I also believe, Mr. Chairman, that it is short-sighted to argue that, if the customary law system somehow breaks down, the United States, as the world’s pre-eminent naval power, wouldn’t have any trouble enforcing it. Clearly, our Navy could engage in such an effort. However, enforcing our navigational rights against every coastal nation in the event the Convention and customary law systems collapse would be very costly, both politically and economically. Moreover, it would divert our forces from their primary missions, including the long-term global war on terrorism. Excessive coastal nation claims are the primary threat to our navigational freedoms. Those claims can spread like a contagious virus, as they did in the 20th Century. The added legal security we get from a binding treaty permits us to use our military forces and diminishing resources more efficiently and effectively by concentrating on their primary missions.

U.S. adherence to the Convention is not necessary because navigational freedoms are not threatened (and the only guarantee of free passage on the seas is the power of the U.S. Navy).

• It is not true that our navigational freedoms are not threatened. There are more than one hundred illegal, excessive claims affecting vital navigational and overflight rights and freedoms.
• The United States has utilized diplomatic and operational challenges to resist the excessive maritime claims of other countries that interfere with U.S. navigational rights under customary international law as reflected in the Convention. But these operations entail a certain amount of risk – e.g., the Black Sea bumping incident with the former Soviet Union in 1988.
• Being a party to the Convention would significantly enhance our efforts to roll back these claims by, among other things, putting the United States in a far stronger position to assert our rights and affording us additional methods of resolving conflict.

The critics also show little understanding of the realities of asserting the rule of law in the world's oceans. They seemingly contend that the United States can protect its interests by shooting its way around the oceans rather than developing a stable and favorable legal regime, defensible with force if necessary, that provides a legal basis for naval and air operations. The United States simply cannot shoot its way to acceptable resolutions of oceans disputes with Canada, Chile, Brazil, India, Italy and other democracies. Nor is it realistic to ignore the effects of law and international agreements in our interactions with others. It is hubris to believe that the United States can disregard the law without consequences, as it creates scenarios where other nations follow suit, thus compromising interests on both sides. Ironically, at a time when the president of the United States is urging others toward the rule of law as a foreign policy interest, the critics voice only disdain for that principle.

Why support the Convention now? Administration officials cite a "resurgence of creeping jurisdiction" by coastal states within their EEZs.³⁶ This resurgence threatens Convention-based navigational rights, which are at least as important today as they were during the Cold War. Alternative ways to respond to creeping coastal state jurisdiction are not satisfactory. If the U.S. continues to rely on assertions that customary international law establishes certain navigational rights, coastal states may increasingly counterclaim that emerging customary international law restricts such rights in coastal zones.³⁷ Some coastal states may altogether deny that Convention-based navigational rights exist under customary international law. As Admiral Michael G. Mullen, Vice Chief of Naval Operations, testified before the Senate Foreign Relations Commit- tee, "some coastal states contend that the navigational and over- flight rights contained in the Convention are available only to those states that also accept the responsibilities set forth in the Convention by becoming parties to it."³⁸ if it joined the Convention, the U.S. would likely have less need to rely on either its Freedom of Navigation Program³⁹ or negotiating new bilateral agreements.⁴⁰ The rules in the Convention clarify issues and narrow considerably the range of possible disagreements over navigational rights. Accepting the Convention will thus be less expensive-in terms of dollars, potential confrontations or loss of good will with coastal states, and U.S. concessions on other fronts-than continuing to stand outside it.

One method the United States has adopted to deal with state claims inconsistent with international law as reflected in the Convention is the Freedom of Navigation (FON) Program. Initiated in 1979 and continued by every administration since then, this program combines diplomatic action and operational assertion of our navigation rights to discourage state claims inconsistent with international law as reflected in the Convention. But the political, economic, and military costs of this program are not trivial, and for a Navy stretched thin to meet its urgent operational commitments, every freedom of naviga- tion challenge comes with an opportunity cost somewhere else—to say nothing of the risks to the Sailors on those ships. This was put forcefully by then-CNO Vern Clark in a letter to the Senate Armed Services Committee:

For the many years we’ve remained outside the Convention, we’ve asked our young men and women to conduct operations, sometimes at great risk, to challenge the exces- sive maritime claims of other states. Joining the Law of the Sea Convention will let our people know that, when they’re operating in defense of this nation, far from our shores, they have the backing and the authority of widely recognized law to look to, rather than depending only upon the threat or use of force.

The tense showdown between the United States People’s Republic of China over the collision between a Chinese fighter and a Navy EP-3 aircraft—an event that occurred in China’s exclusive economic zone—is but one indication of the risks described by Admiral Clark. sufficient for US to secure its naval rights The tense showdown between the United States and the 

The costs of conducting frequent naval Freedom of Navigation missions may be significant—in political, economic, and military terms. Beyond the incidental financial costs of conducting such exercises, they sometimes require deploying naval vessels to regions they would not normally patrol. While some Freedom of Navigation missions would still be conducted, regardless of the U.S. position on the 1982 Convention, we believe that, from an operational standpoint, our dwindling naval forces would be able to shed some Freedom of Navigation commitments and that we would face fewer contentious issues if the United States were a signatory to the Treaty. As one observer put it, “If freedom of the seas has to be bought by vigilance and violence, then it will be, and the U.S. Navy will bear the brunt.”¹¹ While there have been no flagrant incidents of a Treaty signatory denying navigational rights to the United States as a nonsignatory, a climate of periodic discord and confusion has developed surrounding some maritime controversies.¹² This climate has the potential to be particularly acute for the United States. Without a Treaty, the United States has but two instruments to safeguard these freedoms should one or more nations fail to abide customary law: freedom of navigation assertions and diplomatic actions. This method is politically costly and detracts from other Navy missions.¹³

“Egregious Excessive Claims.” A ninth reason that led the United States toward accession to the Convention was the growing political and military cost of the Freedom of Navigation (FON) Program. This effort, initiated by the Carter administration in 1979 and continued under presidents Reagan, Bush, and Clinton, combined diplomatic and operational (not solely naval) means to discourage claims violating the navigational freedoms asserted by the 1982 Convention—freedoms that the US. supported even though, for other reasons, it had not signed the treaty.⁴⁹ The FON program involved (and at this writing still does) naval exercises and consultations, bilateral and multilateral, with other governments to promote maritime stability, conformance with international law, and adherence by all nations to the customary rules and international law reflected in the Convention.

This is just a sampling of excessive maritime claims and their sequels, but it represents the financial and diplomatic costs, as well of the risks, associated with the FON program. The case became compelling that such costs and risks would be substantially less under a specific, binding treaty.55 Two noted experts on the law of the sea, 1. Ashley Roach and Robert W. Smith, presented the position of the State Department in 1994: “Unilateral U.S. demonstrations of resolve—especially operational assertions—are sometimes viewed as antagonistic. They risk the possibility of military confrontation and of political costs that may be deemed unacceptable, with prejudice to other US. interests, including worldwide leadership in ocean affairs and support for use of cooperative, international solutions to mutual problems?“

In fact, many of the nations making claims that the U.S. considered excessive were asserting that the Convention was a legal contract, the rights and benefits of which were not necessarily available to non-parties—such as the United States. The Continual counter-assertion that these rights and benefits were already embodied in customary international law was appearing more and more difficult to sustain. In testimony before the Senate Foreign Relations Committee in the summer of 1994, the chairman of the Department of Defense Task Force on the Law of the Sea Convention, John McNeill, pointed to the likelihood of “increasingly egregious excessive claims” by many coastal states as a critically important reason to seek U.S. accession to the Convention.⁵⁷ The danger of continuing to rely on the FON program was summed up by Rear Admiral William Schachte: “The political costs and military risks of the Freedom of Navigation Program may well increase in the changing world order.”⁵⁸ Conversely, accession to the Convention, by the United States would, it was hoped, convince states making excessive claims to retract them and, perhaps more importantly, keep in check their natural desire to extend sovereignty to offshore areas, when it would be inimical to navigation and overflight rights.”

Suggestions that somehow our maritime interests can be asserted solely through robust naval power are not relevant to the real world. The overwhelming majority of ocean disputes do not involve enemies or issues that warrant military action. As Admiral Patrick Walsh testified at our first hearing in 2007

Freedom of navigation also underpins global economic prosperity. The oceans, wrote Professors McDougal and Burke, were a “spatial extension resource, principally useful as a domain for movement.”²⁰ With the increasing trend in global trade, exercising the freedom to navigate on the seas is becoming even more important. This trend is accelerating in an era of globalization. “Shipping lanes are getting busier,” reports the Wall Street Journal, “not just from Asia to North America and Europe, but within Asia.”²¹ The initial rise of the globalized economy, which began in mercantilist Europe, can be attributed in large part to unimpeded ocean transit. Four hundred years ago, the legal scholar Hugo Grotius cogently set forth the commercial doctrine that fueled international trade. “For do not the ocean,” Grotius wrote, “navigable in every direction with which God has encompassed all the earth, and the regular and occasional winds which blow now from one quarter and now from another, offer sufficient proof that Nature has given to all peoples a right of access to all other peoples?”²² The model of freedom of the seas also is regarded as the logical analogue for developing the legal regime for outer space.²³

Military operations since September 11—from Operation Enduring Freedom to Operation Iraqi Freedom to the Global War on Terrorism —have dramatically increased our global military requirements. U.S. Forces are continuously forward deployed worldwide to deter threats to our national security and are in position to respond rapidly to protect U.S. interests, either as part of a coalition or, if necessary, acting independently. U.S. military strategy envisions rapid deployment and mobility of forces overseas anytime, anywhere. A leaner, more agile force with a smaller overseas footprint places a premium on mobility and independent operational maneuver. Our mobility requirements have never been greater.

