The United States is again facing ratification of the United Nations Law of the Sea Treaty. As in 1982, there is sizable support for the treaty -- from U.S. business groups, our military and diplomatic corps, former secretaries of State, some 160 nations, the Obama administration and U.S. senators of both parties.
But mere strength in numbers wasn’t enough to persuade President Ronald Reagan of the treaty’s merits 30 years ago. And it shouldn’t be enough to persuade members of the U.S. Senate today.
President Reagan was convinced that the Law of the Sea Treaty’s sweeping power grab would erode American sovereignty by ceding our constitutional right to self governance to an unelected and unaccountable international body. This is why he asked me to serve as a special envoy and meet with key world leaders to seek their support in opposing the treaty.
Reagan understood well that underlying the Law of the Sea Treaty was a new concept of enormous consequence -- that the riches of the oceans beyond national boundaries are the “common heritage of mankind” and thus are owned in common by all people. This novel idea of “ownership” requires anyone who finds a way to make use of such riches to pay royalties of unknown amounts – potentially tens or even hundreds of billions of dollars -- for redistribution to less-developed nations.
The treaty establishes a strange way of looking at industry, investment, talent, risk and good fortune that is, in my view, fundamentally incompatible with the basic tenets of capitalism and free markets.
Redistributing a significant portion of the value of the minerals in the deep seabed to nations and organizations that will have absolutely nothing to do with their extraction is a novel and dangerous principal that has no clear limits. Imagine if fishermen who exerted themselves to catch fish on the high seas were required by a U.N. treaty to pay a share of their take to countries that had nothing to do with the fishermen’s costly and dangerous efforts. The treaty supporters making the argument for world “ownership” of the deep seabed could make similar arguments for outer space in the future.
There are practical and moral arguments in favor of developed countries providing financial and other forms of aid to poor countries. But the decision to provide such aid has always been and should remain a sovereign choice for each nation. In the case of the United States, it is a choice for American citizens and their elected representatives. I am convinced that the United States should not endorse a treaty that makes such a massive redistribution of wealth a legal obligation.
What makes such a transfer of wealth even more objectionable is its poor design. The mechanism outlined in the treaty is the newly created International Seabed Authority, which is effectively a U.N. agency that would be empowered to regulate all mining and oil and gas activity on the high seas. Those who like the expansion of federal regulation into more and more aspects of private business will like the new international regulations under the treaty even more.
Even more troubling is what might happen to the billions of dollars that will be funneled through “the Authority.” Global-governance advocates have long desired a reliable and independent revenue stream, separate from donations by member states. This is the genesis, I suspect, of the recent U.N. proposal for a worldwide “billionaires’ tax” – an annual 1 percent tax levied on the wealth of billionaires. The U.N. has an indisputably poor record in administering its programs and managing money. For example, the U.N. Oil for Food Program was a multi-billion dollar scandal.
If the United States decides it is in its interests to “share the wealth,” it should be distributed by our elected representatives in the U.S. Congress through our foreign aid programs or even by the World Bank which has a track record -- not by international fiat through “the Authority.”
One argument for the Law of the Sea Treaty is the U.S. Navy’s interest in “locking in” some navigation rights. It is correct that the treaty might provide some benefit in codifying existing rules of the road, but it would not solve many existing maritime disputes, such as in the South China Sea, where the Philippines and Vietnam are contesting China’s territorial claims. All of those nations are already signatories to the Law of the Sea Treaty and yet there has been no resolution of their differing views.
Law of the Sea Treaty proponents cite the 1994 renegotiation and amendments as definitive proof that President Reagan’s concerns, most notably about the deep seabed mining provisions, were resolved. However, many nations that are currently signatories have not agreed to the 1994 so-called “fixes,” so their status is debatable. I do not presume to know what our 40th president would think of the treaty today, but a 1982 diary entry of his offers a clue: “Decided in [National Security Council] meeting ― will not sign 'Law of the Sea' treaty even without seabed mining provisions."
The Law of the Sea Treaty’s 208 pages are riddled with ambiguous and problematic language that give sweeping new powers and potentially many billions of dollars to an untested international organization. By selectively reading the treaty, the U.S. military and American business groups, for example, can find sections to favor. The push for this agreement will not go away, but the U.S. senators who will be asked to consider the treaty will always need to view it in its entirety and in light of its long-term effects on American sovereignty. If they do so, I believe they will come to same conclusion I have: The Law of the Sea Treaty’s costs far outweigh any modest benefits.
Donald H. Rumsfeld was Secretary of Defense under President George W. Bush and President Gerald Ford.