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Council Special Report No. 46

May 2009

Scott G. Borgerson

The National

Interest and theLaw of the Sea


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The National Interest

and the Law o the Sea


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Council Special Report No. 46May 2009

Scott G. Borgerson

The National Interestand the Law o the Sea


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Forewor vii Acknowlegments ix

Council Special Report 1Introduction 3Background and Context 6Oceans and National Interests 14Strategic Imperatives 22Conclusions and Recommendations 36

Appenixes 41Ennotes 60

Abot the Athor 63 Avisory Committee 64IIGG Mission Statement 65

Contents


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The oceans have long been a critical arena or international relations.Beore there was air travel and instantaneous communication, people,

goods, and ideas traveled the world by ship. For centuries a strong mari-time presenceboth military and commercialhas been essential orstates with great power aspirations. Today, even with advances in tech-nology, seaborne commerce remains the linchpin o the global econ-omy. As the International Maritime Organization reports, more than90 percent o global trade is carried by sea. And beyond trade, a hosto other issues, ranging rom climate change and energy to deense andpiracy, ensure that the oceans will hold considerable strategic interest

well into the uture.In this Council Special Report, Scott G. Borgerson explores an

important element o the maritime policy regime: the United NationsConvention on the Law o the Sea. He examines the international nego-tiations that led to the convention, as well as the history o debates inthe United States over whether to join it. He then analyzes the strategicimportance o the oceans or U.S. oreign policy today. The report ulti-mately makes a strong case or the United States to accede to the Con-

vention on the Law o the Sea, contending that doing so would benetU.S. national security as well as Americas economic and environmen-tal interests. Among other things, the report argues, accession to theconvention would secure rights or U.S. commercial and naval ships,boost the competitiveness o American rms in activities at sea, andincrease U.S. infuence in important policy decisions, such as adjudi-cations o national claims to potentially resource-rich sections o thecontinental shel.

The National Interest an the Law o the Sea oers a combination o

historical, legal, and strategic analysis. It illustrates how much o whatthe United States seeks to do in the worldbe it deploying military

Foreword


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orces abroad or ensuring adequate supplies o energydepends inlarge measure on the sea. The result is an important contribution on aset o issues that has been central to national power and oreign policyor centuries.

Richard N. HaassPresientCouncil on Foreign RelationsMay 2009

Foreword


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ix

I am deeply grateul to the ollowing people or helping me produce thisreport: John Temple Swing, Caitlyn Antrim, and Matthew Tinning o

the Ocean Conservancy. They made signicant and substantive con-tributions. Brian Donegan also deserves special mention or cratingwhole sections and helping in all acets o the reports composition.His name deserves to be on the cover as much as mine. O course, Ialone accept ull responsibility or this document and any shortcom-ings or omissions.

I am also indebted to Ambassador Thomas R. Pickering, who chairedthe advisory committee. He and the committee provided invaluable

wisdom throughout the drating process. This report also benetedimmeasurably rom the help o the ollowing CFR sta: Patricia Dorand Lia Norton in Publications, Kaysie Brown in the International Insti-tutions and Global Governance program, Sasha Polakow-Suransky inForeign Aairs, and Melanie Gervacio Lin and my research associateErika Wool in the Studies Program.

This publication and my ellowship were made possible by the gen-erous support o the Robina Foundation and the International Institu-

tions and Global Governance program. I am especially grateul to theprograms director, Stewart M. Patrick, or his support. I am honored toin some small way be part o the programs important work.

Scott G. Borgerson

Acknowledgments


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Concil Special Report


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3

Introduction

The 1982 Convention on the Law o the Seathe instrument that cre-ated the overarching governance ramework or nearly three-quarters

o the earths surace and what lies above and beneath ithas beensigned and ratied by 156 countries and the European Community, butnot by the United States. The Law o the Sea Convention, with annexes(hereater in this report reerred to as the convention),and the 1994agreement on its implementation have been in orce or more than adecade, but while the United States treats most parts o the conven-tion as customary international law, it remains among only a handul ocountriesand one o an even smaller number with coastlines, includ-

ing Syria, North Korea, and Iranto have signed but not yet acceded tothe treaty.

President Bill Clinton submitted the Law o the Sea Convention tothe Senate or its approval in 1994, but despite numerous congressio-nal hearings and even though the Senate Foreign Relations Commit-tee (SFRC) twice recommended that the Senate give its consent, theconvention has yet to make it to the Senate foor. The convention actu-ally enjoys broad bipartisan support in Congress; has been endorsed by

both the Clinton and George W. Bush administrations; is championedby the Joints Chies o Sta; and has been recommended by a wide arrayo interest groups in the United States, including the oremost nationalsecurity, commercial, and environmental organizations. Still, largelybecause o the threat o a libuster rom a vocal opposition, the conven-tion has yet to receive a ull Senate vote.

With last Novembers elections, the convention is once more inthe news. The political balance o power has shited in Washington,making the prospects o Senate approval likely. President Barack

Obama, both during his tenure in the Senate and while on the campaigntrail, expressed enthusiastic support or the convention. Vice PresidentJoseph R. Biden Jr. was chairman o the SFRC when the convention


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4 The National Interest and the Law o the Sea

was last recommended or approval in 2007, and Senator John Kerry(D-MA), the new chairman, strongly supports it, as does Senator Rich-ard G. Lugar (R-IN), the committees ranking Republican. During herconrmation hearings, Secretary o State Hillary Clinton stressed thatgetting the convention through the Senate would be a top priority orher State Department. And in February 2009, with Alaska governorSarah Palins backing, the National Governors Association came outstrongly in support o the United States joining the treaty.

The convention is also getting a close look as a result o recent events,perhaps the most dramatic being a serious conrontation in March2009 between U.S. and Chinese naval ships and Somali pirates taking

a U.S. ship captain hostage in April. Piracy is growing exponentially oSomalias coast and is threatening strategic shipping lanes. The polar icecap, melting ast and on pace to be seasonally ice ree by 2013, is drawingattention as well; the relatively pristine Arctic Ocean is becoming opento shing, international shipping, and the development o an estimated22 percent o the worlds remaining undiscovered but technically recov-erable hydrocarbon reserves. There is a growing list o other emergingsecurity, economic, and environmental maritime issues with important

strategic implications or U.S. oreign policy, such as the rise o newnaval powers like China and India, the delineation o vast amounts oocean space on the outer continental shel (OCS), and new commercialopportunities like deep-seabed mining. All o this is causing Washing-ton to reconsider and reexamine the convention.

In many ways, the arguments surrounding the treaty are emblem-atic o the broader debate about the role o U.S. diplomacy in the post-9/11 world. Skeptics o the convention believe it is not needed, given

the hegemonic strength o the U.S. Navy. And, they ask, why does theUnited States need to join this international agreement i it has gottenalong ne so ar without it? They also worry that the United States willundermine its sovereignty by incurring additional treaty obligations tointernational bodies established within the United Nations system. Ina ast-changing world, with new threats conronting the United Statesall the time, this camp holds that the United States needs to be able torespond as nimbly as possible, unencumbered by lengthy legal conven-tions that might restrict its reedom o action.

Supporters o the convention counter that the principles embodiedin the treaty are the cornerstone o U.S. naval strategy and create therule o law or prosecuting pirates and the growing number o other


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5Introduction

threatening nonstate actors. They argue that the convention is impor-tant or economic reasons as well, as it creates legal certainty or all kindso commercial ocean uses, rom oshore oil and gas to undersea cablesto deep-seabed mining, that avor U.S. interests. They also argue, roman ecological perspective, that the convention helps the United Statesassume a leadership position or dealing with collapsing shing stocks,pollution rom land-based sources and ships, and the growing danger oocean waste. Convention advocates highlight how oceans are, by theirvery nature, international and thus require a regime o international lawand collaborative approaches to their management. They point to the1995 UN Fish Stocks Agreement as a prime example o how a careully

constructed international accord negotiated within the ramework othe convention can provide or a legally binding conservation regime.Recognizing the utility o this specic sheries management tool, theUnited States rapidly ratied this additional instrument as soon as itwas possible to do so in 1996. Lastly, supporters ask that i the UnitedStates is not willing to accede to a convention that it requested, unda-mentally shaped, and subsequently caused to be modied in order toaddress its own concerns, then why in a multipolar world should other

countries ollow its diplomatic leadership? In such a context, how willexpressions o U.S. commitments to the rule o law abroad be heard?