Future threats will likely emerge in places and in ways that are not yet fully clear. For these and other undefined future operational challenges, U.S. naval and air forces must take maximum advantage of the customary, established navigational rights that the Law of the Sea Convention codifies. Sustaining our overseas presence, responding to complex emergencies, prosecuting the global war on terrorism, and conducting operations far from our shores are only possible if military forces and military and civilian logistic supply ships and aircraft are able to make unencumbered use of the sea and air lines of communication. This is an enduring principle that has been in place since the founding of our country.

The National Strategy for Maritime Security (NSMS) identifies freedom of the seas as a “top national priority.”²⁶ Naval forces depend upon global strategic mobility and tactical maneuverability to conduct the spectrum of sea-air-land operations in pursuit of the national interest, and these operations include:

• operating the most survivable component of nuclear deterrence, ballistic missile submarines (SSBNs);²⁷
• conventional global strike;²⁸
• air and missile defense;²⁹
• information operations;³⁰
• sea and land direct attack with missiles, naval gunfire and aircraft;
• crisis and disaster response, such as tsunami relief;³¹
• maritime homeland security;³²
• amphibious and expeditionary operations in littoral areas;³³
• insertion of special operations forces (SOF) for missions such as counterinsurgency and counterterrorism;³⁴
• constabulary functions and maritime security operations (MSOs) such as counterdrug operations³⁵ and piracy repression;”³⁶
• counter proliferation operations such as the Proliferation Security Initiative (PSI) and the Protocols to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA);³⁷
• exercise of the right of approach, approach and visit, maritime interception operations (MIO) and visit, board, search and seizure (VBSS);
• naval control and protection of shipping (NCAPS);³⁸ exercise of sea lines of communication (SLOCs) through the global supply chain and strategic supply;
• sea control;³⁹ anti-access and sea denial strategies such as mining; civil-military affairs;⁴⁰
• security cooperation and peacekeeping;⁴¹ and forward presence.⁴²

In addition to securing the homeland, the exercise of these military activities ensures and relies on U.S. command of the global commons, which means the United States is readily able to insert power anywhere throughout the globe.⁴³ The Chief of Naval Oper- ations has said assuring access to the oceans and preserving the freedom to conduct naval operations is directly related to deterring war, or, if necessary, winning it.⁴⁴

The navigation and overflight freedoms we require through customary international law are better served by being a party to the Convention that codifies those freedoms. Being a party to the Convention is even more important because the trend among some coastal states is toward limiting historical navigational and overflight freedoms. Would-be adversaries, or nations that do not support the particular missions or activities we undertake, will be less likely to dispute our lawful use of the sea and air lanes if we are parties to the Convention. We support the Convention because it protects military mobility by codifying favorable transit rights in key international straits, archipelagic waters, and waters adjacent to coastal states where our forces must be able to operate freely.

As regards maritime boundaries, there presently exist about 200 undemarcated claims in the world with 30 to 40 actively in dispute. There are 24 island disputes. The end of the Cold War and global expansion of free market economies have created new incentives to resolve these disputes, particularly with regard to offshore oil and natural gas exploration. During the last few years hundreds of licenses, leases or other contracts for exploration rights have been granted in a variety of nations outside the U.S. These countries are eager to determine whether or not hydrocarbons are present in their continental shelves, and disputes over maritime boundaries are obstacles to states and business organizations which prefer certainty in such matters. We have had two such cases here in North America where bilateral efforts have been made to resolve the maritime boundaries between the U.S. and Mexico in the Gulf of Mexico and between the U.S. and Canada in the Beaufort Sea. Both of these initiatives have been driven by promising new petroleum discoveries in the regions. The boundary line with Mexico was resolved in 2000 after a multi-year period of bilateral negotiations. Negotiations with Canada, however, seem to be languishing.

While such bilateral resolution is always an option, the Convention provides stability and recognized international authority, standards and procedures for use in areas of potential boundary dispute, as well as a forum for dealing with such disputes and other issues.

As we look into the future, our status as a non-party will increasingly disadvantage the United States. Presently, the United States is forced to rely on customary international law as the basis for asserting our rights and freedoms in the maritime domain. In situations where coastal states assert maritime claims that exceed the rights afforded to them by the Convention, USPACOM challenges such claims through a variety of means including the U.S. Freedom of Navigation program, military-to-military communications, and diplomatic protests issued through the State Department. When challenging such excessive claims through military-to- military or diplomatic exchanges, the United States typically cites customary international law and the relevant provisions of the Convention. Unfortunately, because we are not a party to the Convention, our challenges are less credible than they would otherwise be. Other States are less persuaded to accept our demand that they comply with the rules set forth in the Convention, given that we have not joined the Convention ourselves.

Rising maritime powers across the globe are reinterpreting customary international law to promote their own national interests -- including in ways that may conflict with longstanding maritime norms and American interests. Nowhere is this more apparent than in the South China Sea, where China's outsized claim to the entire region flies in the face of both traditional practices and LOSC. But China is not the only offender. Burma, Thailand, and others are joining China in more restrictive interpretations of maritime navigational rights, including anti-access norms that could constrain the U.S. Navy's ease of access in this crucial maritime domain.

Unfortunately, the United States is not in a position to rebuff these restrictive interpretations and protect the maritime norms that have been so beneficial to the global economy and U.S. security. U.S. failure to ratify the treaty has prevented the United States from taking a seat at the table to avail itself of the convention's established legal frameworks, such as the Law of the Sea Tribunal. And while the United States sits on the sidelines, other countries are engaging in discussions of maritime law, and in some places working toward consensus on issues that could have consequences for the United States for decades. Joining the treaty will allow the United States to lead these important discussions and, more importantly, enable the United States to negotiate with countries from a position of strength to protect the customary practices codified by the convention.

Ratifying LOSC will also strengthen a range of ongoing U.S. security activities. The U.S. Navy and U.S. Coast Guard are our key instruments of power at sea and ratifying LOSC will strengthen their ability to do their job and work with others to protect U.S. interests, including areas such as counter proliferation and counter piracy. More importantly, ratifying the convention would give the U.S. Navy and Coast Guard the strongest legal footing for their actions, including in places like the Strait of Hormuz, where Iran has threatened to close access to the international passageway in direct violation of the convention. As Chairman of the Joint Chiefs of Staff General Martin Dempsey recently said, "It validates the operations we conduct today and realizes our vision for a secure future."

The time has now come for the United States to become party to this vital convention and regain its leadership position in ocean policy affairs. One benefit: Becoming a party to UNCLOS would greatly enhance homeland security. In his testimony before the Senate Foreign Relations Committee, Admiral James WatkinsWatkins, James. "Statement of Admiral James D. Watkins: Senate Advice and Consent to the Law of the Sea Convention ." Testimony before the Senate Foreign Relations Committee, October 14, 2003. [ More (2 quotes) ] U.S. military forces, including Coast Guard units, rely heavily on the many critical freedoms of navigation, over- flight, and operational principles codified in the convention. Under the current legal regime, the United States is not guaranteed such rights. While there is a strong argument that transit passage and archipelagic sea lanes passage have become established rights under customary international law, not all agree.

For example, the Islamic Republic of Iran, whose terri- torial waters overlap the shipping lanes in the critical Strait of Hormuz (through which much of the world’s oil passes) contends that only states that are party to UNCLOS are entitled to the full rights of transit passage.⁸ Moreover, neither of these critical navigational rights exists under any of the 1958 Geneva Conventions on the Law of the Sea, to which the United States continues to be bound. Becoming a party to the 1982 convention will supersede our obligations under the 1958 conventions and will ensure the entire range and ex- tent of our critical mobility rights in all the ocean waters of the world.

By most accounts, U.S. ratification of UNCLOS will have a positive effect on the environment. This is not because the U.S. will be binding itself to any new substantive norms. On the contrary, most substantive provisions of UNCLOS are already part of U.S. policy and have been for many years. Despite this, the conservation of ocean wildlife, the protection of delicate marine ecosystems, and the control of marine pollution are by their very nature multilateral issues. U.S. ratification will demonstrate U.S. commitment to address these problems in a cooperative manner at a time when some view U.S. policy as generally antithetical to multilateral arrangements. The environmental community strongly favors UNCLOS and U.S. ratification would send a message of support.

