Washington: Outside the Mainstream

Reagan’s refusal to sign the Law of the Sea Treaty may make vital navigation rights hard to obtain in the future

A NEW MUTATION OF American isolationism has prevented this country from joining a major international organization we helped to create. President Reagan’s announcement, in July, that the United States would not sign the Law of the Sea Treaty seems an extravagant expenditure of U.S. political capital. Viewing the treaty’s system for mining the seabed as a form of supranational socialism, the Reagan Administration rejected negotiation in favor of an adamant assertion of free-enterprise rights. As a consequence, all U.S.-based corporations have effectively been excluded from seabed mining. Moreover, if the United States persists in its refusal to sign, the world’s largest maritime power may also find its navigation rights repeatedly challenged.

Simply put, the Law of the Sea Treaty, negotiated over fifteen years by 154 nations, sets forth a constitution for the oceans. Its more than 300 provisions cover all presently conceivable peaceful uses of the seas, including fishing, navigation, scientific research, and deep-sea mining.

In essence, the treaty seeks to balance a vast array of interests through two major compromises. It sanctions enlarged national control over coastal waters while also protecting the rights of those passing through these waters. On the question of seabed mining, the treaty attempts to accommodate both Third World hopes for a lien on international resources and Western resistance to multinational codes limiting private enterprise.

Territorial waters for coastal states will now be extended from three to twelve miles, and these states will be assured of title to all fish and mineral resources in a 200-mile “exclusive economic zone.” At the same time, a new right of “transit passage,”allowing free movement of submerged submarines and overflight of aircraft, assures unimpeded navigation by other states. This is important for maintaining passage through straits less than twenty-four miles wide, such as Gibraltar, Hormuz, Malacca, and even Dover.

Because both the United States and the Soviet Union viewed freedom of the seas as primary, the conference hammered out the compromises on navigation early—by 1976. On seabed mining, however, negotiations were more protracted. For the West and the Third World, the stakes were as much political as economic. Most of the ocean’s riches, including virtually all accessible petroleum reserves and up to about 90 percent of fish stocks, have now been appropriated in the 200-mile zones.

Beyond the 200-mile limits, and miles beneath the ocean’s surface, lie dense beds of potato-sized metal nodules, the residue of volcanic eruptions millions of years in the past. While these nodules of manganese, cobalt, copper, and nickel may eventually be worth hundreds of millions of dollars, Commerce Department and industry sources estimate that the market value of manganese, cobalt, copper, and nickel will not justify, until the 1990s or later, the $1.5 to $1.8 billion investment required for each mining site.

The industrialized countries and the Third World, nonetheless, differed pointedly on the issue of control: who will mine the seabed? While Western economics ministries wanted an agency that would merely sort out conflicting claims and issue mining licenses, the developing countries demanded an international Seabed Authority with full power to exploit the seabed.

The compromise embodied in the treaty does not perfectly serve U.S. interests. Proposed in outline by Henry Kissinger in 1976, the seabed-mining system shares access to seabed mine sites between individual operators and an internationally run company called the Enterprise. The seabed regime will limit production and the Third World will exercise a good deal of control over it. Neither the United States nor its allies would have been likely to endorse such an arrangement had it not been part of a package deal including navigation. As everyone involved in the negotiations for any length of time agrees, however, without such a seabed regime no treaty could have won acceptance by the Third World.

THE REAGAN ADMINISTRATION took office just before the scheduled final session of the conference believing it could prevent a Third World sea grab. Though mandated by the 1980 Republican platform to toughen up the U.S. negotiating position, Reagan appointees were uncertain whether the treaty could be improved, and some thought it should be scrapped, on grounds that it would inevitably compromise American principles.

Among those who favored improving the treaty were, reportedly, Secretary of State Alexander Haig and officials of the Departments of Transportation and Commerce. Because the Law of the Sea negotiations never ranked as a “frontburner” problem, however, a handful of committed ideologues among the middlelevel bureaucrats, enthusiastically supported by presidential counselor Edwin Meese, were permitted to run with the issue. Theodore G. Kronmiller, the deputy assistant secretary of state for oceans and fisheries affairs, led the anti-treaty phalanx. Kronmiller’s appointment fits this administration’s pattern of sending the fox to tend the chicken coop. Kronmiller had argued in 1980 in a two-volume study of the legality of deep-sea mining that “an impasse of a profoundly ideological nature appears likely to preclude the successful conclusion of a widely acceptable treaty establishing a new regime for the deep seabed.”