This report will ully examine both sides o the accession debate: thewisdom o maintaining current U.S. policy o relying on large parts othe convention as customary international law versus now ociallyjoining the 1982 Convention on the Law o the Sea. It will outline thecosts and benets that would come rom the Senate giving its consentto the convention. It will examine all the oreign policy dimensions o

joining or not joining the convention, which are urther elaborated ingreater legal detail in Appendix I, and the strategic imperative o onecourse o action over another.

Given the extraordinary scope o the convention and the possibil-ity o U.S. accession early in the Obama administration, this report isintended to give a resh appraisal o this complex and lengthy interna-tional agreement in light o the current geopolitical seascape, and toweigh whether it is in U.S. strategic interests to nally join.


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6

The 1982 Convention on the Law o the Sea is not a new construct;rather, it is the product o centuries o practice, three UN conerences

(1958, 1960, and 19731982), and a subsequent agreement on imple-mentation, negotiated rom 1990 to 1994. Nor is the convention a newissue or the U.S. Senate. In orce since 1994, the convention has beenawaiting review since its transmission to the Senate by President Clin-ton in 1994. For a decade and a hal the convention has been pendingSenate approval and has been the subject o debate between a broadbipartisan constituency actively working toward accession and a vocalminority blocking legislative action in the belie that it would burden

the United States with additional international commitments. Beoreexamining these viewpoints in light o U.S. strategic interests today, itis useul to understand the principal tenets o the convention and itshistorical context.

BR IEF H ISTORY OF THE L AW OF T HE SEA,FROM HugO gROTIuS TO T ODAY

Creating an international ocean governance ramework has its roots insixteenth-century European imperialism. As states increasingly com-peted or trade routes and territory, two theories o ocean use collidedhead-on. On one side, Spain and Portugal claimed national ownershipo vast areas o ocean space, including the Gul o Mexico and the entireAtlantic Ocean, which the Catholic Church declared should be dividedbetween them. Opposed to this were the proponents o reedom o theseas, a theory o vital concern to the great trading rms like the Dutch

East India Company. Since no nation could really enorce claims to suchenormous areas, and given the need o all the rising colonial powers tohave assured access to their overseas territories, it is not surprising that

Background and Context


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Unilateral extensions were also o growing concern to the worldsmajor maritime powers, particularly the United States and the SovietUnion. As more and more coastal states started claiming territorial seasbroader than three miles (in several cases, as much as twelve miles, but insome, particularly in Latin America, ar beyond), the maritime nationseared that their reedom o navigation on, over, and under critical por-tions o the worlds oceans might be severely curtailed. They were par-ticularly concerned that they would lose their high-seas reedoms in the116 straits, including those o Malacca, Dover, Gibraltar, and Hormuz,that, at their narrowest point, were more than six miles but less thantwenty-our miles in width. I these 116 straits became territorial seas,

the rules o innocent passage would require, or example, that subma-rines operate on the surace, not submerged, and that overfight by air-crat be prohibited without the prior consent o the coastal state.

The maritime nations did their best but ailed to cap these extensionsin two UN conerencesthe rst in 1958, and the second in 1960theresults o which were never widely accepted. By the mid-1960s, theywere eager to try again, and they lent their weight to the growing callsor a new UN conerence on the law o the sea. Their calls were not

the only ones. Many developing nations in the Third World were con-cerned about preserving international rights to nonliving resourcesbeyond the limits o national jurisdiction. In 1967, these concerns werecrystallized in a remarkable speech beore the General Assembly byArvid Pardo, then the Maltese delegate. Pardo was viewed sympatheti-cally throughout much o the world when he asked the UN to declarethe seabed and the ocean foor underlying the seas beyond the limits opresent national jurisdiction to be the common heritage o mankind

and not subject to appropriation by any nation or its sole use. He urgedthe creation o a new kind o international agency that, acting as trusteeor all countries, would assume jurisdiction over the seabed and super-vise the development and recovery o its resources or the benet o allmankind, with the net proceeds to be used primarily to promote thedevelopment o the poorer countries o the world.

Developing countries liked the idea or several reasons. First, sincethe value o the resources was then believed to be considerable, somethought it would lead to substantial development assistance or the

poorest countries. Second, it gave developing countries a chance tobecome partners in, rather than subjects o, resource development.Developed countries also liked the prospect o a source o development


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that would be eective against the urther-seaward claims o coastalstates. At the same time, the United States wanted to ensure access tothe deep seabed or U.S.-based companies on reasonable terms andconditions that would oer the prospect o a air prot in the light othe technical diculties to be surmounted and the large capital invest-ments required or development.

How well did the United States are during the nearly ten years onegotiations that ollowed? Most observers believe that, as a whole,the convention met U.S. objectives reasonably well, even though theReagan administration, which came to power in 1981, concluded thatdeects o the design or a seabed regime would prevent President

Ronald Reagan rom signing the nal convention. Certainly, on thesovereignty side, the nal Convention on the Law o the Sea met everysignicant U.S. objective.

Most important o all, the breadth o the territorial sea was cappedat twelve miles, while a new transit passage regime was created that, orall practical purposes, preserved reedom o navigation and overfighto the international straits. High-seas reedoms were also preservedin the three newly created jurisdictional zones beyond the twelve-mile

territorial sea: the contiguous zone out to twenty-our miles, where acoastal state could enorce customs and immigration laws; the 188-mileexclusive economic zone (EEZ), which carried the coastal states juris-diction over living and nonliving resources out to a total o two hundredmiles; and the new archipelagic zones, which otherwise would havebecome internal waters o archipelagic states such as Indonesia and thePhilippines, placing signicant restrictions on navigation reedomspreviously enjoyed in these areas. The convention also established pro-

cedures or extending coastal-state jurisdiction over areas o continen-tal shel beyond two hundred miles.On the environmental ront, the United States scored several impor-

tant victories. It got the conerence to agree to international standardsor vessel-source pollution. There would be only one set o standards,worldwide, with which all vessels would have to comply. At the sametime, the conerence agreed to maintain the traditional right o portstates to enact and enorce standards higher than the international onesor vessels entering their harbors. That was important to the United

States, since an estimated 90 percent o all shipping o U.S. coasts ison its way to or rom American seaports.


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11Background and Context

The Reagan administration thought that, by and large, the conven-tion had gotten it right. Indeed, it later declared that the United Stateswould voluntarily abide by all non-seabed parts o the convention.The Reagan administrations objections were directed mainly at thedeep-seabed side o the negotiationsthe design o and the powersto be given to the new regime or governance o the mineral resource

recovery in the area beyond national jurisdictions. The philosophi-cal argument was that the United States should be able to go where itwanted and take what it wanted on a rst come, rst served basis.President Reagan would have preerred no regime at all governing theinternational seabed, but he realized that this was a ait accompli giventhe late stages o the negotiations. In the end, the Reagan administra-tion declared it could accept Part XI only i certain changes were madein six areas having to do with matters like technology transer, and ithe United States preserved a de acto veto power in the governing

organs o the new authority so that no nancial obligations could beimposed on the United States without its consent. When these changes

Sorce: The Commaners Hanbook on the Law o Naval Operations, www.nwc.navy.mil/cnws/ild/

documents/1-14M_(Jul_2007)_(NWP).pd.