Mr. Chairman, the Law of the Sea Convention is a powerful and successful environmental treaty precisely because it seeks to achieve a reasonable balance between environmental and other interests. For many years, in the law of the sea negotiations and in other fora, the United States has tried to make clear that environmental treaties must be carefully framed to produce a reasonable accommodation of diverse interests. Some people have characterized this as opposition to environmental protection. Some of the extreme rhetoric used abroad has been particularly damaging to our reputation in important allied countries. The Senate now has a signal opportunity to set the record straight. Its approval of the Convention and the Implementing Agreement would suggest that there is every reason to ensure that the multilateral agenda is pursued carefully and that, as long as it may take, at the end of the day relevant interests are reasonably accommodated. It would announce that when that is done, America will stand second to none in joining to strengthen multilateralism, to strengthen the rule of law in international affairs, and to strengthen international protection of the environment.

While these powers give us a great deal of control over our interests in both environmental protection and the productive use of our continental shelf, in themselves they are insufficient to protect the full range of either our environmental interests or our energy and other interests. To protect those interests, we need to influence the laws and practices of foreign countries. It is for this reason that the Convention establishes a floor of generally accepted international standards that every coastal state must apply. Among the American interests that this protects are the following:

• Our neighbors have the same exclusive rights over the continental shelf off their coasts as we have off ours. Pollution from their activities can easily affect our waters, our resources, and our shores. This became abundantly clear a number of years ago when a pollution incident on the Mexican continental shelf gave rise to extensive public concerns in Texas and other Gulf states that our waters and coastline would be polluted. As a party to the Convention, we will have increased credibility and leverage to protect ourselves from such incidents in a way that avoids any appearance that we are bullying our neighbors.
   
• While every coastal state has the right to impose higher standards on its continental shelf activities, and ours are among the strongest in the world, the oil and gas industry is a global enterprise that can achieve economic efficiencies from uniform global standards regarding equipment and operations. Those efficiencies can of course help to keep down the cost of energy and free up additional capital for investment. As a party to the Convention, we will have increased credibility and leverage to promote stronger and more efficient international standards and their general acceptance.
   
• We live in an era of instant global news. A serious pollution catastrophe on the continental shelf anywhere in the world is likely to be reported, and its consequences televised, throughout the globe. This can stimulate public demands in many countries for new restrictions on continental shelf development. To the extent that this means that we all continue to learn from each others’ mistakes, this is of course a good thing. But to the extent that public excitement can lead to hasty and ill-considered actions either in the United States or in other countries, the economic consequences can be adverse, and the result may be an unnecessary increase in the price of energy. As a party to the Convention, we will have increased credibility and leverage to ensure the emergence and enforcement of international standards that reduce the likelihood of such events.
   
• Our interest in the health of the oceans throughout the world is no mere abstraction. They comprise over two-thirds of our world, and are essential to our well-being and the overall ecological balance of the planet. Marine living resources from the far reaches of the globe supply us and the rest of the world with food, with sources of recreation, with valuable scientific knowledge, and with the promise of new and more effective medicines. We have neither an environmental nor an economic interest in a race to the bottom in pollution regulation in other parts of the world that destroys marine life. As a party to the Convention, we will have increased credibility and leverage to exercise the kind of balanced global leadership in protecting the oceans that is incumbent upon the leading maritime power in the world and that the American people expect.

This is but one example of the benefits of the approach taken by the Convention to environmental protection. There are many others. The provisions that successfully accommodate the interests of states with respect to freedoms and rights of navigation and their interests with respect to prevention of pollution are obviously of great importance. The maintenance over time of a reasonable balance responsive to both navigation and environmental interests would unquestionably be advanced by U.S. participation in the Convention.

The treaty champions the rights of the American people in the conservation of their offshore living marine resources, particularly fish. Ninety percent of the living marine resources are harvested within 200 miles of the coast. The convention confirms the validity of the United States Exclusive Economic Zone, proclaimed by President Reagan in 1983. The treaty's provisions relating to the conservation and management of living marine resources are consistent with U.S. law, policy, and practice. Its provisions on the conservation of high seas fishery resources are more critical today than they were a few years ago because of the dramatic overfishing that has occurred worldwide just in the past decade. The dispute settlement provisions of the convention as they relate to high seas fisheries will help us ensure that overfishing does not occur on the high seas adjacent to our 200-mile zone in a manner detrimental to the interests of our fishing industry.

The convention champions the rights of the American people to protect the marine mammals that inhabit the vast ocean space. Americans care about whales and giant sea turtles and other important sea creatures. Poll after poll confirms this interest, and the treaty sets up the mechanisms whereby the United States can work to respond to these uniquely international issues.

This treaty champions the rights of the American people in the environmental arena. How does it do this?  It is the strongest and most comprehensive environmental treaty in existence or likely to emerge for quite some time. The convention establishes, for the first time, a comprehensive legal framework for the protection and preservation of the marine environment. By addressing all sources of marine pollution, such as pollution from vessels, seabed activities, ocean dumping, and land-based sources, it promotes the continuing improvement in the health of the world's oceans. This treaty effectively and expressly finds the right balance between economic and environmental interests. Of particular note, it finds the right balance between America's interests as a coastal state in protecting its environment and natural resources with the American armed forces' rights and freedoms of navigation around the world.

The Convention is also an environmental accord that provides a comprehensive framework for the prevention, reduction, and control of maritime pollution. The Coast Guard conducts a wide-ranging port state control program to purge our waters of substandard ships and is assisting other nations in doing the same. This initiative will be enhanced through the consistent application of the Convention’s broad enforcement mechanisms. Additionally, the Convention carefully balances the rights of coastal states to adopt certain measures to protect the marine environment adjacent to their shores and the general right of a flag state to set and enforce standards and requirements concerning the operation of its vessels. Becoming a party to the Law of the Sea Convention will strengthen the international credibility of the U.S. and our efforts to guide the development of internationally accepted vessel standards, thereby improving marine safety and protection of the marine environment.

Leadership in Environmental Concerns. A fourth reason for the change in the American attitude toward the Convention was a new global attitude toward management of the environment. Part XII of the Convention deals extensively with the protection and preservation of the marine environment, covering a wide array of issues, from general principles to global and regional cooperation, technical assistance, monitoring and environmental assessment, and responsibility and liability.³¹ The inclusion of strong environmental protection measures in the Convention was an earlier and enduring goal of the United States. In the decade following its completion, the U.S., along with many other nations, became even more interested in preserving the environment, to the point that such concerns in many cases supplanted economic considerations.³² Given that Part XII creates an effective, if diffuse, international mechanism for controlling marine pollution and establishes a symbiotic relationship between the Convention and other issue-specific agreements, the Clinton administration decided that agreeing to the Convention would ensure a stable regime for environmental protection.³³

With respect to protection of the U.S. coastal marine environment in particular, I would note that the Executive Branch, through the Department of Justice, the Department of Homeland Security, the Coast Guard, and the Environmental Protection Agency, has pursued a vigorous, successful enforcement initiative to detect and deter pollution from ships. In line with the policy of successive Administrations since 1983 to act in accordance with the balance of interests reflected in the Convention’s provisions regarding traditional uses of the oceans, U.S. marine pollution enforcement efforts have been undertaken in a manner consistent with the Convention, including its allocation of enforcement responsibilities among coastal States, flag States, and port States in various situations.

In order to ensure that the relationship between U.S. law and the Convention’s enforcement provisions is a seamless one, the Administration recommended, and the proposed resolution of advice and consent contains, a number of understandings that, among other things, harmonize certain domestic terminology with the Convention and confirm the longstanding right of a State to impose and enforce conditions for entry of foreign vessels into its ports. The Convention’s support of a State’s ability to exercise its domestic authority to regulate the introduction of invasive species into the marine environment and to regulate marine pollution from industrial operations on board foreign vessels is also highlighted.

The Committee has heard from many witnesses that our failure to ratify this global treaty has hurt us to some extent economically, diplomatically and environmentally. These witnesses have rightly noted that our failure to ratify the Convention has hurt not only our international credibility, but also our ability to effect future changes in the terms and agreements upon which international law is based. The United States is a world leader in marine conservation, and our accession to UNCLOS will greatly help us advance international standards and practices.

While the United States is a world superpower, we must fully engage our fellow nations and secure the cooperation of the international community if we are to be successful in protecting our oceans and their resources. For example, currently the United States adheres to the fisheries conservation measures in the Law of the Sea and subsequent Straddling Stocks Agreement, and we treat them as customary international law. However, unless we become a signatory to the treaty, we are without recourse to enforce this Agreement’s terms with regard to other states which do not. We are also unable to fully represent U.S. interests in negotiating future changes or terms to both of these agreements. Both the Pew and the Federal Oceans Commission have recently recommended accession for this purpose: to secure a positive environmental framework for U.S. ocean management. In sum, it is impossible to be a world leader relative to the health of the oceans without full participation in the international rule of law that applies to them.