At the Defense Department, the new civilian appointees, led by John Lehman, the secretary of the Navy, and Fred Iklé, the undersecretary of defense for policy, executed a 180° turn in the department’s position, downplaying its previous strong endorsement of the navigation provisions as essential to U.S. security, and giving priority instead to “strategically essential” seabed minerals.

Before and during the conference, infighting between opponents and proponents produced some confusion concerning the U.S. position. Debate on the level of U.S. interests—involving production limits, technology transfer, U.S. leverage in decision-making—often masked frankly ideological opposition.

Secretary Lehman expressed the administration’s impatience when he declared, prior to the session, that “perhaps the American people have tired of their long years of sacrificing U.S. national goals and interests for the greater supranational interests of the world’s community of nations.” President Reagan reiterated his administration’s commitment to free enterprise just before the summit meeting on Third World development held at Cancun a year ago. He explained that “free people build free markets that ignite dynamic development for everyone. And that’s the key. . . it’s a question of freedom versus compulsion, of what works versus what doesn’t work, of sense versus nonsense.”

Many observers doubted, as the 1982 session approached, that the Americans would return to the conference, and, according to an official of the State Department’s Office of Ocean Law and Policy, the same doubt reigned within the administration. At almost the eleventh hour, however, treaty proponents won the first round. And just one month before the start of the preliminary negotiations, President Reagan announced that the United States would return to negotiate on six pragmatic-sounding objectives.

ARRIVING AT THE Law of the Sea Conference, the Reagan appointees faced serious obstacles. Many of the LOS delegates had been laboring together over the treaty for years, falling in and out of a variety of coalitions, as colleagues and friendly adversaries, members of a select group of cognoscenti on a very arcane subject indeed.

Old conference hands saw the treaty as the result of a historical process, as the product of remembered tradeoffs, pressures, gains, and losses. While the Americans came determined to resist Third World encroachment, many in the Third World caucus, the Group of 77, described the conference as nine years of U.S. pressure during which the Group moved back, inch by inch, until the Americans achieved almost all they were out to get. Ambassador Hasjim Djalal of Indonesia points out that his country (like most of the other Third World states) compromised a firm initial commitment to an international seabed monopoly. But then the Americans wanted more. “Every year,” he says, “we came to the conference wondering what new changes the United States wanted and which ones they would insist on.”

Given the treaty’s evolution—in accretions of oral history, written down, revised again through protracted ongoing conversations, and again recorded—the Reagan approach struck many as an attempt to turn the clock back to 1973, nullifying the prodigious expenditure of effort and ingenuity that had produced what many regarded as a nearly finished product by the end of 1980. At the beginning of the 1981 session of the conference, when the administration asked for a postponement in order to conduct a total review of the treaty, many delegates expressed disbelief and sharp frustration.

As the delegates returned to the conference last February, they labored under considerable confusion about U.S. intentions. Apparently, a similar uncertainty afflicted the American delegation. Leigh S. Ratiner, former deputy chairman of the U.S. delegation to the 1982 session, reported in this summer’s issue of Foreign Affairs that the U.S. delegation did not receive detailed instructions on the President’s objectives until the opening day, March 8, long after preliminary negotiations had begun, and less than two months before the scheduled end of the nine-year conference. Moreover, the instructions, negotiated exhaustively among various factions, held the delegation to a considerably more restrictive interpretation of the objectives than seemed implied in the President’s statement of them.

In the bureaucratic tug-of-war, Washington-based opponents easily outmaneuvered the proponents, many of whom were in New York trying to get a handle on what to negotiate. Robert Keating, a Defense Department consultant, reportedly added to the confusion in New York when he doubled as U.S. delegate and anti-treaty lobbyist. According to Barron’s magazine, Keating took time off in mid-April to organize a seabed-miners’ march on the White House. The miners sought and obtained from Edwin Meese reassurance that the U.S. would not compromise.

In preparation for a complicated negotiation that would end April 30, the U.S. delegation on February 24 circulated a long paper sketching all the U.S. problems and suggesting a wide variety of solutions. Pressed to put their proposals in specific treaty language, on March 19, the U.S. delegation produced a sixtyeight-page booklet with a splendid green cover which proposed amendments to more than half the seabed provisions. As a negotiating tool, the “green book” bombed. “Nobody took it seriously,” according to Dennis Francis, a Jamaican delegate, who observed that “the problem with the Americans was they were never in a position to reveal their bottom line.” Finally, on April 13, a streamlined twenty-four-page set of formal amendments emerged. By that time the negotiating was effectively over.

