The National Interest and the Law of the Sea
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The urgency for the United States joining the convention is twofold. First, by not being a state party to the convention, the United States is unable to nominate or elect the expert commissioners who carry out the work of the CLCS. That reduces the ability of the United States to contribute to the work of the commission and ensure that the convention is applied fairly and objectively. Moreover, when Russia submitted what many considered an overly expansive claim in the Arctic Ocean in 2001, the U.S. ambassador to the UN, John Negroponte, could only file a demarche listing U.S. objections. By not acceding the convention, the United States has no standing before the commission in what will be the largest adjudication of state jurisdiction in world history.
Remaining a nonparty also prevents the United States from making its own submission to the commission. The State Department is currently overseeing an effort to collect evidence for an eventual American claim to the extended continental shelf, but the United States cannot formally submit this package for review by the CLCS until it formally joins the convention. By not joining, the United States is actually giving up sovereign rights—missing an opportunity for international recognition for a massive expansion of U.S. resources jurisdiction over as much as one million square kilometers of ocean, an area half the size of the Louisiana Purchase. Remaining outside the convention prevents the United States from participating in the process of overseeing the claims of other countries to the extended continental shelf and from formally making its own.
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The vastness of ocean space and the limits of our knowledge concerning the oceans’ future economic potential also make it critically important that the United States plays a central role in the future implementation of the convention. The convention facilitates the conduct of marine scientific research to expand understanding of the marine realm. As knowledge increases and as technology advances, the oceans may hold enormous, and as yet only dimly perceived, potential. When coupled with America’s unrivaled capacity for technological innovation, new ocean uses may become essential to helping drive economic prosperity for future generations. In the midst of a historic economic crisis, the United States needs to position itself by joining the treaty in order to secure its share of ocean industries of the future and the high- paying jobs they will create.
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The convention’s provisions on environmental protection address all sources of marine pollution, from ships and waste disposal at sea, in coastal areas and estuaries, to airborne particles. They create a framework for further developing measures to prevent, reduce, and control pollution globally, regionally, and nationally, and they call for measures to protect and preserve rare or fragile ecosystems, the habitat of depleted, threatened, or endangered species, and other forms of marine life.
Those facts alone argue strongly for U.S. accession. To answer the question “Why now?” however, a daunting set of comparatively new ecological threats must be considered. Climate change and the burgeoning industrialization of the oceans are giving rise to severe environmental stresses that require an urgent global response. U.S. leadership is critical, not only in undertaking the research that will help us understand the effects of climate change in the marine environment and related mitigation and adaptation options, but also in tackling the problems head-on. In many respects, such leadership cannot be fully realized without accession to the convention.
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Change is happening most rapidly, and can be seen most vividly, in the Arctic. The Arctic Ocean is the least understood of all the world’s oceans, but we know it is warming at approximately twice the rate of the rest of the oceans. That is causing the rapid retreat of Arctic sea ice. In September 2007, the minimum ice extent at the end of summer was 23 percent lower than what it had been in 2005, the previous record low, and 50 per- cent lower than was typical in the 1950s through the 1970s.26 Scientists from the National Snow and Ice Data Center and the National Center for Atmospheric Research have found that Arctic sea ice is melting even faster than models have projected, giving rise to predictions that the Arctic might be seasonally ice free as soon as 2013, and possibly earlier.
Such rapid change will lead to the local loss—or, in some cases, complete extinction—of certain Arctic species. Ice-associated marine algae and amphipods provide the base of the unique food web that includes a rich variety of invertebrates, fish, and birds. Ice-dependent ocean mammals, such as bowhead whales, narwhals, polar bears, ringed seals, and walruses, will also be directly affected by loss of habitat. The changes in the extent of Arctic sea ice will also have profound consequences for the world’s climate, increasing the retention of solar heat and reducing the vital temperature gradient between the warmer tropics and colder polar regions, thus altering ocean currents and weather patterns throughout the Northern Hemisphere.