The vision of UNCLOS as a constitution was introduced at the beginning of this testimony, and it must be revisited here. As a constitution, UNCLOS is not meant to be an inflexible, stagnant document. Rather, its provisions must be interpreted over time, and its processes applied to our expanding environmental awareness about our world’s oceans and the resources within them. In fact, subsequent multilateral environmental agreements have both reaffirmed and expanded upon UNCLOS’s regime for the marine environment.¹³

The United States will be in a better position to address the existing deficiencies or limitations in the rule of law for the oceans if it becomes a signatory to UNCLOS. In its 1998 joint statement, which provides the basis for my next remarks, the environmental community urged the United States to embrace its leadership role in the world by ensuring that UNCLOS serves as a framework for securing more protective regimes for the conservation of marine ecosystems and wildlife. This role must continue beyond accession to participation and negotiation for improved international environmental practices over time. I would like to take this opportunity to briefly mention a few of these emerging and important issues.

The U.S. currently regulates certain industrial facilities such as seafood processing vessels, aquaculture facility discharges, and offshore oil and gas operations under the permitting requirements of Sections 402 and 403 of the Clean Water Act. The U.S. also regulates certain cruise ship operations in the waters around Alaska. Additional measures will likely be necessary to address environmental issues arising from other industrial activities on vessels.

UNCLOS, if interpreted too narrowly, could constrain the United States’ ability to adopt and enforce these important measures. As noted earlier, Article 21.2 imposes limits on laws and regulations relating to “innocent passage.” Article 211 also raises similar issues. We urge the Senate to include an interpretive statement on this issue as part of its advice and consent, to be included with the instrument of accession. The statement must clarify that these vessels are not engaging in or innocent passage as defined in Articles 18 and 19, and that the U.S. is free to regulate vessels operating in a capacity other than innocent passage as necessary to protect against polluting discharges from these vessels.

Sustainability. The Convention also supports U.S. interests in the health of the world’s oceans and the living resources they contain. It addresses marine pollution from
a variety of sources, including ocean dumping and operational discharges from vessels. The framework appropriately balances the interests of the coastal State in protection of the marine environment and its natural resources with the navigational rights and freedoms of all States. This framework, among other things, supports vital economic activities off the coast of the United States. Further, the United States has stringent laws regulating protection of the marine environment, and we would be in a stronger position as a party to the Convention as we encourage other countries to follow suit.

The Convention also promotes the conservation of various marine resources. Indeed, U.S. ocean resource-related industries strongly support U.S. accession to the Convention. U.S. fishermen, for example, want their government to be in the strongest possible position to encourage other governments to hold their fishermen to the same standards we are already following, under the Convention and under the Fish Stocks Agreement that elaborates the Convention’s provisions on straddling fish stocks and highly migratory fish stocks.

The Law of the Sea Convention provides strong protection for the marine environment. Indeed, the Rio Conference on the Environment accepted Part XII of the Convention as the core environmental provisions for the world’s oceans. Not surprisingly, American environmental groups overwhelmingly support adherence to the Convention. Indeed, in one case, that of the protection of marine mammals, the Convention embodies the initiative of a United States environmental NGO. Thus, Article 65 of the Convention on the protection of marine mammals was negotiated following important work done by the Connecticut Cetacean Society. United States influence was also felt in requirements concerning monitoring, publication of reports, and assessment of potential effects of activities. The United States was further successful in avoiding any environmental double standard in the world’s oceans.

Remarkably, the important new environmental provisions of the Convention are sufficiently balanced that they enjoy the support of all United States oceans interests. Support for this Convention is that rare public policy issue on which both industry and environmental groups strongly agree.

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.

While the United States took a leading role in creating UNCLOS, it is not one of the 165 countries that have ratified the treaty. At the Economist World Oceans Summit in February, Secretary Kerry criticized the U.S. Senate for inaction—while adding that the United States is nonetheless “committed to living by the law of the sea even though it isn’t ratified.” But there is no substitute for ratification, which would benefit the United States for a host of reasons, both practical and symbolic. One of the most important is the signal it would send to the rest of the world. In his May speech at West Point, President Obama once again called for Senate action on UNCLOS. “American influence is always stronger when we lead by example,” he explained, “we can’t exempt ourselves from the rules that apply to everybody else.”

Preventing the continued destruction of three quarters of our planet will require inspired U.S. leadership of the sort that was on display last week in Washington. The health of the ocean is essential for the survival not only of sea life, but of human life. As oceanographer Jacques Cousteau warned in 1981, “[the ocean] is man’s only hope. …we are all in the same boat.”

The Law of the Sea Convention provides a comprehensive framework for international cooperation to protect the marine environment. It imposes minimum requirements—all of which are already being met by the United States—to protect and preserve the marine environment. Under the Convention, states are required to take measures to address pollution from vessels and landbased sources, to prevent the introduction of alien or invasive species, and to conserve and manage coastal fisheries.

The Convention also requires states to work together to protect the oceans. States are required to cooperate in the management of high seas fish stocks, as well as stocks that migrate between the high seas and exclusive economic zones, setting the stage for regional agreements essential to managing ocean fisheries. States are also required to work together to protect marine mammals, which are given special protections under the Convention.

The standards for environmental protection set forth in the Convention work strongly to the advantage of the United States, which has already met and in most cases significantly exceeded these standards but necessarily depends on actions by other nations to protect the marine environment.

As national governments debate the merits of joining UNCLOS III, international conflicts over fishing rights continue to develop throughout the world. Of particular note are: 1) disputes in the Spratly Islands of southeast Asia; 2) negotiations between Japan and South Korea over the Islets of Takeshima; 3) negotiations between China and South Korea involving shared waters; and 4) conflicts over conservation practices between Canada, Spain, and the United States. These disputes illustrate some of the issues that need to be settled to solve the overfishing problem. In each instance, agreements are being worked out in accordance with UNCLOS III. Unfortunately, although UNCLOS III provides the framework to begin resolving these disputes, a great deal of uncertainty surrounding international fishing regulation continues.ⁿ¹⁸⁵ In many instances who has the power to dictate fishing rights and territory remains unclear.ⁿ¹⁸⁶ In some cases, fishing practices that lead to unhealthy depletion of fish stocks continue unchecked.ⁿ¹⁸⁷ In other instances, temporary solutions are implemented, but the future still is unknown. Widespread acceptance of UNCLOS III would provide the necessary structure to resolve these tenuous situations.

These agreements indicate the power that UNCLOS III has had over fishing law. Yet until major fishing nations such as the United States ratify the convention, it cannot reach its full potential. The United States will suffer if fisheries continue to decline. Although the United States played a major role in initiating the Convention in 1973, and despite backing from President Clinton and other officials, many predict the Senate to put up a tough fight before it approves the treaty if it ever does. Opposition in the United States is primarily focused on provisions involving deep seabed mining and navigation rights for naval and air forces. The United States historically has been particularly concerned about retaining its right of innocent passage for warships through international straits.

Until the United States becomes a party to the Convention, customary international law and other treaties will set U.S. rights and duties with respect to international fishing issues. The United States is already a party to several treaties by which it implements many of the convention's international fishing goals. A number of UNCLOS III's provisions have been incorporated into U.S. domestic law. The Magnuson Stevens Fisheries Conservation and Management Act of 1976 established the United States' fishing policies. "The original act gave the United States jurisdiction over fishing grounds within 200 miles of the American coastline." Reauthorized by Congress in 1997, the act now implements tough conservation provisions.

U.S. proponents of the Convention argue that the United States can only benefit from the UNCLOS III negotiations by ratifying the treaty. Specifically, the United States would be able to take advantage of the conservation and dispute settlement provisions, while also helping stabilize "the customary rules which states now argue do or do not exist." The United States' continued absence from the treaty may undermine U.S. power to influence the international law of the sea.

Overfishing is a tremendous problem facing the world's oceans.ⁿ³²⁰ The problem is perpetuated by individual national conservation efforts.ⁿ³²¹ Although aimed at curbing overfishing, these programs have little effect if they apply only to one nation. ⁿ³²² Fish are a resource that knows no boundaries. A limit on fishing by one nation does nothing to stop overfishing by another nation that exploits the same fishery. It also can lead to international conflict, as is evidenced by the "cod war" between Iceland and the United Kingdom. Only a joint effort by the world's largest fishing nations can bring the problem under control.

UNCLOS III is not perfect. Still, it is the strongest comprehensive environmental law agreement ever created. Its provisions dealing with fisheries conservation and management stress cooperation and coordination. The Convention also provides a framework necessary to implement conservation and dispute settlement. These provisions are essential for the world to begin to solve the overfishing problem. For example, by legitimating the EEZ and other zones of control, the Convention actually encourages nations to work together. Nations must agree on boundaries and on conservation plans.

Widespread support of UNCLOS III is necessary to control overfishing. Even widespread support, however, is not enough if large fishing nations still do not adhere to the agreement. The United States and Canada have not yet ratified the convention. Without their support, the international agreement cannot be effective.