LEGAL BOuNdARIES OF THE OCEANS ANd AIRSPACE


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were not made by 1982, the Reagan administration reused to sign theconvention.

All six o the Reagan administrations objections were xed to thesatisaction o the United States in a subsequent supplemental agree-ment that was negotiated and signed by most states, including theUnited States, in 1994. By now, it has been adopted and ratied by mosto the original signatories to the 1982 convention.

BR IEF H ISTORY OF THE L AW OF T HE SEAIN T HE SENATE

On July 29, 1994, President Bill Clinton signed the Agreement on theImplementation o Part XI o the Convention on the Law o the Sea.He sent the agreement, along with the 1982 convention, to the Senateon October 7, 1994 (Appendix II). The ollowing month, Republicanswon control o the Senate, and in January 1995, Senator Jesse Helms(R-NC) became chairman o the Senate Foreign Relations Committee.Worried that the convention had not been xed and that it sacriced

U.S. sovereignty, Senator Helms reused to hold committee hearings.In 2003, Senator Richard Lugar succeeded Helms as chairman and,

with the encouragement o the Bush administration, put the conven-tion on the SFRC agenda. Senator Lugar held hearings, beginningwith public witnesses and ollowed by government and industry wit-nesses a week later. In 2004, additional public hearings were held by theArmed Services Committee and the Committee on Environment andPublic Works. A closed hearing was held by the Select Committee on

Intelligence, which determined that joining the convention would notadversely aect U.S. intelligence activities. The SFRC prepared a dratresolution o advice and consent, and recommended Senate approvalby a unanimous recommendation. The convention was sent to the ullSenate, only to be delayed when then Senate majority leader WilliamFrist (R-TN) did not bring it to the foor or a vote.

Senator Frist declined to run or reelection in 2006, and the Demo-crats won a majority in the midterm elections. With Senator Harry Reid(D-NV) as majority leader and Senator Joseph Biden (D-DE) taking

over as chair o the SFRC, prospects or approval o the conventionbrightened. Letters o support rom National Security Adviser StephenHadley and President Bush gave urther impetus (see Appendix II).


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13Background and Context

However, Chairman Biden and the next ranking committee member,Senator Christopher Dodd (D-CT), were actively campaigning orthe Democratic presidential nomination, and little progress was madeduring the early 2007 session o Congress. Eventually, testimony wastaken during all hearings, and the SFRC received letters rom the chairand ranking member o the Armed Services Committee and the SelectCommittee on Intelligence, rearming their prior support o the con-vention. On October 31, 2007, the SFRC again approved the conven-tion by a vote o 174, and the ocial report and recommendation orapproval were submitted to the ull Senate in December.

By the late autumn o 2007, the convention had become a small but

notable issue in the Republican presidential campaign. Senator JohnMcCain (R-AZ), who had a decadelong history o supporting the treaty,changed his position and opposed the convention. By early 2008, theheat o the presidential campaign brought progress on the conventionto a halt. Then, ollowing the election, the Senates attention was takenby the growing economic crisis, precluding consideration o the con-vention during the lame-duck session.

Under Senate rules, treaties must be reconsidered by the SFRC in

each new Congress. While the committee must begin the process again,it will be able to draw upon the extensive hearings held in 2003, 2004,and 2007 to inorm its next review.


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14

Oceans cover nearly three-quarters o the earth and have a prooundsignicance to U.S. national security, yet they are oten overlooked.

Hal the worlds population lives within ty miles o a coast (and 10percent live within six miles). The oceans are marine highways, carry-ing 90 percent o U.S. imports and exports, and most o the worlds oilpasses through shipping choke points such as the Suez Canal and theStraits o Malacca. The oceans are a theater o confict, a space in whichtraditional navies extend sovereign power, and a rontier where pirates,drug trackers, and human smugglers prolierate. In peacetime, theability o U.S. orces to navigate and overfy the oceans is a critical

deterrent to confict. The Law o the Sea Convention addresses all theseissues and also includes articles covering traditional geostrategic con-cerns, such as naval mobility and maintaining what the early-twentieth-century American naval theorist Admiral Alred Thayer Mahan calledsea lanes o communication, the lielines o the U.S. economy. It is byway o the oceans that the United States is able to conduct internationaltrade and project military power abroad.

From a maritime perspective, the United States is an island. Com-

mercial shipping is what carries the world to America and America tothe world. Reverberations rom Iranian naval provocations in the Straito Hormuz in 2008 and recent piracy in the Indian Ocean o Somaliascoast demonstrate just how critical it is to keep shipping lanes open.That is nothing new. The oceans have always gured prominently inAmerican history, dating back to the earliest days when maritime linksbound the colonies to the British Empire. Following independence,maritime issues were actors in almost every major diplomatic event,including the 17981800 quasi-war with France, which was essentially

a naval contest; the beginnings o the U.S. Navy combatting Barbarypirates in the Mediterranean; and the Chesapeake-Leopar aair, whichhelped spark the War o 1812.

Oceans and National Interests


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15Oceans and National Interests

The list o other important maritime events in American history isa long one: or example, the repercussions o the North blockading theSouth during the Civil War; the sinking o the USS Maine on the eveo the Spanish-American War; the Great White Fleet announcing theUnited States as a world power; the maritime provisions o WoodrowWilsons League o Nations and the naval treaties o the 1920s; the 1940destroyers-or-bases agreement that sent ty U.S. destroyers to Brit-ain or use in World War II in exchange or land rights to British pos-sessions; liberty ships, the now ubiquitous maritime containers (a U.S.invention); and undersea communication cables, to name but a ew.The oceans have been central to the American experience, whether as

an arena or combat and struggle, as an avenue or the fow o commerceand people, as a source o shing and resources, or as a wellspring oinspiration and challenge or Americans since the nations beginning.The oceans have served both as a moat, shielding a rising power romoreign adversaries, and as a bridge, linking the United States to thewider world. The oceans undergird international relations and havebeen central to the making o U.S. oreign policy.

The oceans are vital to U.S. national interests or reasons beyond

traditional national security. They shape the planets weather and cli-mate. Oceans redistribute heat rom the tropics to cooler regions (e.g.,western Europe), which prooundly aects the habitability o thoselands. They serve as massive sinks or carbon dioxide (CO

) emissions,

thereby slowing global warming. However, they are in a dire environ-mental predicament because, since they absorb CO

, they are rapidly

becoming more acidic, making the marine environment less hospitableto the ecosystems that humankind depends upon. Dramatic human-

caused increases in nutrient elements (nitrogen, phosphorous, iron,etc.) that enter the oceans via rivers and air currents; the physical altera-tion o coastal and marine ecosystems rom development and seafoor-disturbing activities; and the introduction o alien marine species intonew habitats all have proound eects on marine ecosystems that arecrucial to U.S. national security interests.

And then there is shing, the greatest threat to the oceans ecosystem.From the early days o the cod shery that supported New England anded Europe to todays $14 billion industry, commercial shing is impor-

tant to the U.S. economy. The oceans, however, have now been shedto dangerously low levels and are at a tipping point, beyond which manysh stocks might not rebound. In just the last hal century, sh, which


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were previously thought o as an inexhaustible resource, have beenreduced to alarmingly low levels. According to scientic studies, 90 per-cent o large predatory sh are now gone. No sh stocks in the worldhave been let underdeveloped; nearly hal have been ully exploited,about one-third have been overexploited, and about one-quarter aredeemed to have crashed. More than a billion people depend on shas their major source o protein, and a collapse in global shing stockswould not only aect an important sector o the U.S. economy but alsocreate conditions that would exacerbate existing political tensions incountries like Bangladesh, Indonesia, and the Philippines to the detri-ment o U.S. interests.

