate on these pages over that point, with former Secretaries of State George Shultz and James Baker in favor, while Ed Meese and William Clark, Reagan's Attorney General and National Security Adviser, remain opposed.

The best arguments for the treaty come from the U.S. Navy, which likes how it creates a legal framework for navigational rights. The oil and gas industry approves of provisions that create an "exclusive economic zone" for the U.S. out to 200 miles. There's also the potential for development (with clear legal title) of resources in the deep seabed, which would be managed by the International Seabed Authority on which the U.S. would be guaranteed a seat. And, in fact, the 1994 amendment did get rid of some of LOST's most obnoxious provisions, such as mandatory technology transfers and other redistributionist nostrums.


Then again, the Navy has been getting along fine by using the "customary law" that has guaranteed freedom of the seas for three centuries. Treaty proponents have taken to arguing that, unless we ratify, Russia will lay claim to oil rights over the Arctic seabed. But Russia's expansive Arctic claims, possibly including the sea floor under the North Pole, are themselves a product of the treaty. We also hear that the U.S. must have its proverbial "seat at the table" in negotiations over such claims. But the nations with a direct geographic Arctic claim ought to be able to cut a deal without giving Cuba or Zimbabwe a seat. America's historic experience with similar multinational bodies (e.g., the U.N. Human Rights Commission) hardly justifies confidence that having a seat will enhance our influence, rather than constrain it.

The larger problem is the treaty's sheer size, with no fewer than 320 articles and nine annexes. These cover everything from "Criminal jurisdiction on board a foreign ship" (Article 27) to "Anadromous stocks" and "Catadromous Species" (Articles 65 and 66) to the "Jurisdiction of the Seabed Disputes Chamber" (Article 187). Much of this is anodyne, but perhaps the Senators should read the fine print before voting. They might be surprised by what they find.

Consider the treaty's potential effects on military activities. The Administration says these are excluded from the treaty and, further, that the U.S. gets to decide what constitutes such activity. But then how to explain Article 20, which states that "In the territorial sea, submarines and other underwater vehicles are required to navigate on the surface and to show their flag." How will this affect the ability of U.S. submarines to gather intelligence in coastal waters or deploy special forces on hostile shores? Last we checked, a $1 billion submarine called the USS Jimmy Carter had been built precisely for that purpose.

The Navy might also ask how its powerful sonars--which some environmentalists say harm marine life--could run afoul of Article 196. This states that countries "shall take all measures necessary to prevent, reduce and control pollution of the marine environment resulting from the use of technologies under their jurisdiction or control."

Or take concerns that the treaty's requirements on pollution are a back-door mechanism for forcing U.S. compliance with the Kyoto Treaty and other global environmental pacts. Confronted with the argument, an Administration spokesman told the Senate that the treaty did not exercise jurisdiction over land-based pollution. Replied Republican Senator David Vitter: "If it is . . . not covered by the treaty, why is there a section entitled, 'Pollution from Land-Based Sources'?" A good question, considering that Article 213 notes that countries "shall adopt laws and regulations and take other measures necessary to implement applicable international rules and standards established through competent international organizations" to control such pollution. Note our emphasis.


Critics are also right to be concerned about the powers of direct taxation the treaty confers on the International Seabed Authority. The details of this innovation are buried in Article 13 of the treaty's third annex, and contain a mix of "production charges" and annual million-dollar "administrative" fees. Such measures are all but unprecedented for an international organization and have a potential for corruption, especially when the taxes can run as high as 70% of net proceeds.

Some 154 countries have joined the Law of the Sea Treaty, with the U.S. one of the few holdouts. Critics are being labeled isolationists, or worse. But the U.S. has been abiding voluntarily with the terms of the treaty since 1983, with no ill effect. Twenty-some years ago a former President objected to handing sovereignty over two-thirds of the Earth's surface to another unaccountable international body. Ronald Reagan sank the treaty then; now it's up to 34 Senators to show similar courage.