There have been so many intemperate and, frankly, shallow things written by the professional journalists in the news media and the amateur journalists of the blogosphere on the Law of the Sea Convention that I was very relieved to read Tyler Cowen’s thoughtful consideration of the subject. As I read Tyler’s commentary he comes down with a weak agreement:
The real issue these days is stopping the Russians from claiming most of the Arctic, at least the sea lanes, and this is why the Bush administration now supports the treaty. We’ll then have international support, or at least the pretext of such support, for telling the Russians they can’t colonize the Arctic. That’s it, that’s the whole real reason for supporting the treaty and jumping into bed with the UN. But hey, I can sympathize with stopping the Russians.
That reason may well outweigh the above-described costs of the treaty, which in any case lie in the future. So maybe I end up agreeing with Matt. But overall the Convention is not well thought out, and any support should be offered with the distinctly pinched nose occasioned by the most cynical (albeit sometimes justified) expressions of realpolitik.
I’ve read the Convention although I can’t honestly say I’ve studied it closely. If you care to do so, the HTML version is here. If you’re impatient, skip to Part XI—that’s what most of the controversy is about in the United States.
Part XI creates a distinct, parallel United Nations called the International Seabed Authority complete with general assembly, council, and agencies. The purpose of the Authority is, from Article 157:
1. The Authority is the organization through which States Parties shall, in accordance with this Part, organize and control activities in the Area, particularly with a view to administering the resources of the Area.
2. The powers and functions of the Authority shall be those expressly conferred upon it by this Convention. The Authority shall have such incidental powers, consistent with this Convention, as are implicit in and necessary for the exercise of those powers and functions with respect to activities in the Area.
3. The Authority is based on the principle of the sovereign equality of all its members.
I have no strong feelings about the Convention one way or the other. The United States is an outlier in its opinions and ways of doing things from most other countries in the world and, consequently, I think it’s prudent for the U. S. to be reluctant to enter into treaties and other international agreements. Don’t interpret that as a blanket condemnation of them. I merely think that, especially considering the special status accorded to such agreements under our Constitution, we should only enter into such agreements when it’s clearly in our interests to do so.
The underlying problem in the case of the Law of the Sea Convention is that the legal, political, and economic theories that form its basis are quite foreign to the United States but I think we should recognize that those same legal, political, and economic theories are considered axiomatic in much of the rest of the world.
In the end I have far more questions than answers about the Convention. For example, why is “the Enterprise” receiving such little attention? Here, from Article 170, is the relevant portion of the Convention:
1. The Enterprise shall be the organ of the Authority which shall carry out activities in the Area directly, pursuant to article 153, paragraph 2(a), as well as the transporting, processing and marketing of minerals recovered from the Area.
2. The Enterprise shall, within the framework of the international legal personality of the Authority, have such legal capacity as is provided for in the Statute set forth in Annex IV. The Enterprise shall act in accordance with this Convention and the rules, regulations and procedures of the Authority, as well as the general policies established by the Assembly, and shall be subject to the directives and control of the Council.
3. The Enterprise shall have its principal place of business at the seat of the Authority.
4. The Enterprise shall, in accordance with article 173, paragraph 2, and Annex IV, article 11, be provided with such funds as it may require to carry out its functions, and shall receive technology as provided in article 144 and other relevant provisions of this Convention.
As I read the Convention, the Enterprise would be the sole vehicle for developing the seabed, possibly in joint venture with private companies. Such public corporations or public/private joint ventures are pretty common, particularly in the developing world, but to the best of my knowledge they’re pretty unusual here.
Another question that comes to mind is would the ISA make a commons problem more or less likely? It seems to me that would be dependent on the relative importance given by assembly, council, and so on members to development as opposed to conservation or stewardship.
Would the provisions for technology and research in the Convention, noting the absence of intellectual property provisions in the Convention, promote or retard research?
Are there other more efficient mechanisms for achieving the objectives of the Conventions, particularly as they relate to Part XI, than the enormous structure that part establishes? Do we really need a second United Nations?
I find the treatment of the interests of all nations equally in the seabed to be somewhat problematic since, while there are provisions for sharing the benefits of seabed development and exploration, I don’t see provisions for sharing the costs, especially those that come in the form of negative externalities. It’s not obvious to me that the interests of land-locked countries like Austria and Afghanistan, those with coasts on a single body of water like Finland, and those with coasts on multiple bodies like the United States, Mexico, and Spain are equal. My point is that there’s a difference between stakeholders and stockholders.
I also note that there are provisions in the Conventions that are already obsolete, particularly those that grant excessive representation in the various organs of the ISA to eastern Europe.
I would genuinely like to see more serious discussion of the issues I’ve raised about and others relating to the Convention rather than the knee-jerking one way or another that seems to be the prevailing expression.