As a result o these threats to the oceans and marine species and eco-systems, the United States is being conronted by new maritime chal-lenges. The ability to conduct marine scientic research throughout theoceans to better understand and respond to these challenges is crucial.The rapid degradation o the worlds coral rees, population explosionso jellysh, and toxic phytoplankton blooms are signs o mismanage-ment that hint at unprecedented ocean environmental changes inimicalto U.S. interests. For example, the Arctics sea ice is melting rapidly and

is opening this relatively pristine region to shing, international ship-ping, and the development o nearly a quarter o the worlds remainingundiscovered but technically recoverable hydrocarbon reserves.

The oceans should be thought o rom an interdisciplinary perspec-tive. They are more than a place o recreation; ocean issues include seri-ous challenges or policymakers and real implications or U.S. nationalsecurity. The oceans are vast, and the issues involved are so numerousthat they do not t neatly into any single ocials inbox. There is no

ocean czar, nor, or that matter, is any senior ocial on the NationalSecurity Council (NSC) charged with overseeing ocean issues solely(although there is an NSC maritime policy coordinating committee).Ocean issues all under the purview o the departments o Deense,State, Commerce, Homeland Security, Transportation, and Treasury,among others, as well as under the Council on Environmental Qual-ity, the Oce o Science and Technology Policy, and the authority onumerous congressional committees. Important to all but owned by noone, oceans and the policies aecting them have been adrit without a

senior champion with the presidents ear. That is a proound weaknessin U.S. governance, because ocean issues are critical to the countrysnational interests and central to U.S. oreign policy.


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ARguMEN TS FOR AN D AgAINSTTHE LAW OF THE SEA CONvEN TION

Discussions o the convention should take into account the oceanshistoric importance to U.S. national interests as well as maritime chal-lenges acing the country today. Whether the convention expands therule o law or sacrices sovereignty is the question at the heart o theaccession debate.

Opponents o the convention argue that there is no need to join thetreaty because, with the worlds hegemonic navy, the United States cantreat the parts o the convention it likes as customary international law,

ollowing the conventions guidelines when it suits American inter-ests and pursuing a unilateral course o action when it does not. Theyalso argue that the convention is an unorgivable oreiture o U.S.sovereignty to states that mean American interests harm. Supporterscounter by saying that the convention expands the rule o law over thevast expanse o the worlds oceans and contains provisions that couldactually extend U.S. sovereignty. They also believe that shunning theconvention is a tone-dea response to the spirit o multilateralism and

that, beyond undermining specic ocean policy issues and reezing theUnited States out o the conventions decision-making bodies, it tar-nishes Americas diplomatic reputation at a critical moment in interna-tional relations.

Debating the wisdom o whether to enter into international agree-ments is as old as the nation itsel. Stung by the controversy over the1794 Jay Treaty and the emergence o bitter partisanship betweenanglophile Federalists and rancophile Democratic-Republicans (who

elt the United States betrayed its French midwie when negotiatingwith the British in light o the 1778 treaties o Amity and Commerce),George Washington warned in his 1796 arewell address against per-manent alliances. In the centuries that ollowed, two distinct campsemerged in the American oreign policy tradition: one was isolation-ist, seeking to hide behind the Monroe Doctrine and remain aloo romcorrupt, European deal-making; the other was more internationalist,seeking a more active United States in world aairs. Debates or andagainst the convention roughly t within these two categories.

Proponents o the convention, who can be assumed to includealmost all Democrats and moderate Republicans (by most accounts, alarge enough bloc to achieve a two-thirds majority, as required by the


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Constitution or the United States to join the convention), have beenrustrated to date by a passionate minority that strongly believes it isnot in U.S. interests to join the convention. Opponents o the treatyargue that the convention unnecessarily commits the United Statesto ollow rules designed by states hoping to constrain American ree-dom o action. Their specic objections to the convention are crystal-lized in the minority views submitted or the record the last time theconvention was avorably voted out o the SFRC in December 2007:[C]ertain provisions o the [convention], particularly those dealingwith navigation, have merit, but overall and especially in regard to thedispute resolution, [i]t is puzzling why we would want to submit to a

judicial authority selected by the United Nations, given the organiza-tions corruption scandals, and the act that o the 152 countries Partyto the treaty, the median voting coincidence with the United States inthe General Assembly was less than 20 percent. This treaty subjectsthe United States to a governing body that is hostile to American inter-ests. Other provisions ound objectionable included taxes assessedto outer continental shel activities; ear o judicial activism by the Lawo the Sea Tribunal, especially with regard to articles relating to land-

based sources o pollution that are called a backdoor Kyoto Protocol;and a belie the convention will severely curtail U.S. intelligence-gath-ering activities.

On an item-by-item assessment, however, these arguments are oundto be lacking (Appendix I in ar greater detail addresses the conventionsopponents critical concerns). With regard to dispute settlement, theUnited States has indicated that it would choose arbitration as stated inthe drat resolution o advice and consent; it cannot be orced into any

other dispute settlement mechanism. Specically, Article 287 o the con-vention reads: [I] the parties to a dispute have not accepted the sameprocedure or the settlement o the dispute, it may be submitted only toarbitration in accordance with Annex VII, unless the parties otherwiseagree. Under no circumstances can the United States be subjected toany dispute resolution procedures without its consent. Also, the con-vention does not assess a tax but, rather, includes modest revenue-sharing provisions rom exploitation o oil and gas rom the seabedbeyond the EEZ that have been supported by every president since

Richard Nixon, including Ronald Reagan. These resources were aroutside any earlier claim made by the United States, and the agreement


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to the modest payments was part o a package deal that included will-ingness to recognize extension o U.S. control over the resources onthe continental margin beyond two hundred nautical miles, which mayencompass well over a million square kilometers o potentially exploit-able minerals. That the payments are, indeed, modest is attested to bythe support o the U.S. oil and gas industry or these convention provi-sions. With regard to a backdoor Kyoto Protocol, Bush administrationocials testied beore the SFRC that the convention does not applythe Kyoto Protocol to the United States, either directly or indirectly.The conventions provisions include no cause or legal action regard-ing land-based sources o pollution; they only represent agreement that

states are responsible or addressing pollution under their own lawsand enorcement. Lastly, the heads o the U.S. Navy and intelligenceagencies have testied beore the Senate Intelligence Committee thatthe convention does not impede intelligence-gathering activities; onthe contrary, the rights aorded to the United States by the conventionsignicantly empower U.S. intelligence-gathering abilities.

On balance, the arguments in avor o the convention ar outweighthose opposed, which is the reason the convention has attracted such a

diverse and bipartisan constituency. As presidents Clinton and GeorgeW. Bush orceully argued in their written communications with theSenate (Appendix II), objections to the 1982 convention were substan-tively addressed in the 1994 agreement on implementation. Continu-ing to treat most parts o the convention as customary internationallaw, as the United States does now, literally leaves it without a seat atthe table in important decision-making bodies established by the con-vention, such as the Commission on the Limits o the Continental

Shel (CLCS); weakens the hand the United States can play in negotia-tions over critical maritime issues, such as rights in the opening o theArctic Ocean; and directly undercuts U.S. ability to respond to emerg-ing challenges, such as increasing piracy in the Indian Ocean. Joiningor not joining the convention is more than an academic debate. Thereare tangible costs that grow by the day i the United States remains out-side the convention.

The majority view o the SFRC and the opinion o every majorocean constituency group is that joining the convention is in Americas

oreign policy interests. Debating the merits o internationalism versusunilateralism is a great U.S. tradition, but the irony is that the convention


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actually allows or an expansion o U.S. sovereignty: reedom o move-ment or a powerul navy; a legal tool or U.S. orces to combat scourgesat sea, such as piracy, drug tracking, and human smuggling; and a pro-cess or extending U.S. jurisdiction over a vast amount o ocean spaceequal to hal the size o the Louisiana Purchase.

