- The Washington Times - Thursday, March 24, 2005

The Bush administration, and more than a few Senate Republicans, have chosen to support U.S. ratification of the U.N. Convention on the Law of the Sea. They should reconsider.

The fundamental flaws inherent in the treaty far outweigh any benefits the United States might hope to obtain by becoming a party. Indeed, the only real argument in favor of approving the treaty is that the United States should avoid upsetting an international consensus on this issue. In the past, the Bush administration has decisively and properly rejected this argument when fundamental issues of U.S. sovereignty are at stake. It should do so again.

The treaty began life more than 20 years ago as an effort to remake the legal regime applicable to the Earth’s oceans. The United States supported a number of the treaty’s substantive provisions, especially the right of coastal states to a 12-mile territorial sea, a 200-mile exclusive economic zone and free navigation of the seas. It continues to believe that these represent sensible codifications of customary international law. Overall, however, the agreement would have been a stunningly bad deal for the United States, especially in the area of exploring and exploiting the deep sea- bed.

Under these provisions, among other things, any American company wishing to undertake a sea bed project beyond U.S. territorial waters would have been required to survey two sites, making one over to an International Seabed Authority, along with the mining and navigational technology it uses. In addition, the authority’s decision-making apparatus would have been weighted heavily in favor of the Third World, including nations with no sea coast. As former U.S. Ambassador to the United Nations Jeane Kirkpatrick noted, “the formula for representation guaranteed that the industrialized ‘producer’ countries would be a permanent minority. And they would have a majority of obligations.” Rarely has a more naked wealth-shifting scheme been devised, and the Reagan administration understandably balked.

In the mid-1990s, a new supplementary agreement was negotiated in an effort to “resolve” the American objections, which were shared by a number of industrialized states. Unfortunately, although some provisions were modified — for instance, technology sharing would no longer be required and industrial nations would have more influence in the seabed authority decision-making process — the treaty’s most fundamental flaw was not addressed. This is the notion that the oceans and sea bed beyond established national jurisdiction constitute “the common heritage of mankind, the exploration and exploitation of which shall be carried out for the benefit of mankind as a whole.” The idea of a “global commons” is hardly new, but the treaty would effectively transform this remarkably fuzzy and pernicious concept from a rhetorical flourish into legal reality.

For anyone who cares about the principle of national sovereignty — which is the very basis of our right to self-government, honors private property and believes that market forces lead to the most efficient utilization of natural resources — the idea of a “global commons” must ring alarm bells. Actually vesting authority over more than two-thirds of the Earth’s surface — which is today open to American citizens as to others under customary international law — in an international governing body should be anathema. Obviously, President Bush does care deeply about American sovereignty — as he has proven on many occasions. So why does his administration support the treaty?

It is difficult not to conclude that there has been some good old fashion horse-trading involved here. The argument goes something like this: “The administration is against so many international initiatives that our allies support, including the International Criminal Court and the Kyoto Protocol, that we have to give them something.” Diplomatically, of course, such claims have some legitimate forces and, if only money were at stake in the treaty, they might well have merit here. But it’s not only money.

Since the Cold War’s end, activists, academics and governments have pursued a dedicated effort to remake the very structure of global governance. In particular, with the growth and consolidation of the European Union, our allies have increasingly called the question on how the Earth’s human communities should be organized. For nearly 400 years, this organization has been on the basis of independent nation-states, and it is in that context that the United States was born and its unique brand of democracy was well and truly established. By contrast, globalist or universalist ideas and institutions have in the past proven inimical to self-government and democracy, and there is every reason to believe that this will continue to be the case in the future, whether we deal with the Earth’s oceans, its landmasses, or outer space.

Until this issue is settled — preferably in America’s favor — the United States should oppose the creation of independent international institutions with the capacity to exercise actual political and regulatory power — especially with respect to individuals. The CLOS would establish just such an institution and should, on that account, be opposed. A time may well come when the peoples of the Earth do constitute a single polity, sharing in the same belief and value systems, and fully capable of governing themselves as a whole. This time, however, has not yet arrived, and vesting real power over the oceans’ vast resources in an institution controlled by international bureaucrats is simply not in the United States’ best interests.

David B. Rivkin Jr. and Lee A. Casey served in the Justice Department under Presidents Reagan and George H.W. Bush.

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