STRANGELY ENOUGH, BEFORE this session no one seems to have seriously considered the possibility of a Law of the Sea regime that did not include the United States. Throughout the longyears of negotiating, the deepest fear of sea-law advocates was that no treaty would ever emerge. The treaty’s staunch opponents in the administration, on the other hand, apparently assumed that America’s European allies would not join the regime without the U.S. Arguing that seabed mining should be considered one of the traditional freedoms of the sea, they counted on the Europeans’ joining a “mini-regime” for seabed mining.

Before the conference, Reagan officials campaigned actively to draw the British, the Germans, and the French into a compact to organize seabed miningoutside the Law of the Sea Treaty. By the end of February, the U.S. and its three principal European allies had virtually completed negotiations for a Reciprocating States Agreement. None wished to sign during the conference, though. And now that the treaty has been put in approved form and will almost surely be adopted, they cannot sign such an agreement without forfeiting their rights under the treaty. That U.S. alternative appears closed.

If key administration policy-makers had wanted an improved treaty, and had mounted their campaign with the finesse of Henry Kissinger, what could they have achieved? According to a variety of Third World, Western, and UN sources, a more flexible U.S. position might have permitted treaty provisions more favorable to American interests in the areas of decision-making, technology transfer, and accountability for the seabed regime. Knowledgeable observers speculate, however, that hard-liners in the administration didn’t want the concessions that the Third World was willing to give, because each improvement would strengthen the treaty’s attractions for the Europeans.

In sum, U.S. negotiators failed to achieve any of the President’s objectives, and may have lost a lot more. While showing the world that the United States will not be pushed around, we have also lost direct access to the “strategic minerals” of the seabed and we may have consigned our sailing ships to a complicated limbo outside the internationally accepted legal framework.

The costs of rejecting the treaty lie somewhere down the road. Although they have effectively been cut out, most U.S. seabed-mining companies continue to endorse the administration’s decision. In fact, they have lost nothing. If the potential for profits begins to escalate, they can always get hack into seabedmining through foreign subsidiaries.

What has been lost is one of the administration’s main objectives—securing U.S. access to the ocean’s minerals. Of the four principal mineral deposits, however, copper and nickel are available from many other sources; cobalt, though mainly supplied by a politically shaky Zaïre, can be extracted elsewhere, at a higher price. Without the seabed resources, our greatest long-run concern is the supply of manganese, because the Soviet Union and South Africa hold the major reserves.

The United States can expect to buy manganese and the other three minerals from any of the seabed miners (including companies based in Western Europe and in Japan) when increased demand makes mining them profitable. Friends and neighbors such as the Canadians and the Australians, sitting on large reserves of nickel, question whether the U.S. should be so anxious about access to seabed minerals.

WHAT, THEN, ARE the truly vital U.S. stakes in the treaty, and how will our decision not to sign affect them? Assured navigation rights are and always have been the primary U.S. interest. Regarding the minerals themselves, and the precedents embodied in the Seabed Authority, the United States did wage a continuing struggle from the outset of the negotiations to guard its own and Western interests—and thus improve prospects for Senate ratification. The Carter delegation, under Ambassador Elliot Richardson, even inserted a virtual mining code into the seabed text to secure fair terms of access for mining enterprises.

The administration’s main objections to the treaty were to provisions concerning production limitations, technology transfer, and majority-rule decisionmaking (especially in the amending process).

On many of these issues Richardson won technical concessions that protect real U.S. interests. On technology, for example, the treaty stipulates that contractors shall make technology available to the authority “on fair and reasonable commercial terms” for the first ten years of the Enterprise—but only if the same or equally useful equipment cannot be obtained on the open market. Since, according to studies conducted for the U.S. Interior Department, the seabed technology is now or will be available on the open market, this provision will have little impact on U.S. technology sources.

As for production limitations, proponents’ fears of cartels and escalating prices should be assuaged by the fact that the limits, set on the basis of complex formulas developed largely by American economists, float way above plausible projections of future seabed production.