As the next section o this report details, acceding to the conven-tion would advance a long list o national security, economic, and envi-ronmental issues o strategic importance to the United States. Beyondestablishing the rules or territorial seas and exclusive economic zones,the convention establishes regimes or managing shipping feets, sh,and pollutants that do not abide by national boundaries. The Law o

the Sea Convention includes specic provisions guaranteeing ree-dom o navigation or merchant feets and navies, and sets rm limitson jurisdiction to prevent creeping sovereignty by a ew aggressivecoastal states eager to unilaterally extend their authority seaward. Theconvention is used to prosecute pirates and is the basis or the Proli-eration Security Initiative (PSI) to interdict weapons o mass destruc-tion (WMD).

In addition to these traditional geostrategic issues, the conven-

tion is also germane to a host o other ocean uses, some traditionaland others new. It governs commercial activities on, in, and under theworlds oceans. With one-third o the worlds oil and gas already pro-duced oshore, this is especially important, as the uture o hydrocar-bon extraction is in ever-deeper waters. The convention establishes thejurisdictional ramework or rules governing this industry operating onthe extended continental shel. Deep-seabed mining is also an emergingindustry, and the convention establishes, together with the 1994 agree-

ment on implementation, the legal regime or extracting resourcesrom the ocean foor. The International Seabed Authority (ISA), cre-ated by the convention, introduces chambered voting, a permanent seator the United States in the executive decision-making bodies, and thepower to block adoption o rules and budgets that are counter to U.S.interests. The convention is also crucial or helping to manage commer-cial uses yet to be envisioned. Innovation and new technologies haveplayed an essential role in sustaining U.S. prosperity and preeminence,and American entrepreneurs will undoubtedly discover uture oppor-

tunities in the oceans.The convention as a whole refects traditional U.S. interests. It has

been supported by both Republican and Democratic administrations


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and enjoys the endorsement o major maritime organizations. Shouldthe United States join the Law o the Sea Convention? What haschanged to make accession so urgent? As the next section chronicles,a growing list o pressing maritime issues o strategic importance cov-ered by the convention makes prompt accession to the treaty a U.S.national interest.


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22

Immediate U.S. accession to the treaty is imperative to advance criticalU.S. national interests. These stakes can be grouped into three general

baskets: national security, economic, and environmental. Each daythe convention is in orceand each day its various organs make oceanpolicy and set legal precedentthe United States is in eect marginal-izing itsel. It is also placing itsel at a disadvantage by being unable tomobilize the convention to advance its interests through new initiativesor by means o the credibility that accompanies being a state party. Theollowing paragraphs summarize the abiding U.S. interests in becom-ing party to the Law o the Sea Convention.

NATIONAL SECuR IT Y

To date, U.S. military orces have successully protected American ship-ping and the homeland rom sea-based attack withoutthe benets othe convention. Why is it imperative to join the convention now? Whatdoes the convention provide that distinguishes it rom existing treaties

and the customary international law upon which the United States hasdepended or the past ve decades?In short, the convention provides the protection o binding interna-

tional law in our categories o essential navigation and overfight rights.Together, these rights ensure the strategic and operational mobility oU.S. military orces and the ree fow o international commerce at sea.Joining the convention guarantees that 156 states recognize the ollow-ing basic rights o U.S. military orces, commercial ships, civilian air-crat, and the oreign-fagged vessels that carry commerce vital to U.S.

economic security:

Strategic Imperatives


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23Strategic Imperatives

Right o Innocent Passage. The surace transit o any ship or subma-rine through the territorial seas o oreign nations without priornotication or permission.

Right o Transit Passage. The unimpeded transit o ships, aircrat,and submerged submarines in their normal modes through andover straits used or international navigation, and the approachesto those straits.

Right o Archipelagic Sealanes Passage. The unimpeded transit o ships, aircrat, and submerged submarines in their normal modesthrough and over all normal passage routes used or international

navigation o archipelagic waters, such as those claimed by thePhilippines and Indonesia.

Freeom o the High Seas. The reedoms o navigation, overfight, anduse o the seabed or laying undersea cables or pipes on the high seasand within the exclusive economic zone o a coastal state.

Further, the convention secures additional important rights or war-ships, including U.S. Coast Guard cutters, and government-operated

noncommercial ships, such as those operated by the Military SealitCommand:

Right o Visit . Warships may visit and board vessels reasonably sus-pected o being stateless or engaged in piracy. That right is criticallyimportant to ensure the legitimacy o many maritime security oper-ations, including U.S. counternarcotic and antiprolieration opera-tions, such as the Prolieration Security Initiative.

Right o Sovereign Immnity . Warships and government-operatednoncommercial ships enjoy complete immunity rom the jurisdic-tion o any state other than the fag state.

The convention also provides the rst concrete denitionsU.S.-preerred denitionso a coastal states territorial sea, contiguouszone, and jurisdiction in the increasingly important and oten con-tentious exclusive economic zone. The United States has previouslyasserted these rights and employed these denitions by relying on the

protections o customary international law and the provisions o the


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1958 Geneva Conventions. What makes these protections so vital toU.S. national security? Why now? What has happened to make joiningthe convention a national security imperative?

The world has changed dramatically in the last hal century, makingthe legal tools and protections the convention provides essential orthe United States to shape and infuence the security environment othe twenty-rst century. The political polarization o the Cold War hasyielded to a rise o both nations and nationalism. In 1958, there wereeighty-two members o the United Nations; today there are 192. TheNorth Atlantic Treaty Organization, the Americas bedrock nationalsecurity alliance, has grown rom teen member nations to twenty-six

members and twenty-our partners. While the threat o internationalconventional and nuclear war has diminished, the transnational threatso WMD prolieration and violent extremism by nonstate interestswith international reach have mushroomed. Expanding populations,combined with the growth o the newly industrialized economies,have ueled an increasing demand or and competition over naturalresources. The energy security o the United States and every majorworld economy now depends on a global uel market in which hal o

the worlds oil travels by sea, with most passing through a handul ostrategic straits. Global commerce is the cornerstone o every nationseconomic security, with approximately 90 percent o both interna-tional physical and electronic trade traveling across the sea in ships orunder the sea in cables.

Changes in politics and economics have been matched or exceededby changes in the physical world. Readily exploited reserves o oil andgas have been depleted. Entire species o highly valued apex predators,

like tuna, and less palatable but economically critical orage sh, likemenhaden, are collapsing. Meanwhile, a warming climate is openingthe Arctic Ocean to navigation, providing access to previously unreach-able resources and bringing about competing jurisdictional claims overthis rontier.

In 2008, the National Deense Strategy signed by Secretary oDeense Robert M. Gates reinorced the main tenets o the Coopera-tive Strategy or 21st Century Seapower, issued in 2007 by the chie onaval operations and the commandants o the Marine Corps and the

Coast Guard. Both strategies emphasize that the prevention o waris the best way to achieve U.S. national security, and both highlight


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the act that a strengthened system o alliances and partnerships is anessential component o building stability, collective security, and trust.The Cooperative Strategy or 21st Century Seapoweris aptly namedand uniquely relevant when considering the question o whether to jointhe convention. Its main points are:

Preventing wars is as important as winning wars.

U.S. maritime power comprises six core capabilities that emphasizepreventing war and building partnerships: deterrence, sea control,power projection, maritime security, humanitarian assistance, anddisaster response.

Expanded cooperative relationships with other nations will contrib-ute to the security and stability o the maritime domain to the beneto all.

Trust and condence cannot be surged; they must be built over timewhile mutual understanding and respect are promoted.

Global maritime partnerships provide a cooperative approach tomaritime security, promoting the rule o law by countering piracy,

terrorism, weapons prolieration, drug tracking, and other illicitactivities.

This strategy predicts that increased competition or resources,coupled with scarcity, may encourage nations to exert wider claims osovereignty over greater expanses o ocean, waterways, and naturalresourcespotentially resulting in confict.