UNCLOS III provisions played a key role in the resolution of a major conflict in the Central Bering Sea in 1994. n285 The problem arose in the mid1980s, when the vessels of several nations began to fish a stock of pollack in an area of the Central Bering Sea just outside the U.S. and Russian 200mile EEZs. n286 The fish stock was largely associated with the U.S. zone and its fisheries.ⁿ²⁸⁷ The international fishery grew quickly, with the annual harvest soon reaching 1.5 million metric tons or more.ⁿ²⁸⁸ American fishermen increasingly called on the U.S. government to control international fishing in the Central Bering Sea, also known as the "Bering Sea Donut Hole."ⁿ²⁸⁹ By 1991, negotiations began among the nations that used the fishery: Russia, Japan, South Korea, China, Taiwan, Poland, and the United States.ⁿ²⁹⁰ These nations debated over whether the United States and Russia had a special right to the stocks.ⁿ²⁹¹ The result was the "Donut Hole Convention,"ⁿ²⁹² which has been described as a "precautionary approach to stock management."ⁿ²⁹³ Ambassador Colson has argued that UNCLOS III did not hinder the Donut Hole agreement; in fact, "the Donut Hole Convention could not have been negotiated without the framework and foundation provided by the Law of the Sea Convention."ⁿ²⁹⁴ Among the requirements of the Donut Hole agreement is that fishing vessels must use realtime satellite positionfixing transmitters while in the Bering Sea so nations can ensure that vessels are there only to navigate to and from the fishing ground.ⁿ²⁹⁵ The agreement also provides for boarding and inspection of fishing vessels by any party, and it establishes procedures to "ensure that no fishing occurs in the Donut Hole except in accordance with sound conservation and management rules."ⁿ²⁹⁶ While the Donut Hole Convention was negotiated with UNCLOS III in mind,ⁿ²⁹⁷ according to Ambassador Colson, "the Law of the Sea Convention can help the Donut Hole Convention by providing an alternative enforcement mechanism to ensure than no vessel undertakes conduct in the Central Bering Sea contrary to the provisions of the Donut Hole Convention."ⁿ²⁹⁸ The dispute settlement provisions of UNCLOS III would enable the parties to "ensure enforcement of multilateral fishery conservation arrangements on the high seas ... The Law of the Sea dispute settlement option can act both as a deterrent and as a means to bring about final resolution should problems arise in the Donut Hole in the future."

In another instance, Canada sparred with the United States over fishing rights. In 1994, Canada developed a plan to levy a $1100 fee on United States fishing vessels that travel along the 650mile Inside Passage from Puget Sound, Oregon and Washington to Alaska.ⁿ²³¹ Senator Pell argued:

The State Department concluded that this transit fee was inconsistent with international law, and particularly with the transit rights guaranteed to vessels under customary international law and the Law of the Sea Convention. Had the United States and Canada both ratified the Law of the Sea Convention ... The Canadians might have been more hesitant to take the steps they did. In any event, the full force of the convention and the international community could have been brought to bear for a prompt resolution of the dispute.ⁿ²³²

Thus, according to Senator Pell, UNCLOS III could help the United States resolve its international conflicts over fishing.

The Convention also maximizes legal certainty for United States sovereign rights over ocean resources in the largest EEZ in the world, as well as energy and mineral and other resources on our extended continental shelf. The Convention provides the mechanism to assure international recognition of additional United States sovereign rights on an extended continental shelf. Moreover, due to overfished and depleted fish populations, effective management of migratory fish stocks and fisheries will continue to be a contentious issue for the foreseeable future. The Convention is widely accepted as the legal framework under which all international fisheries are regulated and enforced. The Convention imposes responsibilities on the coastal states to manage their fishery resources responsibly and provides a process for resolving conflicts between competing users. The Coast Guard defends United States sovereign rights by protecting our precious ocean resources from poaching, unlawful incursion, and illegal exploitation. Joining the Convention places these sovereign rights on a firmer legal foundation, bolstering the Coast Guard’s continued ability to ensure our Nation’s sovereign rights are respected.

In particular, becoming a party to the Convention will give the Coast Guard greater leverage in our efforts to eliminate illegal, unreported, and unregulated fishing. American fishermen are currently abiding by standards contemplated by the Convention and further detailed in the related UN Fish Stocks Agreement. They are adversely affected by foreign fishermen who illegally harvest highly migratory fish stocks. In another anomalous situation, the United States is a party to the UN Fish Stocks Agreement, which is directly related to the legal regime of the Law of the Sea Convention, even though we have not joined the underlying Convention. As a party to the Convention, we would be in a stronger position to persuade other nations to abide by the UN Fish Stocks Agreement and other modern international standards of fisheries management and thus advance our Nation’s interests in this field.

Without venturing into the intricacies of how an RFMO for the Arctic Ocean might be established and operated, the point is that the United States, Russia, and the other Arctic states are familiar with the challenges of managing sustainable fisheries and the consequences of failing to act proactively. Furthermore, all eight Arctic states have ratified the Fish Stocks Agreement, a strong indication “that all eight states have already accepted the principles established by [UNCLOS] that includes the enforcement of regional fisheries agreements in the high seas.”⁹² In short, cooperation among the Arctic states, including Russia, seems more likely than conflict on fisheries issues. The real question may be whether those states allocate sufficient resources to the enforcement of whatever regime is put in place.

Not all Arctic resources are buried in the continental shelf. In the United States, fisheries and the seafood industry account for $30 billion domesti- cally, $12 billion in exports, and employ more than 100,000.³⁸ In the southern Arctic region (Bering Sea and Gulf of Alaska), they are leading employers and sustain the indigenous people.³⁹ World-class fisheries are found in the Barents and Bering seas, the Central North Atlantic off Greenland and Iceland, and the Newfoundland and Labrador seas off the coast of northeastern Canada.⁴⁰ Regulating and monitoring these stocks in the Arctic are critical economically and strategically. If not protected, the fisheries would be decimated by overfishing. The 110th Congress stated that ‘‘the United States should initiate international discussions and take necessary steps with other Arctic nations to negotiate an agreement or agreements for managing migratory, trans-boundary, and straddling fish stocks in the Arctic Ocean and establishing a new international fisheries management organization or organizations for the region.’’⁴¹

The United States remains in a holding pattern. The North Pacific Fishery Management Council voted to close the Arctic to commercial fishing until it can be conducted sustainably, a management mechanism is developed, and we can implement an ecosystem-based management policy for Arctic resources.⁴² At some point, the United States cannot maintain this policy unilaterally and must enforce an international regime through patrolling and monitor- ing foreign fishing and fish-processing vessels in the region.

In recognizing the sovereign rights and management authority of coastal States over living resources within their EEZs, the Convention brings most fisheries under the jurisdiction of coastal States. (Some 90 percent of living marine resources are harvested within 200 nautical miles of the coast.) The Convention imposes on coastal States a duty to conserve these resources and also imposes obligations upon all States to cooperate in the conservation of fisheries populations on the high seas and of populations that are found both on the high seas and within the EEZ (highly migratory stocks, such as tuna, as well as "straddling stocks"). In addition, it contains specific measures for the conservation of anadromous species, such as salmon, and for marine mammals, such as whales. These provisions of the Convention give the United States the right to regulate fisheries in the largest EEZ in the world, an area significantly greater than U.S. land territory, which contains some of the most resource-rich waters on the planet.

The effects of overfishing may be the most devastating in Canada.ⁿ²²¹ As a result, Canada has made drastic decisions in an attempt to save the fish stocks. In the 1990s, the northern cod fishery off the Grand Banks near Canada collapsed.ⁿ²²² Canada made the unpopular decision to close the fishery in an attempt to maintain sustainable fish stocks within its EEZ. 

The decision focused attention on nations fishing the same stocks outside Canada's EEZ.  The result was the socalled "turbot [cod] war," an open conflict with fishermen from outside Canada who were perceived to be contributing to the problems on the Grand Banks.  In 1995, a Canadian vessel fired warning shots and impounded the "Estai," a Spanish fishing vessel operating on the Grand Banks off the coast of Newfoundland.  In a discussion about the United States' ratification of UNCLOS III, U.S. Senator Claiborne Pell argued before the U.S. Senate that similar incidents could be avoided in the future if UNLCOS III gains widespread support:

Had Canada and Spain both been party to the Law of the Sea Convention, this dispute could have been settled without the firing of shots. Regrettably, such incidents are the result of the growing uncertainty that prevails with regard to high seas fisheries and will only be avoided if the Convention on the Law of the Sea becomes a widely recognized instrument on which ... to establish a lasting regime for those fisheries.