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The convention provides two essential and immediate components for responding to piracy off the coast of Somalia. First, the convention permits any state to arrest pirates, seize pirate vessels, and prosecute pirates in the courts of the interdicting naval authority. Second, and equally important, the convention protects the sovereign rights of ocean-going states that participate in antipiracy naval operations in the territorial seas of failed states such as Somalia. This is critical for build- ing international naval flotillas for combating the growing pirate problem in the Indian Ocean.
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The United States cannot currently participate in the Commission on the Limits of the Continental Shelf, which oversees ocean delineation on the outer limits of the extended continental shelf (outer continental shelf). Even though it is collecting scientific evidence to support eventual claims off its Atlantic, Gulf, and Alaskan coasts, the United States, without becoming party to the convention, has no standing in the CLCS. This not only precludes it from making a submission claiming the sov- ereign rights over the resources of potentially more than one million square kilometers of the OCS, it also denies the United States any right to review or contest other claims that appear to be overly expansive, such as Russia’s in the Arctic. This is especially urgent this year, as the commission will review an influx of claims expected in May 2009, the deadline for twenty- six states to make their submissions based on the procedural clock that began ticking when they ratified the convention. (The United States would have ten years to make its claim if it were to join the convention.)
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American energy and deep-seabed companies are at a disad- vantage in making investments in the OCS due to the legal uncertainty over the outer limit of the U.S. continental shelf, nor can they obtain international recognition (and, as a result, financing) for mine sites or title to recovered minerals on the deep seabed beyond national jurisdiction. Even if U.S. firms were to unilaterally set out on their own, because the United States has negligible mineral-processing technology, they would have difficulty finding international partners to buy unprocessed minerals because they would have been obtained outside of the agreed regime.
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More difficult to measure than what would be gained from U.S. accession is the diplomatic blight on America’s reputation for rejecting a carefully negotiated accord that enjoys overwhelming international consensus, one that has been adjusted specifically to meet the demands put forth by President Reagan two decades ago. Remaining outside the convention undermines U.S. credibility abroad and limits the ability of the United States to achieve its national security objectives. The treaty was negotiated over decades during which American delegations scored important victories. To the dismay of the rest of the world that negotiated the convention with the United States in good faith (and is now proceeding in making ocean policy and setting legal precedent in forums where U.S. influence is diminished), after fifteen years the Senate has yet to have an up or down vote.
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Military Operations. U.S. military forces are already legally bound to follow the provisions of convention by virtue of President Reagan’s 1983 Statement on Ocean Policy; therefore, joining the convention will impose no additional restrictions on U.S. military operations. Since the completion of the 1994 agreement, there has been unanimous support for joining the convention by uniformed and civilian national security leaders, including the chairman and Joint Chiefs of Staff, the combatant commanders, and the comman- dant of the Coast Guard. The public record documenting historical and current support by national security leaders is overwhelming.32 The most recent testimony of Deputy Secretary of Defense Gordon England succinctly captures this support:
“President Bush, Secretary Gates, the Joint Chiefs of Staff, the Military Department Secretaries, the Combatant Commanders, the Commandant of the Coast Guard and I urge the Committee to give its approval for U.S. accession to the Law of the Sea Convention and ratification of the 1994 Agreement. The United States needs to join the Law of the Sea Convention, and join it now, to take full advantage of the many benefits it offers, to mitigate the increasing costs of being on the outside, and to support the global mobility of our armed forces and the sus- tainment of our combat forces overseas.”33
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The 1982 Convention on the Law of the Sea may seem an obscure agreement to nonexperts. That is not the case. The convention is a carefully negotiated international agreement numbering several hundred pages that covers a host of measurable national security, economic, and environmental issues of vital strategic importance to the United States. By remaining a nonparty to the convention, the United States not only forfeits these concrete interests but also undermines something more intangible: the legitimacy of U.S. leadership and its international repu- tation. For example, American pleas for other nations to follow pollution and fishing agreements ring empty when the United States visibly rejects the Law of the Sea Convention. Remaining outside the convention also hurts its diplomatic hand in other international forums, as well as the perceptions of other states about U.S. commitments to multilateral solutions. As former Supreme Court justice Sandra Day O’Connor has noted, “The decision not to sign on to legal frameworks the rest of the world supports is central to the decline of American influence around the world.”27