Why are the provisions and protections o the convention vital to

implementing U.S. national deense and maritime strategies? Whynow? All six core capabilities o U.S. maritime orces are predicatedupon legally certain reedom o navigation and overfight, as dened bythe United States and codied in the convention. Joining the conventionsupports the strategic and operational mobility o American air, sur-ace, and submarine orces. It provides legal guarantees or those orcesto transit the high seas, exclusive economic zones, international straits,and archipelagic sea routes during times o crisis. It supports the ree-dom o those orces to legally conduct military survey, reconnaissance,

and intelligence gathering under the terms and conditions the UnitedStates preers. It allows the high-seas interdiction o stateless vessels


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and illegal activities under rameworks such as the Prolieration Secu-rity Initiative, using the protocols the United States careully crated toconorm to the convention. Most recently, this year articles 100 and 105o the convention have been applied as the basis o an agreement withKenya to prosecute Somali pirates apprehended in the Indian Ocean.

Implementing the maritime and national security strategies in thecurrent geopolitical environment requires that U.S. armed orces beprovided not only with the conventions rights, reedoms, and protec-tions necessary to acilitate military operations but also with the legallegitimacy necessary to build partnerships, trust, and condence withnations around the globe. Currently, American armed orces are ham-

strung when the United States publicly solicits other nations to join itin enorcing the rule o law, while at the same time reuses to join theinternational legal rameworks necessary to establish such rule. TheU.S. ailure to join the convention has directly prevented expansiono the PSI with some critically important Pacic countries. Althoughthese countries are supportive o U.S. counterprolieration eorts,they indicate that U.S. reusal to join the convention has eroded theircondence that the United States will abide by international law when

conducting PSI interdiction activities. Remaining outside the conven-tion risks urther damaging American eorts to develop cooperativemaritime partnerships, such as PSI, and undermining implementa-tion o U.S. security strategies that require the condence and trust oother nations.

Joining the convention would provide the United States with theopportunity to take a leadership role in the rst truly global maritimepartnershipa coalition o 156 nations committed to reedom o navi-

gation, the ree fow o global commerce, the protection o legitimatesovereignty, the suppression o illegal use o the sea, and the peaceulresolution o maritime disputes.

Joining the convention would also provide important diplomatictools or those times when the United States must act switly and aloneto exercise its right o sel-deense. In such situations, the leaders ostates party to the convention may lack the skill or the will to positivelyinfuence their domestic constituencies that oppose U.S. actions. Theconvention not only guarantees nearly universally recognized legal pro-

tection or the movement o U.S. military orces, it also provides vitalpolitical protection or oreign leaders who must resist domestic chal-lenges to U.S. use o airspace and water space within their jurisdiction.


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27

That protection may prevent short-lived but necessary unilateral actionby the United States rom damaging long-nurtured internationalrelationships.

In short, the convention is vital to carrying out the presidentsnational security strategy, including serving as the underpinnings sup-porting U.S. orce projection abroad and the legal armor or saeguard-ing America at home.

ECONOMIC

The convention provides the legal ramework or commercial useso the sea. It establishes clear lines o jurisdiction or states to governeconomic activity within their territorial seas and exclusive economiczones. (For example, whether the United States should lit oshoredrilling prohibitions is and will remain purely an internal issue.) Theconvention addresses not only hydrocarbon exploration and extrac-tion but establishes a governments ramework or all commercial uses,such as renewable energy projects like wind, current and tidal power,

commercial shing, and aquaculture. The convention also establishesa legal ramework or international uses o the sea that extend acrossnational jurisdictions. It guarantees the reedom o navigation orcommercial ships and aircrat while providing or the prompt releaseo U.S. fagged vessels seized by oreign states. The convention alsoacilitates the laying o submarine cables, the inormation backbone othe world economy. And it provides the basic rules or conserving andmanaging transboundary sh stocks, urther elaborated in the 1995

UN Fish Stocks Agreement. While all these economic issues are vitallyimportant, there are two that specically create a sense o urgency orthe United States to accede to the Law o the Sea Convention.

The rst is beneting rom the rules relating to extending nationaljurisdiction over the extended continental shel. Article 76 o the con-vention automatically gives states exclusive economic rights out to twohundred nautical miles rom their shores (determined rom a careullydened baseline). In addition, they can also assert sovereign rightsover natural resources in the extended continental shel beyond two

hundred nautical miles i the shel extension meets certain criteriaas outlined in the convention. The convention creates a procedure toacilitate the process o a coastal state submitting claims over its outer


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continental shel. The oce managing this procedure, the Commissionon the Limits o the Continental Shel, consists o twenty-one technicalexperts who review a countrys claims to ensure that the bathymetricand geological evidence submitted meets the conventions criteria. It isan orderly process, and the ollowing states, in chronological order, havemade submissions, some o them already approved by the CLCS: theRussian Federation, Brazil, Australia, Ireland, New Zealand, Norway,Mexico, Barbados, the UK, Indonesia, Japan, the Republics o Mau-ritius and Seychelles, Suriname, Myanmar, and France. Because o aten-year procedural clock that begins ticking when a country accedes tothe convention, twenty-six additional states are expected to make their

claims to the commission during the summer o 2009.The urgency or the United States joining the convention is twoold.

First, by not being a state party to the convention, the United States isunable to nominate or elect the expert commissioners who carry outthe work o the CLCS. That reduces the ability o the United States tocontribute to the work o the commission and ensure that the conven-tion is applied airly and objectively. Moreover, when Russia submittedwhat many considered an overly expansive claim in the Arctic Ocean in

2001, the U.S. ambassador to the UN, John Negroponte, could only lea demarche listing U.S. objections. By not acceding the convention, theUnited States has no standing beore the commission in what will bethe largest adjudication o state jurisdiction in world history.

Remaining a nonparty also prevents the United States rom makingits own submission to the commission. The State Department is cur-rently overseeing an eort to collect evidence or an eventual Americanclaim to the extended continental shel, but the United States cannot

ormally submit this package or review by the CLCS until it ormallyjoins the convention. By not joining, the United States is actually givingp sovereign rightsmissing an opportunity or international recogni-tion or a massive expansion o U.S. resources jurisdiction over as muchas one million square kilometers o ocean, an area hal the size o theLouisiana Purchase. Remaining outside the convention prevents theUnited States rom participating in the process o overseeing the claimso other countries to the extended continental shel and rom ormallymaking its own.

The second major economic issue that makes acceding to the con-vention urgent is the ongoing work o the International Seabed Author-ity, which oversees the minerals regime established by the convention


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or seabed areas outside national jurisdiction. The ISAs charter, asamended in the 1994 Agreement on Implementation, governs the inter-national seabed based essentially on ree market principles. By remain-ing a nonparty, the United States cannot ll its permanent seat on theISA and is thus unable to exercise its special veto power over decisionson certain specied matters. U.S. deep-sea mining companies used tobe among the worlds most promising, but they have withered awaywithout the legal protection that would come with the United Statesbeing a state party. American energy and deep-seabed companies havebeen put at a disadvantage in making investments or seabed miner-als projects by the legal uncertainty accompanying the United States

remaining a nonparty. Furthermore, U.S. rms cannot obtain interna-tional recognition o mine sites or title to recovered minerals.

The vastness o ocean space and the limits o our knowledge con-cerning the oceans uture economic potential also make it criticallyimportant that the United States plays a central role in the uture imple-mentation o the convention. The convention acilitates the conducto marine scientic research to expand understanding o the marinerealm. As knowledge increases and as technology advances, the oceans

may hold enormous, and as yet only dimly perceived, potential. Whencoupled with Americas unrivaled capacity or technological innova-tion, new ocean uses may become essential to helping drive economicprosperity or uture generations. In the midst o a historic economiccrisis, the United States needs to position itsel by joining the treaty inorder to secure its share o ocean industries o the uture and the high-paying jobs they will create.