Given the disproportion between political power and population size, decision-making disputes will continue to vex seabed politics. While the treaty defines the Seabed Authority’s one-nation/ one-vote assembly as “the supreme organ,” the authority’s thirty-six-member council (on which the United States holds a guaranteed seat if it signs the treaty) is given explicit reponsibility for business on a day-to-day basis, and virtually all important issues, the treaty stipulates, must be decided unanimously by the council.

However, the process for amending seabed provisions—a review conference may re-examine the treaty fifteen years after the start of seabed mining, and amendments may be approved by a three-fourths-majority vote five years later if no consensus can be reached— rightly irritates U.S. policy-makers. Apart from the question of whether the United States would be bound by an amendment before the Senate had ratified it, the review conference could also restructure the relationship between private enterprise and the international authority, changing the ground rules upon which the present bargain has been struck. Thus the United States could be forced, some years down the road, either to accept a revised treaty or to drop out altogether.

However, in the opinion of Bernard Oxman, an international lawyer and former vice chairman of the U.S. delegation, radical changes would call into question the workability of the whole seabed compact, and therefore they are unlikely to happen. In the future, as now, U.S. leverage will depend on how cohesively this country works with its allies. If a Third World cabal tries to impose an international monopoly several decades hence, the United States and the other seabed miners can resist if they work together.

In aggregate, the seabed-mining provisions do raise the costs for private enterprise. However, the treaty’s terms for mining are no more severe than those currently imposed by many Third World countries, where U.S. companies agree to transfer technology, build infrastructure, and pay whatever licensing fees are required.

If the U.S. stays out of the treaty, on the other hand, all these calculations become moot: U.S. corporations will lose their options to mine the seabed, because they will lack the secure legal claim they need to raise capital. The same legal uncertainties seem likely to discourage America’s European allies from contemplating a mini-treaty.

Beyond the seabed, the costs of U.S. opposition are less easy to define, and more serious. Many experts dispute the administration’s contention that we can reject the seabed regime but navigate freely through the straits under “customary law.”

Reportedly, all the European delegates to a July NATO meeting on the Law of the Sea expressed real doubts that the U.S.—as a non-signatory— could rely on customary law. On this point, Alan Beesley, head of the Canadian delegation, warned in a speech before the UN in April that the new definitions of navigation rights must now be regarded as subject to the law of treaties rather than to customary law. Moreover, Spain, which overlooks the Strait of Gibraltar, emphasized when voting for the convention that it did not view the treaty as merely confirming customary law.

Since coastal states are enthusiastic about the twelve-mile territorial sea and the 200-mile economic zone, the treaty’s extensions of jurisdiction may qualify as customary law; transit rights through straits, however, were negotiated into the treaty through hard-fought tradeoffs. Thus they cannot be considered as separate from the package deal. Nor can agreements governing marine scientific research, management of fisheries and protection of the marine environment, or limitations on a coastal state’s interference with shipping to protect its environment.

IN FACT, U.S. non-participation in the treaty will undoubtedly work against the evolution of the treaty into customary law. In the first place, the United States, throughout its history, has been noted for extensions of its jurisdiction over resources and navigation in its coastal waters. For example, during Prohibition, the U.S. declared its right to search all vessels for rum smugglers in a fifty-mile zone; we enforced a 200mile sanitary zone in the years immediately prior to our entry into World War II; and President Truman proclaimed U.S. rights to mine the continental shelf in 1945, years before any other coastal state moved even tentatively in that direction. Thus, the U.S. Congress, not bound by the treaty, may well fall into the historical pattern and itself add to restrictions on navigation in the 200-mile zone.

Second, other nations may challenge U.S. navigation rights in their coastal waters and straits. Department of Defense spokesmen assert that U.S. power and influence will make such challenges unlikely, inducing “rational behavior" in other coastal states, who know our bottom line: we can always “shoot our way through.”

Problems for U.S. navigation are, however, likely to take more subtle forms. States that control straits, such as Spain and Indonesia, could use U.S. non-participation in the Law of the Sea Treaty as a pretext for exacting a higher price during negotiations for, say, base rights, reciprocal taxation, or consular agreements. Eventually, U.S. commercial ships might be forced to pay large tolls to navigate other states’ coastal waters. Thus, the United States eventually might have to buy treaty rights in a series of bilateral deals.

