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Law of the Sea Treaty

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Concerned about America's unilateralistimage abroad, Secretary of State Condoleezza Rice has declared that the president wants to see the controversial Law of the Sea Treaty "pass as soon as possible." Americans would be better off if the administration allowed the treaty to sink beneath the waves, where it belongs.

One of President Reagan's notable achievements was derailing the omnibus convention. The treaty has been styled as a constitution of the oceans.

Although many of the treaty's provisions are uncontroversial, it was largely developed in the 1970s when Third World states were campaigning to mulct wealth and technology from the industrialized West. Mr. Reagan rejected the convention.

Unfortunately, bad treaties never seem to go away. The Clinton administration signed an agreement to revise the treaty in 1994. The Republican takeover of Congress ended ratification hopes, but now Republican members seem less likely to resist the Bush administration's importunings.

The Senate should stand firm against the treaty.

Covenants dealing with economic resources, the environment and navigation generally offer positive advances or reflect existing international law. In many cases, however, most of the benefits are achievable without the treaty.

Moreover, some treaty proponents see the convention as a "living" document. For instance, the U.N. Division for Ocean Affairs and the Law of the Sea explained that the treaty "is not, however, a static instrument, but rather a dynamic and evolving body of law that must be vigorously safeguarded and its implementation aggressively advanced." Creative international jurists could wreak enormous havoc.

Of greatest importance in today's unsettled security environment is free transit.

The treaty purports to guarantee freedom of navigation, but many of its provisions reflect customary international law. Moreover, the treaty is neither unambiguous nor will it prevent other nations from challenging the United States whether America is in or out of the treaty.

For instance, several countries, including major players such as Brazil, China, and India, have made extensive ocean claims opposed by other states as excessive. In Senate testimony, Adm. Michael G. Mullen, vice chief of naval operations, warned that the United States should not expect that "countries' attempts to restrict navigation will cease once the United States becomes a party to the Law of the Sea Convention."

The Bush administration also has emphasized that it expects the United States to have exclusive authority over military operations. But there is no guarantee that other states, especially when American "unilateralism" is under widespread attack, will respect Washington's determination. The United States might face an adverse treaty tribunal decision asserting jurisdiction over American naval activities — such as the Proliferation Security Initiative. An adverse ruling, warned Adm. Mullen, could harm "operational planning and activities, and our security."

The treaty's navigation provisions are a classic example of Arthur Conan Doyle's famous dog that didn't bark. Two decades ago, treaty proponents forecast disorder on the seas after America's rejection of the agreement. U.S. vessels continue to freely transit the seas.

Friendly relations with the few states that sit astride important sea lanes are more likely than an abstract multilateral treaty to ensure U.S. passage. In any case, the only certain guarantee of free transit is the Navy.

At the same time, the treaty retains many of its original worst flaws.

Convention advocates routinely claim that seabed mining is no longer an issue. The Clinton administration did improve the treaty, assuming the "fix" is juridically sound — not all parties have ratified the amendments. But the changes do not address the essential character of treaty.

The treaty still establishes what looks like a second United Nations. The multinational authority is run by a comically complicated system of assembly, council and various commissions and committees. Private companies would not only have to run the authority's regulatory gamut to win mining approval but would also have to subsidize the authority-controlled enterprise.

Of particular concern is the integrity of American technology, some of which might have military applications. The treaty still requires member governments to facilitate technology transfers to Third World miners as well as the enterprise if they are "unable to obtain" the necessary equipment commercially, whatever that ends up meaning.

Nor is there any reason to believe that the authority, to which America would be the largest contributor, would escape the numerous perverse incentives which afflict the United Nations. The United States possesses an uncertain ability to block bad initiatives and would be forced to make concessions to win support from developing states, which also possess effective veto power.

Some treaty advocates point out that seabed mining remains a distant prospect and ask: Who cares if this aspect of the convention remains flawed? But someday seabed resources might be worth recovering. Moreover, the undesirable precedents set by the treaty could have long-lasting impacts in other areas.

The Bush administration should withdraw the treaty from the Senate. If the administration fails to fulfill its responsibility, the Senate should reject the treaty.

Doug Bandow is a senior fellow at the Cato Institute. A special assistant to President Reagan, he served on the U.S. delegation to the Third U.N. Conference on the Law of the Sea.

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