ENvIRONMENTAL

Protection o the marine environment was a core U.S. objective duringthe Law o the Sea negotiations. The ecological challenges that preoc-cupied U.S. negotiating teams a generation ago, such as the conserva-tion o marine mammals and sh, have only become more acute in theintervening years. One in three marine mammal species is now con-sidered vulnerable to extinction, and it is estimated that the oceans

have lost more than 90 percent o their large predatory sh since theadvent o industrial shing. The conventions living-resources arti-cles create a ramework or international cooperation in the sustainable


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management o sh stocks and the conservation o marine mammals.That ramework has helped mitigate downward trends since becomingoperational, and it oers the United States tools it could utilize or con-servation ends i it participated in the Law o the Sea regime. The 1995UN Fish Stocks Agreement oers a prime example o how a careullyconstructed international accord negotiated within the ramework othe convention can provide or a legal binding conservation regime.Recognizing the utility o this specic sheries management tool, theUnited States rapidly ratied this additional instrument as soon as itwas possible to do so in 1996.

The conventions provisions on environmental protection address

all sources o marine pollution, rom ships and waste disposal at sea,in coastal areas and estuaries, to airborne particles. They create aramework or urther developing measures to prevent, reduce, andcontrol pollution globally, regionally, and nationally, and they call ormeasures to protect and preserve rare or ragile ecosystems, the habi-tat o depleted, threatened, or endangered species, and other orms omarine lie.

Those acts alone argue strongly or U.S. accession. To answer

the question Why now? however, a daunting set o comparativelynew ecological threats must be considered. Climate change and theburgeoning industrialization o the oceans are giving rise to severeenvironmental stresses that require an urgent global response. U.S.leadership is critical, not only in undertaking the research that will helpus understand the eects o climate change in the marine environmentand related mitigation and adaptation options, but also in tackling theproblems head-on. In many respects, such leadership cannot be ully

realized without accession to the convention.Oceans are among the rst casualties o increased greenhouse-gasemissions. In preindustrial times, the oceans released an amount ocarbon that roughly equaled the quantity they absorbed. But with risinglevels o atmospheric CO

, the seas are being asked to absorb more

carbon than ever beore, a process that has already increased the acidityo ocean surace waters by approximately 30 percent. It is projectedthat global surace pH will decrease by a urther 40 percent to 120 per-cent by the end o the century, at which point the amount o CO

in

the ocean will exceed levels seen at any time in the last three hundredmillion years.


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Acidication carries with it the potential to devastate ocean ecosys-tems. It will deprive marine animals o access to the calcium carbonatemany o them require, weakening the ormation o calcium carbonateshells. Commercially shed species that will be directly aected includecorals, mussels, oysters, lobsters, and crabs. More important, however,is the likely impact on many species o small planktonic plants and ani-mals that are crucial to marine ood webs. In short, acidication has thepotential to transorm ocean lie, and its impact is already being elt byAmericas marine environment.

A related consequence o climate change is ocean warming. Theabsorption by the ocean o excess heat in the atmosphere elevated ocean

temperatures in the upper 700 meters by 0.1 degree Celsius between1961 and 2003. That ostensibly small temperature rise over such a vastexpanse o water is, in act, potentially devastating not only to oceanlie but to lie in general, because o the role ocean temperature plays indriving the planets climate. The oceans store huge amounts o heat anddistribute it across the globe. Even small changes in ocean temperaturewill have consequences or how that process occurs. As the oceans con-tinue to warm, both the requency and the intensity o hurricanes are

predicted to increase. Scientists also predict more extreme maximumtemperatures and more requent heavy precipitation.

Change is happening most rapidly, and can be seen most vividly, in theArctic. The Arctic Ocean is the least understood o all the worlds oceans,but we know it is warming at approximately twice the rate o the rest othe oceans. That is causing the rapid retreat o Arctic sea ice. In Septem-ber 2007, the minimum ice extent at the end o summer was 23 percentlower 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.

Scientistsrom the National Snow and Ice Data Center and the National Centeror Atmospheric Research have ound that Arctic sea ice is melting evenaster than models have projected, giving rise to predictions that theArctic might be seasonally ice ree as soon as 2013, and possibly earlier.

Such rapid change will lead to the local lossor, in some cases, com-plete extinctiono certain Arctic species. Ice-associated marine algaeand amphipods provide the base o the unique ood web that includes arich variety o invertebrates, sh, and birds. Ice-dependent ocean mam-

mals, such as bowhead whales, narwhals, polar bears, ringed seals, andwalruses, will also be directly aected by loss o habitat. The changes in


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the extent o Arctic sea ice will also have proound consequences or theworlds climate, increasing the retention o solar heat and reducing thevital temperature gradient between the warmer tropics and colder polarregions, thus altering ocean currents and weather patterns throughoutthe Northern Hemisphere.

Attempts to mitigate climate change are the subject o separate inter-national discussions. There is a strong argument to be made that acced-ing to the Law o the Sea Convention would strengthen Americasdiplomatic hand in those negotiations. Quite apart rom that, however,the ar-reaching changes to ocean ecosystems that are occurring as aresult o climate change provide an answer to the question Why now?

Full U.S. participation in the convention is vital as the internationalcommunity adjusts to a rapidly changing ocean environment. The needto nd ways to help humankind adapt to a changing climate will becomeincreasingly important. Eorts to restore the natural resilience omarine ecosystems and species through their protection, maintenance,and restoration will be a central part o that eort. Given the geopoliti-cal context o the Arctic region, U.S. leadership will be crucial.

The Arctic oers a particularly sobering environmental imperative.

As its ecosystem comes under increasing strain rom climate change,melting sea ice will expose it to unprecedented pressures that willaccompany increased human access. Concerted international engage-ment to ensure eective and integrated ecosystem-based managemento human activities in the Arctic is essential. Acceding to the conven-tion would help the United States advance new governance initiativesin this important region, such as shipping-trac schemes through theBering Strait, coordinated sea route authorities, and possibly even the

establishment o a marine scientic park at the North Pole. The conven-tion provides solid legal bedrock on which to build elegant and eectivegovernance structures or the uture Arctic.

As the Law o the Sea regime becomes more entrenched, the inter-national organs it has created are becoming more important policy-making centers. The continued absence o the United States rom thisinternational management regime deprives the United States o theopportunity to exercise environmental leadership over nearly three-quarters o the earth. Joining the convention would permit the United

States to become the main orce or responsible ocean stewardship atthis critical juncture, rather than see the ate o the oceans determinedby other players.


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HOW REMAINING OU TSIDE THE CONVENTIONDAMAGES U.S. NATIONAL INTERESTS

The convention is now open or amendment and could bechanged by countries hostile to U.S. interests i the UnitedStates does not participate in the process. The terms o theconvention require accepting the treaty in toto, and joiningnow would allow the United States to lock in an agreementmost avorable to its interestsand also gain the ability toapply maximum leverage against other states on strategic

oceans issues. The longer it remains a nonparty, the more theUnited States cedes its negotiating strength.

The convention provides two essential and immediate compo-nents or responding to piracy o the coast o Somalia. First,the convention permits any state to arrest pirates, seize piratevessels, and prosecute pirates in the courts o the interdictingnaval authority. Second, and equally important, the conven-tion protects the sovereign rights o ocean-going states that

participate in antipiracy naval operations in the territorialseas o ailed states such as Somalia. This is critical or build-ing international naval fotillas or combating the growingpirate problem in the Indian Ocean.

The United States cannot currently participate in the Com-mission on the Limits o the Continental Shel, which overseesocean delineation on the outer limits o the extended continen-tal shel (outer continental shel). Even though it is collecting

scientic evidence to support eventual claims o its Atlantic,Gul, and Alaskan coasts, the United States, without becomingparty to the convention, has no standing in the CLCS. This notonly precludes it rom making a submission claiming the sov-ereign rights over the resources o potentially more than onemillion square kilometers o the OCS, it also denies the UnitedStates any right to review or contest other claims that appearto be overly expansive, such as Russias in the Arctic. This isespecially urgent this year, as the commission will review aninfux o claims expected in May 2009, the deadline or twenty-six states to make their submissions based on the proceduralclock that began ticking when they ratied the convention.


