Law of the Sea treaty will be used by environmentalists to push precautionary principle and sustainable development into international law

The environment is another issue of interest. University of Miami law professor Bernard H. Oxman, a long-time LOST advocate, argues that, “The Convention is one of the rare treaties to articulate a basic environmental norm in unqualified form.”¹⁹ There is nothing intrinsically wrong with articulating environmental norms—if they are justified, are qualified to account for competing interests, and are in accordance with each participant country’s governing institutions. But that is unlikely to emerge from a highly political process like the LOST negotiations.

Indeed, the Treaty risks endorsing some very bad environmental policy approaches. For example, South African Ambassador Sandile Nogxina, speaking on behalf of the African Group to celebrate the 10th anniversary of the LOST system, declared that, “The concept of sustainable development is a principle which the African group embraces.”²⁰ At the same ceremony, South Korea’s Jung Hai-ung, representing the Asian group, opined “that the precautionary approach set out in Agenda 21, chapter 17, should be applied to the seabed activities.”²¹ The Netherlands formally pushed the Council “to apply a precautionary approach to seabed exploration.”²²

All of these terms incorporate much larger political agendas. Biasing the process against development globally would have profound impacts on all peoples, and especially those in the poorest lands who most need the results of economic growth, international investment and trade, and globalization. Serious application of the precautionary principle would halt economic development, since it is impossible to prove a negative— that a new process or technology involves no risk. Trade-offs are inherent to any economic endeavor, with a thoughtful balancing of potential costs and benefits.