Saturday, September 1, 2007

Reagan's Concerns with LOST

Prior to his election to the White House in 1980, Ronald Reagan expressed opposition to the Law of the Sea Treaty then under negotiation. In 1982, President Reagan announced his rejection of the draft treaty and identified a large number of changes required to make it acceptable to his administration. Those changes were not accepted in subsequent negotiations and Mr. Reagan refused to sign what he considered to be a defective accord. In a 1983 Oceans Policy Statement, however, he directed the U.S. government to abide by the non-deep-seabed provisions of the Convention and encouraged other countries to do likewise.

Among the specific concerns with LOST identified by President Reagan in 1982 were: (1) the lack of adequate American influence within the decision-making bodies of the International Seabed Authority (ISA), in charge of regulating deep seabed mining in the oceans; (2) limitations on exploitation of the deep seabed; (3) mandatory technology transfers to the ISA and developing countries; (4) the competitive advantage given to a supranational mining company affiliated with the ISA known as the “Enterprise”; (5) the imposition of financial burdens on deep seabed mining operations; and (6) the potential for the ISA to impose regulatory burdens on the American mining industry.

In 1994, a separate, multilateral agreement was negotiated by the Clinton administration with many, but not all, of the then-parties to LOST. The question occurs: Did the “Agreement” (as it is known) satisfactorily address Mr. Reagan’s objections to the Treaty?

The Proponents’ Claims:

President Reagan’s objections were exclusively concerned with certain deep seabed mining provisions of the Convention. He considered that those provisions could be fixed and specifically identified the elements in need of revision. The 1994 Agreement fixed the relevant deep seabed mining provisions in ways that meet each one of President Reagan’s stated objections.

The Facts:

  • Ronald Reagan Opposed LOST on Principle

  • President Reagan was concerned not simply with specific provisions of Part XI of the Law of the Sea Treaty that dealt with deep seabed mining. As his chief negotiator for LOST, the late Amb. James Malone, noted in a Foreign Policy article in 1984: “…Security and economic interests vital to national well-being and the principles that form the foundation of American democracy must be given priority by those individuals entrusted to make public-policy decisions. It was this basic responsibility that made it necessary for the president to decide against U.S. acceptance of the United Nations Convention on the Law of the Sea in 1982.”

  • Many of President Reagan’s chief lieutenants – including: his National Security Advisor, Judge William Clark; his Counselor and Attorney General, Edwin Meese; his Secretary of Defense, the late Caspar Weinberger; his UN Ambassador, the late Jeane Kirkpatrick; and his Secretary of the Navy, John Lehman – agree that what Mr. Reagan found objectionable about LOST could not be fixed by relatively minor reworking of its provisions related to the International Seabed Authority.

The 1994 Agreement Did Not Amend LOST

Under the Law of the Sea Treaty’s own terms, the Treaty could not be amended for a decade after it entered into force. Since LOST did not enter into force until 1994, it was not available for amendment until 2004 – ten years after the 1994 Agreement was signed.

Even if LOST had been available for amendment, the 1994 Agreement did not conform to the procedures specified by the Treaty for adopting amendments. As a result, the terms of the Treaty have not been formally altered.

Presumably it is for these reasons that the 1994 Agreement does not explicitly amend LOST. Rather, the Agreement states that “The provisions of this Agreement and Part XI [of LOST] shall be interpreted and applied together as a single instrument.”

At the time, a representative of the American ocean mining industry cited this shortcoming in testimony before Congress: “[The 1994 Agreement] does not even purport to amend the Convention. It establishes controlling ‘interpretive provisions’ that will control in the event of a dispute. This is not an approach that gives confidence to prospective investors in ocean mining.”

Neither does the 1994 Agreement require any of the LOST tribunals to abide by the Agreement. This increases the likelihood that such panels, when hearing disputes between parties, will view LOST itself as the basis for resolving the dispute, and not the 1994 Agreement.

That is especially so since roughly sixteen percent of the parties to LOST – fully 25 member countries – have yet to sign the 1994 Agreement. It is far from clear on what basis these countries could be expected to view the Agreement’s purported revisions to the Treaty as legitimate. How, for instance, would resolutions be achieved in disputes between countries that are party to both LOST and the Agreement, on the one hand, and countries that are party only to LOST, on the other? At the very least, the latter could legitimately challenge claims by the United States (or others) to be bound by terms other than those contained in the Law of the Sea Treaty’s agreed text.