UNCLOS serves as the international foundation for fisheries management, giving coastal states sovereign rights over natural resources in their EEZs, a duty to conserve and the right to utilize fish stocks, and a duty to cooperate with other countries in the management of certain fish stocks.⁵¹ The 1995 United Nations Fish Stocks Agreement,⁵² to which the United States is a party, provides a precautionary approach to fisheries and encourages regional cooperation in management of fisheries in the high seas.⁵³ Although UNCLOS does not provide a detailed regime through which state parties must manage fisheries, it provides a broad framework that encourages multilateral approaches to sustainable development of fish stocks.⁵⁴

Another sovereignty-related issue that the Convention addresses is conservation and pollution on the seas, a pressing concern given the widespread exploitation of the sea and its resources.⁴³ Part XII of the Convention, entitled Protection and Preservation of the Marine Environment, imposes upon states the “obligation to protect and preserve the marine environment.”⁴⁴ The Convention also includes detailed provisions that explicitly require state parties to take measures to prevent, reduce and control pollution.⁴⁵ States are required to cooperate with global and regional efforts in combating pollution by setting standards, rules, and recommended practices, many of these through appropriate international organizations.⁴⁶ Furthermore, the Convention requires states to take the affirmative step of implementing systems for monitoring and reporting the risks and effects of pollution to their marine environments.⁴⁷

Conservation and pollution provisions are included in the 1966 Convention on Fishing and Conservation of the Living Resources of the High Seas, to which the United States is also a party.⁴⁸ As mentioned previously, this convention permits high seas fishing while also requiring states take steps to conserve the seas’ living resources.⁴⁹

The seabed and deep sea is the last frontier on Earth, the vast majority of it unexplored by humans. We have more detailed maps of Mars than we have of the seafloor. Some deep-sea communities, such as those found on and around hydrothermal vents, are barely understood. First discovered in 1977, these hydrothermal vents are like underwater hot springs, spouting out clouds of metal sulphides from within the Earth. As the hot clouds cool and solidify, they create towering chimneys, known as “black smokers”. The organisms that live there are like nothing else on Earth, as they draw their energy not from the sun but from the chemicals gushing from the vents. These thriving communities live in an extreme environment – one that is dark, deep (up to 5,000m depth), hot (up to 400°C), and usually strongly acidic, yet hosts an extraordinary array of life.³³ Over 700 vent species have been discovered, and due to factors such as geographical isolation, many are unique to their particular regions or even locations. Species include giant tube worms, crabs, shrimps and fish.³⁴ On average, two new species were discovered every month for the 25 years up to 2002³⁵, and we’ve still barely scratched the surface.

The deep sea is also the largest reservoir of marine genetic resources, and is of major interest to pharmaceutical companies, a number of which already hold patents for products discovered in the deep.³⁶ Enzymes from hydrothermal vent species are estimated to have an annual commercial value of $150m US dollars.³⁷ Despite their intrinsic ecological and scientific value and their potential benefit to humankind, deep seabed mining could destroy these genetic resources before they are fully understood or even discovered³⁸ – resources that could, for example, hold cures for diseases such as cancer.

Deep seabed mining could have serious impacts on the ocean environment and the future livelihoods and wellbeing of coastal communities. Only 3% of the oceans are protected and less than 1% of the high seas⁷, making them some of the least protected places on Earth. The emerging threat of seabed mining is an urgent wake-up call: the world’s governments must act now to protect the high seas, including by creating a global network of marine reserves⁸ that will be crucial sanctuaries at sea for marine life and the ecosystems which we all rely on for our survival. An international, multi-sector approach to management and protection is needed, if we are to ensure the health and sustainable use of our oceans.

The remote deep and open oceans host a major part of the world’s biodiversity, and are vital for our survival on Earth.⁹ The deep sea plays an important role in regulating planetary processes, including regulation of temperature and greenhouse gases.¹⁰ It supports ocean life by cycling nutrients and providing habitat for a staggering array of species.

Seabed mining could cause fish mortality, due to habitat loss and a decline in food sources. For example, phosphate extraction proposed in shallow water near Namibia is expected to impact fish populations through habitat and food source removal, with mining operations set to take place within migratory routes and spawning grounds.39

Similarly, within the deep sea, mineral deposits often occur in habitats that support important and diverse fish populations. For example, cobalt-rich crusts are often located on the flanks and summits of seamounts, underwater mountains that host a great abundance of species. These include slow-growing fish species such as orange roughy, grenadiers and redfish, the status of which – in the cases where data exist – is generally considered already overexploited or depleted by deep-sea fishing.40 In cases where seamounts have been severely destroyed by bottom trawling, there has been no sign of recovery of large bottom-dwelling fauna five years after trawling stopped, highlighting the vulnerability of these communities.41 Research suggests that it will take many decades or more for seamount communities to recover from such trawling.42 Greenpeace has been calling for a ban on deep-sea bottom trawling to stop the potentially irreversible impacts of this destructive fishing practice on sensitive deep-sea habitats and species. The impacts of mining in these areas would be even more devastating to the already threatened fragile ecosystems of the deep ocean.

Seabed mining poses a major threat to our oceans. All types of seabed mining will kill whatever can’t escape the mineral extraction operations. Organisms that grow on the seabed will be smothered as a result of sediment disturbance and the discharge of waste. The current lack of scientific knowledge on the deep-sea environment, and the lack of knowledge of the technology employed, limits our ability to predict the environmental impacts of mining operations and to determine whether habitats can ever recover from the disturbance.15

We know that deep-sea species from many habitats, such as seamounts and abyssal plains, are particularly vulnerable due to their slow growth rates, their low resilience to changes in their environment, and slow recovery rates after disturbance.16 Some hydrothermal vent communities may be more resilient to impacts because of the high natural levels of turnover of these ecosystems, although this is dependent on the underlying geology and biogeography of the individual systems.17

Mining licences for hydrothermal vents have already been granted to Nautilus Minerals by the Papua New Guinean government to mine for sea floor massive sulphides in national waters 1,500 metres under the sea, despite significant environmental concerns and community opposition. A study at the mining site found 20 new species, with more species likely to be found in the future.18 The impacts on the actual mining site will be very high, but the resilience of this system is unknown, as are the effectiveness of the proposed efforts to assist natural recovery. The wider impacts of the mining operation on surrounding ecosystems are also unknown.¹⁹

Deep-sea communities live in relative silence, and in the dark. Studies have shown that deep-sea fish communicate at low sound frequencies26, and are sensitive to acoustic changes to sense food falls – the fall of organic matter that provides an important source of nutrients to the deep sea27. Whales rely on sound for communication and navigation, and when encountering increased noise, change their vocalisation patterns and behaviour, and move away to new areas.28 Studies show that baleen whales experience chronic stress when exposed to increased shipping noise.29 Low-frequency mining noise could travel far from the mining site, with one estimate suggesting that noise from the Nautilus operation near Papua New Guinea could travel up to 600km from the site.30 This could have negative impacts on deep diving whales in the area.

Mining will also introduce bright light into an environment that, but for bioluminescence, is constantly dark, impacting species that are adapted to these conditions, such as deep-sea vent shrimp, which have been shown to be blinded by the lights used by researchers.³¹

A growing number of companies and governments² – including Canada, Japan, South Korea, China and the UK – are currently rushing to claim rights to explore and exploit minerals found in and on the seabed, such as copper, manganese, cobalt and rare earth metals. There are currently 17 exploration contracts³ for the seabed that lies beyond national jurisdiction in the deep seas of the Pacific, Atlantic and Indian oceans, compared with only 8 contracts in 2010. Contract holders will be able to apply for licences to carry out commercial mining in the high seas as soon as regulations for exploitation are developed – anticipated as early as 2016.⁴ There is also significant exploration interest within national waters, particularly in the Pacific Ocean, and one licence to mine the deep seabed has already been granted in Papua New Guinean waters. However, very little is known about deep-sea habitats, or the impact that mining operations will have on ecosystems and the wider functioning of our oceans. Once thought to be relatively lifeless, scientists now recognise that the deep sea is actually a species-rich environment⁵, with many species still to be discovered. Because deep-sea species live in rarely disturbed environments and tend to be slow growing and late maturing, with some unique to their particular habitat types (such as hydrothermal vents) or even specific locations, they are highly vulnerable to disturbance or even extinction.⁶

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.

The same chemical, organic, and radiological pollutants that contaminate the ecosystems of the rest of the planet pose particular problems for the Arctic. The freezing temperatures of the Arctic, both on land and at sea, prevent pollutants from breaking down into non-toxic constituent components.20 For instance, although the Arctic nations stopped using leaded gasoline more than a decade ago, the measurable lead in fish and wildlife in the area has not declined.21 In addition to the cold, the currents which flow to the Arctic from all over the world bring as much as 60% of the pollutants ultimately sited in the Arctic from somewhere else.2 2 Thus, the failure to include non-Arctic nations in future Arctic clean-up efforts would leave the majority of incoming pollutants unaddressed.

