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Get Lost, Law of the Sea Treaty!

Posted by Peter Brookes on

Breaking Defense’s February 29 piece, “Hill Turns Up Heat On White House Over ‘Law Of The Sea’” gives a good presentation of the reasons supporters believe the 1982 Law of the Sea Treaty (LOST) should be ratified, but it doesn’t talk about why the treaty was deep-sixed some 30 years ago — and has remained there since.

Here’s the rest of the story.

While LOST’s navigational tenets for operating on the high seas, including establishing territorial waters and exclusive economic zones, are of little dispute, some of the other “non-navigational” provisions are what really frighten the treaty’s detractors.

For instance, LOST established a new UN agency – the International Seabed Authority (ISA) –located in Kingston, Jamaica. This new entity would have a say over activities on our continental shelf, raising questions of sovereignty.

Currently, the U.S. government can collect royalty revenue from oil and gas companies and other developers that drill on our extended continental shelf, those undersea areas beyond 200 miles of our coast.

But, if we sign onto LOST, we’d be required to fork over a bunch of that revenue to the ISA for “redistribution” to land-locked and developing countries. We’re talking about giving away possibly tens — or even hundreds — of billions of dollars here. Hardly pocket change, especially considering the fiscal and budgetary challenges now facing our country.

Worse, as only one of some 160 ISA members, we’d only have one vote as to where that money went. This means we could well see those royalties going to any number of bad actor, corrupt or anti-American regimes.

In addition, LOST considers the deep seabed as the “common heritage of mankind.” But what they’re really getting at is if you want to harvest Davy Jones’ locker you need to ask pretty please of — tahdah! — the ISA.

This Mother-may-I would likely limit or discourage the private sector’s economic opportunities and activities in the deep seabed, affecting the provision of this likely-significant bounty to global markets.

Global energy demand-and prices at the pump-seem to be going anywhere but down. We don’t want to allow our energy exploration to be held hostage to the whims of some unaccountable international bureaucrats.

The treaty also includes a mandatory dispute resolution mechanism among LOST members. This could possibly put us in the cross-hairs for any number of bogus claims and law suits brought over such things as greenhouse gas emissions or pollution.

Now, proponents will tell you that all, or a lot, of these concerns were fixed in 1994 with some adjustments to the treaty, which President Clinton signed off on. Unfortunately, it didn’t secure a veto for Washington over decisions in Kingston.

Pro-LOST advocates will also tell you we need to get onboard the pact to better ensure our navigational rights, especially for the U.S. Navy, are recognized as we ply the Seven Seas in support of commerce and our national defense.

That’s a fair enough claim.

But the fact is LOST’s watery “rules of the road” are already generally-accepted international practice for navies and merchant marines operating on the world’s oceans. It’s hard to see how not joining it would inhibit future naval operations, as Navy brass has claimed.

Not to mention that some treaty signatories, such as China, are playing by their own rules, claiming “indisputable sovereignty” to the whole of the 1.3 million square mile South China Sea –a clear violation of LOST.

Beijing’s suspect legal and historical claims have led to Chinese bullying of neighbors such as the Philippines and Vietnam, which also assert sovereignty over some areas such as the Spratly Islands. (Brunei, Taiwan and Malaysia also make claims. in the area)

Indeed, lots of countries are pushing the U.S. to ratify LOST because they want Washington at the table to help defend their interests against those who already flout the treaty.

Plus, treaty opponents worry Team Obama might try to use LOST as a way to cut our Navy’s size further than plans already call for, instead looking to the UN to ensure freedom of the seas. Have fun storming that (sand) castle!

Considering all of this, it’s no wonder President Ronald Reagan, while supporting the navigation provisions of LOST, refused to sign this deeply-flawed convention. Every Senate since then has refused to ratify it, too-and for good reason.

As such, it’s probably best to tell the Law of the Sea Treaty to get lost again — this time for good.

Peter Brookes is a Heritage Foundation senior fellow and a former deputy assistant secretary of defense.

What do you think?