The 1994 Agreement’s Shortcomings

The foregoing issues aside, the Agreement falls significantly short of meeting of Mr. Reagan’s concerns even with respect to the problematic sections of LOST that it does address. For example:

  • The lack of U.S. Influence: The 1994 Agreement requires that any ISA Assembly decisions concerning administrative, budgetary and financial matters must be based on recommendations by the ISA Council. While the Agreement effectively guarantees the United States a seat on the Council, it does not assure this country a veto. To the extent the Council operates on the basis of consensus, America may have what amounts to such leverage. But nothing prevents the Council from acting instead on the basis of majority rule – in which case, Mr. Reagan’s concerns would still apply.

    For example, the 1994 Agreement still allows the ISA to amend LOST without American consent. The UN Secretary General can convene a conference, at which the Assembly and Council can vote to accept an amendment to LOST. It then requires the approval of three-fourths of LOST’s states parties to become final. As is often the case in UN settings, the United States could simply be outvoted.

    Furthermore, the argument that the United States would have to ratify any “amended treaty” to be bound by its terms ignores the reality of how LOST would likely work in practice. Changes that affect the U.S. could manifest themselves in the form of regulations decided upon within LOST bodies, which would not be ratified externally. Additionally, whether or not LOST is being “amended” in the formal sense would be dependant upon the subjective views of the LOST deliberative bodies. The U.S. could therefore find itself bound by modifications to LOST even without U.S. ratification of such changes.

  • Mandatory Technology Transfers: Although the 1994 Agreement purports to modify some troubling LOST provisions on the obligatory sharing of sensitive information and technologies, it fails to address, let alone alter, other coercive provisions. These include LOST’s requirement that states parties “promote the acquisition, evaluation and dissemination of marine technological knowledge and facilitate access to such information and data.”

    Neither does the Agreement speak to LOST’s requirement to transfer information and perhaps technology pursuant to the Treaty’s mandatory dispute resolution mechanisms. Parties to a dispute are required to provide the tribunal with “all relevant documents, facilities and information.” This amounts to an invitation for competitors to bring the United States and/or its companies or adversaries before a LOST tribunal to obtain sensitive data and know-how. These are hardly the sorts of safeguards upon which President Reagan insisted.

  • LOST’s Implications for U.S. Businesses: Another topic unaddressed by the Agreement is LOST’s requirement that half of each area surveyed by an American mining company must be turned over to the ISA for exploration by the Enterprise – with the ISA choosing which half. President Reagan correctly viewed this arrangement as one that would force American companies to assist competitors.

  • LOST’s Financial Burdens: Although the 1994 Agreement purports to lessen some of the onerous costs associated with exploiting the deep seabeds’ natural resources, other burdens imposed by LOST go unaddressed. The latter include taxes and fees that companies and countries must pay to the ISA, notably an application fee for required permits, an annual fixed-fee and royalties payments. Likewise, the Agreement does not try to alter the ISA’s authority to redistribute such revenues to other countries on the basis of “equitable sharing,” with special emphasis on developing nations – in other words, the kind of socialist, global wealth-redistribution scheme that Mr. Reagan viscerally opposed.LOST’s Regulatory Burdens: The 1994 Agreement does little to address President Reagan’s concerns about the Law of the Sea Treaty’s regulatory burdens. For example, the ISA still maintains the right to adopt “appropriate rules, regulations, and procedures for…the prevention, reduction and control of pollution and other hazards to the marine environment,” which would undoubtedly impose significant costs on American businesses and promote big (supranational) government.

Taken altogether, it is a canard to claim that the problems with the Law of the Sea Treaty that prompted President Reagan to reject it have been “fixed.” To the extent that the 1994 Agreement has any force and effect, it addresses only some of Mr. Reagan’s concerns. That accord does not even purport to alter much of what the President found unacceptable in this supranational government-empowering treaty. Insofar as the Agreement does not actually amend even those parts of LOST that it does address, it is misleading to contend that the Treaty would now be acceptable to Ronald Reagan – or that it should be to those who share his vision and values.

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