While the Arctic suffers special harms from ordinary pollutants, the ordinary conditions of the Arctic play a special role in maintaining the global environment.2' First,the cool water of the marine Arctic plays an important role in global oceanic heat exchange, helping to keep the temperature and salinity of the tropical seas constant;24 second, the Arctic ice reflects solar energy in the form of light, further helping to cool the planet;25 third, although the Arctic is not a significant carbon sink,26 perennial Arctic ice has nevertheless trapped significant amounts of methane and carbon dioxide over the past several hundred years.27

Changes in any of these three processes have potentially major global impacts above and beyond the temperature increases generated by the underlying green- house effect. Decreased Arctic ice will result in a slower hydrological cycle, trapping heat in the tropics and the Arctic, while simultaneously mitigating the temperature effects of climate change on the North Atlantic region.28 Moreover, slower currents are less effective at transporting the evaporated freshwater that would otherwise migrate north from the tropics, creating on the one hand more severe precipitation events in the low latitudes, while on the other hand prevent- ing water vapor from traveling across continental land masses (thus resulting in droughts).2 9

Another result of melting Arctic ice is an overall rise in the global mean sea level.3° Observed increases in sea level due to Arctic melt indicate that decreases in Arctic sea ice and the Greenland ice sheet alone have already contributed a .98 ± .29 millimeter rise to global sea levels.31 Were both the Arctic and Antarctic ice to melt completely-it is difficult to imagine one without the other-the total increase in sea levels would be between seventy-five and ninety meters.32

Off-shore mining poses serious environmental hazards that are not always visible to the naked eye. For instance, drilling can cause ocean currents to change, altering the marine environment, and affecting temperatures worldwide. 10 7 It can also destroy marine habitats and their biological communities in the vicinity of hydrothermal vents.'0 8 More obviously, oil exploration, especially in the harsh conditions of the Arctic, risks oil spills into the Arctic waters. BP Exploration (Alaska), for instance, is on average responsible for an oil spill every day in its Prudhoe Bay operation.109 These spills have the effect of depleting the popula- tions of Arctic wildlife, including game animals hunted for food by indigenous Arctic peoples."110

In spite of these efforts to raise awareness of potential adverse environmental impacts, these concerns do not seem to be slowing the push for Arctic drilling and exploration.⁶⁷ In fact, "several prominent [U.S.] environmental organizations, including the Natural Resources Defense Council and the Ocean Conservancy, formed an unlikely alliance with big oil and gas to support UNCLOS."⁶⁸ This is because UNCLOS has provisions to help protect the Arctic environment.⁶⁹ Thus, even though "pursuing oil exploration in the Arctic would threaten the region's fragile ecology,"⁷⁰ environmental groups also see internationally organized territory as a way establishing a cohesive view that will prevent pollution in the Arctic.

The ice was never supposed to melt this quickly. Although climate scientists have known for some time that global warming was shrinking the percentage of the Arctic Ocean that was frozen over, few predicted so fast a thaw. In 2007, the Inter- governmental Panel on Climate Change estimated that Arctic summers would become ice free beginning in 2070. Yet more recent satellite observations have moved that date to somewhere around 2035, and even more sophisticated simulations in 2012 moved the date up to 2020. Sure enough, by the end of last summer, the portion of the Arctic Ocean covered by ice had been reduced to its smallest size since record keeping began in 1979, shrinking by 350,000 square miles (an area equal to the size of Venezuela) since the previous summer. All told, in just the past three decades, Arctic sea ice has lost half its area and three quarters of its volume.

The environment and the management of natural resources are the most pressing security issue in the North. States are committed to addressing issues of boundaries and Arctic Ocean access through existing institutions, principally UNCLOS. Large-scale damage to the Arctic environment from transportation accidents, energy development, fishing, tourism, and the long-range transport of pollutants from the South pose greater immediate threats than classic security issues. Emergency response systems and contingency plans for the North are needed to respond to possible ship disasters, industrial pollution, oil spills, etc. Such a response system is currently non-existent or not up to the task. Given the increased shipping activity in the Arctic and the lack of ports and rescue capability, the need is growing. This should be a task for the Arctic Council in cooperation with existing specialized bodies such the International Maritime Organization.

The need for large-scale ecosystem-based management regimes to pro- tect the integrity of the Arctic Ocean is receiving increasing attention, including proposals for an Arctic Treaty or Park to manage and protect the Arctic Ocean as a commons. These proposals underlie the need for a strong Arctic Council and U.S. participation in UNCLOS in order to provide institutional protection for the Arctic Ocean.

Increases in resource exploration result in increased navigation.⁵³ In addition to transportation tied directly to oil exploration, the Arctic will also become a favored route for merchants.⁵⁴

There are numerous reasons to take advantage of Arctic sea routes. Not only are they much shorter than alternate shipping routes, but they also allow companies to avoid the costs associated with utilizing canals and the threats of pirates in certain parts of the world.⁵⁵ Though the trip may be economically efficient, it is still not entirely void of danger. Scientists predict that icebergs and other hazards will continue to persist well into the future, thus increasing the danger to voyages through the Arctic region.⁵⁶

Regardless of oil spills, the animals living in the area will face changed circumstances. Ocean-bearing ships leave a significant amount of pollution behind simply by operating in the ocean.⁵⁷ In 1999, 12.5 percent of all oceanic pollution resulted from the transportation of petroleum.⁵⁸ Noise pollution is also a serious concern among environmentalists in the region.⁵⁹ If species cannot effectively communicate, scientists argue, their interactions will be limited, resulting in a less diverse and less resilient marine ecosystem.⁶⁰ Policymakers should consider this harm in relation to the special state of the Arctic ecosystem, which tends to be more sensitive to these types of external, human-caused factors.

The ecosystem of the Arctic is more susceptible to pollution than other parts of the world.²⁸ There are several factors that contribute to the Arctic’s vulnerability:

1.   Low temperatures retard the decomposition of natural and manmade substances and the breakdown of pollutants;

2.   Regeneration is a protracted process because of the short growing season;

3.   Large concentrations of animals heighten vulnerability to catastrophes;

4.   Marine areas are particularly important in the Arctic in comparison with other regions of the globe;

5.   Climatic conditions are likely to produce a more pronounced carbon dioxide-induced warming trend in the Arctic than in temperate regions and are already leading to high concentrations of air pollutants that threaten vegetation as well as human and animal life; and

6.   Severe weather and ice dynamics make environmental protection and cleanup extremely difficult.29

The intricate interactions and complex food-webs within the Arctic ecosystem make these concerns even more pronounced.³⁰ Simply put, the Arctic ecosystem is ―extremely complex.³¹ The increased navigation and resource exploration that is likely to occur raises several important concerns. Though there are problems common to both resource exploration and navigation, this Note will discuss the challenges separately.

There is also a significant problem with the generality of environmental protections in the UNCLOS. As mentioned previously, the treaty purports to regulate activity in all of the world’s oceans.136 It does not, therefore, deal explicitly with the very unique problems facing the Arctic environment.137 Unless the international community recognizes the region’s special needs, its natural environment will continue to worsen and become even more difficult to restore.

As we have testified elsewhere, the most compelling reasons that support U.S. adherence to the Convention are rooted in restoring U.S. oceans leadership, protecting national interests and enhancing U.S. foreign policy. For example, if the convention is ratified, the United States will be in a stronger position to respond to illegal oceans claims such as the harassment of the USNS Bowditch survey vessel by the People's Republic of China (PRC). The United States will also be able to advance more rapidly with offshore oil and gas development beyond 200 nautical miles (approximately 15 percent of our continental shelf), require U.S. approval for the transfer of seabed revenues and reclaim the prime deep seabed mining sites it has abandoned. Further, adhering to the convention will finally give the United States an opportunity to officially declare its views as to the correct operation of convention provisions. This will end over a decade of self-imposed silence despite efforts by extremist opponents to roll back the gains achieved in the convention.

Critics claim that the United States does not need to ratify the treaty because it already carries the force of customary international law. However, this position is viewed with skepticism by U.S. allies and open defiance by potential adversaries. Beijing, for example, has repeatedly challenged the legal right of the United States and other countries to maintain an offshore naval presence in the region's inner seas, such as the Yellow Sea and South China Sea, and China's own 200-mile exclusive economic zone. And Chinese military power, from its advanced ballistic missile program to its quickly expanding blue-water navy, raises the possibility that the new global center of power could be controlled by China.

But the Law of the Sea protects the freedom of navigation of the United States and other countries with the imprimatur of international law. The Convention was completed in 1982, and it establishes the right of naval forces to innocent passage in foreign territorial seas and the right to conduct all offshore military operations-including air and submarine operations beyond 12 nautical miles from the shore-all without seeking permission or providing advance notice or reports to any country. The treaty can thus help prevent China from standing between the United States and its treaty allies Japan, South Korea, and Australia, as well as its new strategic partners, such as India and Vietnam.

Japan, for example, is the cornerstone of U.S. interests in stability and security in the region, and is home to the forward-deployed U.S. Seventh Fleet. As the importance of the Pacific theater grows, American ships and aircraft require freedom of the seas to conduct ballistic missile-defense operations against North Korea, reassure allies that the United States is engaged in the region, or respond to another major humanitarian crisis like the 2004 tsunami.

Additionally, ratification of the Convention will soften the United States’ image and signal much needed goodwill to the international community.¹¹⁰ It has been noted that “[a]nti-Americanism has increased in recent years, and the U.S.’ soft power—its ability to attract others by the legitimacy of U.S. policies and the values that underlie them—is in decline as a result.”¹¹¹ Commitment to the Convention, which engages much of the international community, would be emphasized by U.S. ratification.¹¹² It also allows other states to place their trust in the U.S. and thus its actions on the seas. This is essential for the United States to maintain its legitimacy and ultimate leverage in the international arena.¹¹³

Perhaps most important of all, ratification would prove to be a diplomatic triumph. American power is defined not simply by economic and military might, but by ideals, leadership, strategic vision and international credibility.