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claims, and to challenge Canadas assertion that the NorthwestPassage alls within its internal waters.

American energy and deep-seabed companies are at a disadvantage in making investments in the OCS due to the legaluncertainty over the outer limit o the U.S. continental shel,nor can they obtain international recognition (and, as a result,nancing) or mine sites or title to recovered minerals on thedeep seabed beyond national jurisdiction. Even i U.S. rmswere to unilaterally set out on their own, because the UnitedStates has negligible mineral-processing technology, theywould have diculty nding international partners to buyunprocessed minerals because they would have been obtainedoutside o the agreed regime.

The United States is unable to ll its permanent seat on theCouncil o the International Seabed Authority and thus toinfuence this bodys work overseeing minerals developmentin the deep seabed beyond national jurisdiction.


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The arguments avoring the convention ar outweigh those opposing it,and the United States should immediately join the 1982 Convention on

the Law o the Sea. O the treaties awaiting the Senates advice and con-sent, this agreement is extraordinary in its implications or the nationalinterest. As a result, the convention is getting a resh look in Washingtonwithin the context o the current geopolitical seascape. The politics sur-rounding U.S. accession have also changed with a supportive president,secretary o state, and SFRC chair combined with the likelihood o morevotes in the Senate. The convention is now poised to receive the Senatesadvice and consent as required by the Constitution o the United States.

Driving the conventions reappraisal are the substantive issuesdemanding action. An increasingly assertive Chinese navy, a spikein pirate attacks in the Indian Ocean, and the opening o the Arcticto international shipping and resource extraction are but a ew o thepressing issues that give mounting urgency or the United States tojoin the convention. Beyond these national security issues, and roman environmental perspective, the oceans realm is in deep distress inmany parts o the world, and no nation acting alone can remedy this.

Collaboration on the basis o the convention oers by ar the sharpestarrow in the international communitys quiver or responding, and byjoining, the United States will gain a leadership role or responding tosuch environmental challenges.

In addition to the specic benets to the national interest accruedrom joining the convention, an internationally visible and successulbipartisan campaign that culminated in the United States joining thetreaty this year could provide a springboard or a broader oreign policyagenda. Such a campaign would immediately

Enhance U.S. global credibility by matching action to rhetoricregarding the rule o law. Joining this particular convention sends

Conclusions and Recommendations


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More dicult to measure than what would be gained rom U.S.accession is the diplomatic blight on Americas reputation or rejectinga careully negotiated accord that enjoys overwhelming internationalconsensus, one that has been adjusted specically to meet the demandsput orth by President Reagan two decades ago. Remaining outsidethe convention undermines U.S. credibility abroad and limits the abil-ity o the United States to achieve its national security objectives. Thetreaty was negotiated over decades during which American delegationsscored important victories. To the dismay o the rest o the world thatnegotiated the convention with the United States in good aith (and isnow proceeding in making ocean policy and setting legal precedent

in orums where U.S. infuence is diminished), ater teen years theSenate has yet to have an up or down vote.

The 1982 Convention on the Law o the Sea may seem an obscureagreement to nonexperts. That is not the case. The convention is a care-ully negotiated international agreement numbering several hundredpages that covers a host o measurable national security, economic, andenvironmental issues o vital strategic importance to the United States.By remaining a nonparty to the convention, the United States not only

oreits these concrete interests but also undermines something moreintangible: the legitimacy o U.S. leadership and its international repu-tation. For example, American pleas or other nations to ollow pollu-tion and shing agreements ring empty when the United States visiblyrejects the Law o the Sea Convention. Remaining outside the con-vention also hurts its diplomatic hand in other international orums,as well as the perceptions o other states about U.S. commitments tomultilateral solutions. As ormer Supreme Court justice Sandra Day

OConnor has noted, The decision not to sign on to legal rameworksthe rest o the world supports is central to the decline o American infu-ence around the world.

Given the unprecedented challenges, threats, and opportunities theUnited States currently aces, it is as important as ever at this criticaljuncture to strengthen American infuence and diplomatic leadership.Historically, one o the underlying oundations o U.S. global leadershiphas been a perceived commitment to the international rule o law andwillingness to build international institutions that create a predictable

international order rom which all peace-loving countries can benet.Acceding to the Law o the Sea Convention will help undergird contin-ued U.S. leadership, by sending a tangible signal that the United States


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Why is it imperative or the United States to join the convention?Why now? To ail to join the convention this year would be to lose aunique opportunity. The United States is experiencing a conjunctiono circumstances that includes the resh start eect o a new admin-istration, the ascendance o two national security strategies oundedon confict prevention and partnership building, and a community onations eager or renewed American multilateralism. By joining theconvention now, the United States gains legal protection; or its sov-ereignty; sovereign rights and jurisdiction in oshore zones, the ree-dom o maneuver and action or its military orces; and protection oreconomic, environmental, and marine research interests at sea while

seizing an opportunity to restore the mantle o international leader-ship on, over, and under nearly three-quarters o the earth. It is a bipar-tisan agenda, and one in the strategic interests o the United States. TheSenate should proceed this year and oer its advice and consent o theLaw o the Sea Convention.


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The decision to enter a signicant international agreement demandsa thorough and deliberative review that appropriately generates a

number o critical concerns. This section reviews the concerns mostoten raised about the convention and the rationale o the associatedmajority and minority opinions.

Nearly twenty years o negotiation and renegotiation, the incorpo-ration o substantive changes by the addition o agreements, and anexecution mechanism under U.S. law that applies a resolution o adviceand consent make understanding the legal implications o joining theconvention a challenge, even or dedicated scholars. The act that a well-

respected president opposed the convention citing several major prob-lems in the Conventions deep seabed mining provisions that wouldendanger U.S. interests has led a minority o public opinion leaders topersistently oppose accession. Ater these problems were addressed bythe 1994 agreement and the convention was submitted to the Senateby two later presidents, some opinion leaders continue to cite concernsthat the convention poses risk to U.S. national interests.

In its 1982 orm, the convention contained unacceptable elements

that led President Reagan to declare:

We have now completed a review o that convention and recog-nize that it contains many positive and very signicant accom-plishments. Those extensive parts dealing with navigation andoverfight and most other provisions o the convention are con-sistent with United States interests and, in our view, serve well theinterests o all nations. That is an important achievement and sig-nies the benets o working together and eectively balancing

numerous interests. . . . Our review recognizes, however, that thedeep seabed mining part o the convention does not meet UnitedStates objectives. For this reason, I am announcing today that theUnited States will not sign the convention . . .

Appendix I

R E v I E W O F CR I T I CA L CO NCE R NS


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42 Appendix I

The outcome o U.S. action to legally remedy the unacceptable ele-ments, ater the convention was adopted by the General Assembly orratication, was a complex body o related documents. To completelycomprehend the implication o U.S. accession in 2009 requires anappreciation o customary treaty language combined with an under-standing o the integrated eects o the original 1982 instrument, the1994 agreement relating to the implementation o Part XI, and the pro-posed Senate Resolution o Advice and Consent.

onerns related to national seurity

As developed in earlier sections o this report, the majority opinionholds that joining the convention will enhance national security. Themost prevalent minority opinions cite concerns regarding detrimentaleects on:

Military Operations. U.S. military orces are already legally boundto ollow the provisions o convention by virtue o President Rea-gans 1983 Statement on Ocean Policy; thereore, joining the con-

vention will impose no additional restrictions on U.S. militaryoperations. Since the completion o the 1994 agreement, there hasbeen unanimous support or joining the convention by uniormedand civilian national security leaders, including the chairman andJoint Chies o Sta, the combatant commanders, and the comman-dant o the Coast Guard. The public rec

the national interest and the law of the sea_csr46 (1)

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