Somewhat different dilemmas could bedevil U.S. military planners during a crisis. Although coastal states are unlikely to stop U.S. military vessels, the possibility injects an ambiguity into planning that might inhibit military actions. In a Middle East conflict, for example, U.S. reluctance to violate rights asserted by states in the area would greatly complicate resupply of Israel. Again, the price tag for secure U.S. expectations could escalate. (We could end up paying Spain alone more than the value of the deep-sea nodules.) The search for a way to avoid this sort of ad hoc bartering about jurisdiction is what impelled us to seek a treaty in the first place.

Similar motives will likely lead our allies to endorse the treaty now. The treaty-making process itself puts pressure on them to sign the convention soon. A plenary session was held in New York this September, and the signing ceremony will draw the delegates together again in December. Only those who sign the convention have the right to vote in the next phase of negotiations, the seabed Preparatory Commission, which will draw up the rules and regulations for the seabed regime. The commission may, for example, decide whether or not the PLO will share in seabed benefits; it will lay down detailed guidelines on access to seabed mining; and it will set the budget for the regime. Thus possible participants in the regime—and particularly potential miners—ought to keep a hand in until the last “t” is crossed.

THE JAPANESE HAVE already voted in favor of the treaty, and their interest in straits navigation, secure access to seabed minerals, and amicable relations with their Third World neighbors makes them unlikely to change their minds. The French, who also voted in favor, seem likely to sign early: the Mitterrand government has made North-South relations a priority, and treaty provisions give France—with its island possessions—the third largest economic zone in the world.

The United States has reportedly put a lot of pressure on the Thatcher government not to sign. However, Great Britain can best safeguard its main interests—navigation and the oil of its vast continental shelf—from within the treaty. Moreover, according to a British source, British industry (particularly the oil companies) solidly backs the treaty, and the British public, reflecting a national disposition favoring international law, supports treaties just as a matter of course.

In Germany, on the other hand, ideological opposition to the seabed regime most closely approximating that in the United States has shown itself—chiefly in parliamentary speeches by the CDUCSU opposition. Almost entirely deprived of coastal resources, the Germans place comparatively more importance on seabed mining than do their French and British partners in the European Community. On the other hand, Germans come under a particular pressure to sign. The conference selected Germany as the site for the treaty’s dispute-settlement tribunal—the first time since World War II that Germany has attained this form of international acceptance.

Although the allies do not wish to confront the United States over the treaty, in a sense this country has already confronted them. Reportedly, the precipitate U.S. declaration in July that we would not sign the convention, largely taken without allied consultation, incensed the Europeans. In addition, the overt U.S.-European conflict about the Soviet natural-gas pipeline seems to have broken down some of the conventions of inter-alliance civility and cooperation that might ordinarily foster U.S.European solidarity.

In all likelihood, the Europeans will make up their minds more or less in concert with each other, and will, for the most part, sign the convention in time to vote in the Preparatory Commission at an early stage. Ratification need not follow for several years (while the commission completes its work), but in none of these countries would the treaty face anything like the U.S. senatorial hurdles, and basic interests and attitudes will probably remain pretty much the same during that period.

For the next several years, America’s new international isolation may seem hardly to affect us. As Secretary Lehman sees it, “We will remain what we have always been—the primary guarantor of freedom in the world.” Others see us differently, however. Ambassador Djalal characterized the U.S. position as one of “total isolation in the world community of nations.”

Perhaps the most serious consequence may stem from the U.S. rejection of commonly accepted international law— or rather our attempt to rely on the parts of it we like while discarding the rest. As a nation we have, for good reason, preached the gospel of international law. Our far-flung political and economic interests can best thrive in an orderly world, and our democratic impediments to distant military adventures dictate a commitment to the peaceful settlement of disputes. In time, U.S. maneuverings outside treaty law will serve to weaken American credibility in denouncing terrorist violence, the illegal seizure of American embassies, and the unlawful use of force by the Soviet Union or by its proxies.

As time goes on, challenges to the United States will further erode the U.S. position as Western leader. In whatever way it meets them, the United States will lose face every time that it reaffirms its position as international maverick.

If its opposition to the treaty places the United States in an untenable position, what can be done about it? According to Ratiner and others, a few discreet amendments that would help ease the treaty through Senate ratification could be obtained between now and December. Since the President has firmly rejected the idea of such changes, however, another, more favorably disposed administration will have to take the treaty as is. In the future, neither Senate ratification nor treaty amendment will be easy to obtain. Although the costs of non-participation plainly will not permit the United States to remain outside the treaty indefinitely, the new American unilateralists may have ensured that outcome for some time to come.

—Jennifer Seymour Whitaker