Of course, there are those who would prefer that we have nothing to do with the United Nations, who believe that international treaties hurt our national interests and restrain our foreign policy objectives.

All three of us have struggled while working with and through international organizations — they are unwieldy and not always responsive to American interests. But as we see in Libya today, the United Nations and other international alliances are indispensable in providing legitimacy and reinvigorating American partnerships in times of crisis. And they will ensure needed balance as rising powers inevitably challenge America’s economic and military strength.

Last July, Secretary of State Hillary Rodham Clinton gained much respect by reassuring the Southeast Asian nations that the United States strongly supported multilateral efforts to address those territorial disputes in the South China Sea, and denounced China’s heavy-handed, unilateral tactics. But strong American positions like that are ultimately undermined by our failure to ratify the convention; it shows we are not really committed to a clear legal regime for the seas. 

For all of these reasons, ratification is more important today than ever before. At a time when America’s military and economic strengths are tested, we must lead on the seas as well as on land.

As a natural corollary, the accession to the LOS Convention will provide the US access to the Convention‘s procedural mechanisms and institutions. This access is necessary for the US to secure and advance its national interests in the ocean space and play a meaningful role in the implementation of the law of the sea in the contemporary world. Firstly, accession to the LOS Convention will provide US a seat in the Commission on the Limits of the Continental Shelf (CLCS Commission), which in turn will help US to secure and advance its claim for the extended continental shelf beyond 200 nautical miles. Secondly, the US will have access to the International Sea-bed Authority (ISBA Authority) decision-making process as the member of its Council. This will help the US to protect its interests in the deep sea-bed mining activities. Thirdly, the US will get a seat in the judicial body - International Tribunal for the law of the Sea (ITLOS). This will facilitate US active participation in the judicial dispute settlement concerning ocean matters related to the interpretation or/and application of the LOS Convention. Broadly, the access to the UNCLOS-related institutions will provide an opportunity to the US to play an active role in the implementation and development of the law of the sea in the contemporary world.

Assistant Secretary of State John F. Turner cited the urgency for accession at the outset of his testimony: “there are important reasons for the United States to become a party to this Convention and to do so now.”⁶⁷ Not surprisingly, the State Department highlighted accession as a means of maintaining U.S. leadership in global matters; contributing to the ongoing evolution of international law-making; and supporting peaceful methods of international dispute resolution. In an effort to perhaps illustrate the dwindling opportunity to portray the United States as being at the forefront, Turner explained, “as of today, 143 parties, including most of our major allies, have joined the Convention. It is time for us to take the opportunity to demonstrate U.S. leadership on ocean issues by becoming a party to the Law of the Sea Convention.”⁶⁸

The United States has historically been the world leader in protecting the common interest in navigational freedom and the rule of the law in the oceans. However, America has temporarily lost that leadership by its continued non-adherence to UNCLOS. U.S. accession to the Convention will restore that role and advance U.S. leadership in Arctic Ocean issues.

Joining UNCLOS will put the United States on an even footing with the other Arctic nations, as America assumes the chairmanship of the Arctic Council from Canada in 2015. All of the Council’s member States (except the United States) and its 12 observer States are parties to the Convention. Moreover, in 2008, the five Arctic coastal States (Canada, Denmark, Russia, Norway and the United States) declared at Ilulissat that the law of the sea, as reflected in UNCLOS, is the legal framework that governs the Arctic Ocean, and there is no need for a new legal regime to govern the Arctic Ocean.⁵³ Therefore, U.S. participation in the Arctic Council recognizes UNCLOS as the governing framework in the Arctic

UNCLOS would also greatly enhance the global leadership position ofthe United States in maritime affairs, an area in which the Coast Guard has long played a vital role. Many states have excessive claims with respect to baselines, historic bays, territorial seas, straits, and navigational restrictions which, in the opinion of many, are not permissible under the Convention. As a non-party, our ability to seek to roll back these excessive claims is severely inhibited. Failure to accede to UNCLOS will materially interfere with our ability to engage with other states to improve maritime governance, a maj or part of the Coast Guard's current strategy for maritime safety, security, and stewardship. Our non-party status is an obstacle that we must overcome in developing virtually any new multilateral maritime instrument. For example, several key states whom we want to join the Proliferation Security Initiative (PSI) often question our non-party status. Likewise, while the United States has long played a key role in the International Maritime Organization (IMO) to promote maritime safety and efficiency and to protect the marine environment, our leadership position is being undermined by our current outsider status.

As a non-party, the United States has no "seat at the table" in virtually all matters concerning the Convention. The United States does not have a judge on the Law of the Sea Tribunal nor a decision-maker or staff experts on the Continental Shelf Committee. And despite the fact that the 1994 "Part XI Implementation Agreement" guarantees the United States a permanent seat on the International Seabed Authority (ISA) and a veto on all key decisions of that body, as a non-party, we cannot play that critical role. In article after article, UNCLOS reflects diplomatic victory after victory for the United States. However, as a non-party, we cannot take advantage of these benefits. One of the key reasons that the congressionally mandated U.S. Commission on Ocean Policy has consistently and unanimously called for the United States to accede to the Convention was to regain its ocean policy leadership position.

The “Preeminent Global Power.” The tenth, and final, factor bearing upon the Clinton administration’s decision to sign the Agreement and recommend accession to the Convention was its desire for the nation to retain leadership in maritime affairs generally. Rear Admiral Sehachte went so far as to say that “as the preeminent global power in the 1990s and beyond, the United States is uniquely positioned to assume a more visible leadership role in achieving a widely accepted international order to regulate and safeguard the many and diverse activities and interests regarding the world’s oceans."⁶⁰

The Clinton administration realized that US. refusal to accede to a Convention widely regarded as one of the most important international agreements ever negotiated would raise fundamen tal questions regarding not only the future legal regime applicable to the world's oceans but also the overall role of the United States. By actively promoting “leadership for peace” in the politically and economically important matter of rationalizing maritime laws and regulations, the United States hoped to be able to ensure itself a major role in shaping a posthegemonic global order.⁶¹ Conversely, the White House recognized that if the United States remained outside the Convention, it would not be in a position to influence the treaty’s further development and interpretation, transition, and refinement.⁶² More broadly, continued mute opposition seemed likely not only to jeopardize important national interests in the law of the sea but also to be seen as an implicit rejection ofthe very goal ofworld order through international law. In even less charitable eyes, it might be construed as a belief that unilateralism is a viable policy when backed by military force.⁶³ It appeared that full participation in the Convention offered an opportunity to exercise world leadership in a context far broader than had been possible during the Cold War.

United States allies, almost all of whom are parties to the Convention, would welcome U.S. adherence as a sign of a more effective United States foreign policy. For some years I have chaired the United Nations Advisory Panel of the Amerasinghe Memorial Fellowship on the Law of the Sea in which the participants on the Committee are Permanent Representatives to the United Nations from many countries. Every year our friends and allies ask when we will ratify the Convention, and they express to me their puzzlement as to why we have not acted sooner. In my work around the world in the oceans area I hear this over and over – our friends and allies with powerful common interests in the oceans are astounded and disheartened by the unilateral disengagement from oceans affairs that our non-adherence represents;

Efforts to renegotiate other unacceptable treaties would receive a boost when an important argument now used by other nations against such renegotiation with us is removed. This argument now used against us, for example, in the currently unacceptable International Criminal Court setting, is: “[W]hy renegotiate with the United States when the LOS renegotiation shows the U.S. won’t accept the Convention even if you renegotiate with them and meet all their concerns?” Let me emphasize this point. The United States will be severely damaged in its international engagement if other nations believe that we will not adhere to agreements, whether they are in our interest or not. And this is particularly true after other nations accommodate the United States in all that it asks in a renegotiation and then see United States inaction toward the renegotiated agreement. If we are to maintain our negotiating leverage we must demonstrate that we distinguish between good and bad international agreements and that we accept the good while rejecting the bad; finally

The shipping standards negotiated at the IMO are the fabric of the port state control regime that is underpinned by the Convention. It is the Convention that sets forth the responsibilities of flag states, port states, and coastal states for shipping, and the Convention is the agreement that holds nations accountable for adhering to those responsibilities. Because of the currently anomalous situation where the United States is a party to the substantive IMO standards, but not the underlying legal framework of the Convention, our ability to ensure comprehensive global accountability demanded by the port state control framework is weakened. Acceding to the Convention would strengthen Coast Guard negotiation efforts at the IMO, where we lead in the continued development of these important international standards. Although other countries look to us for leadership, there is growing skepticism for certain U.S. negotiating positions because the United States is not a party to the Convention. Becoming party to the Convention would increase the Coast Guard’s credibility as a leader at IMO and result in greater effectiveness in ensuring that U.S. interests are reflected in the standards that are ultimately adopted. The Coast Guard needs the Convention to better promote United States safety, security, and environmental interests at the IMO.