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Published today on the Council on Foreign Relations website:

Climate Right for U.S. Joining Law of Sea Convention

Authors:
Scott G. Borgerson, Visiting Fellow for Ocean Governance
Thomas R. Pickering, Vice Chairman, Hills & Company

December 23, 2009

Delegates unable to strike a grand compromise at the UN Climate Conference in Copenhagen last week should look to the UN Law of the Sea Conference for inspiration on how to successfully negotiate a complicated global accord. Settling on an agreed set of rules for the world's oceans was also a massive undertaking, requiring decades of patience, hard work, and deft diplomacy to iron out an agreement that would be acceptable to a diverse community of nations. Facilitated by principled leadership by the United States, ultimately 157 countries have now signed and ratified the Law of the Sea Convention, which provides the overarching framework for managing the world's oceans and what lies above and beneath them. This year marks the fifteenth anniversary since the treaty has come into force.

Yet despite its central role shaping the convention and securing significant amendments to address outstanding concerns, the United States has failed to join. The United States remains among only a handful of countries with a coastline, including Syria, North Korea, and Iran, to not yet accede to the treaty. While remaining non-party to the convention might seem a point of diplomatic inconsequence, emerging issues like the melting Arctic make joining increasingly urgent. The polar ice cap is melting at an unprecedented clip, and the Arctic Ocean is on pace to be seasonally ice-free within a decade. In the next few years, do not be surprised if the sea ice covering the North Pole disappears for the first time in recorded history. As the Copenhagen process drove home, this fastest-warming region on earth is an imperative for action to reduce green house gas emissions, yet it is also relevant for a host of traditional geostrategic maritime issues covered under the Law of the Sea.

Arctic Maritime Opportunities

For starters, the retreating ice is creating more effective shipping shortcuts like the Northeast Passage over Russia that opened to commercial navigation for the first time this past summer. This sea change is also yielding access to an estimated quarter of the world's remaining hydrocarbon reserves, which has set off a full court press among Arctic nations to extend the legal definition of their continental margins. Virgin fishing stocks are also becoming accessible, spurring the recent decision by Secretary of Commerce Gary Locke to secure exploitation of some of these resources in domestic waters and helping to inspire President Barack Obama to charter a White House Ocean Policy Task Force whose final recommendations are expected any day. Despite these opportunities and threats, by stubbornly remaining non-party to the Law of the Sea Convention, the United States remains hobbled on the Arctic's geopolitical sidelines.

The United States is unilaterally freezing itself out of important international policymaking bodies, literally forfeiting a seat at decision-making tables. One very important forum where the United States has no say is the commission vested with the authority to validate country's claims to extend their exclusive economic zones on the outer continental shelf (OCS), a process that is the last great partitioning of sovereign space on earth.

By being the last significant maritime nation in the world to formally join the treaty, the United States is forgoing an opportunity to extend its national jurisdiction over a vast amount of ocean area on its Arctic, Atlantic, and Gulf Coasts--equal to almost half the size of the Louisiana Purchase--while simultaneously abdicating an opportunity to have a say in deliberations over other nation's claims elsewhere. This was highlighted by Russia's stunt to plant a flag at the North Pole's sea floor. The United States also marginalizes itself in the International Seabed Authority, the UN body established by the convention to oversee deep seabed mining, an important emerging industry.

Debating the value of international agreements is a great U.S. pastime, but the truth here is that the convention actually allows for an expansion of U.S. sovereignty--extending American sea borders; guaranteeing the freedom of movement of ships and airplanes for the world's most powerful navy; and enhancing legal tools to combat scourges at sea such as piracy, drug trafficking, human smuggling, and proliferation of weapons of mass destruction. Potential participants in U.S.-organized flotillas in the Indian Ocean to protect vital shipping routes from piratical attacks and U.S.-led coalitions to prosecute North Korean contraband shipments under the Proliferation Security Initiative rightly question why they should assist the United States in enforcing the rule of law when it refuses to recognize the convention that guides the actions of virtually every other nation.

National Interests in other Waters

The Law of the Sea is also an important vehicle for the United States in coordinating action on a host of environmental crises, from collapsing fisheries and the ravages of climate change like ocean acidification and sea level rise, to the growing problem of marine pollution. The convention is also critical to U.S. economic security as it governs commercial activities on, in, and under the world's oceans. With one-third of the world's oil and gas already produced offshore, the future of hydrocarbon extraction is moving into ever-deeper waters. Deep-seabed mining is also an emerging industry, and the convention establishes the legal regime for extracting mineral resources from the ocean floor. Joining the central agreement governing maritime issues is directly germane to a maritime power where half of its (and the world's) population lives within fifty miles of a coast, 90 percent of all its trade is ferried by sea, and U.S. ocean-dependant industries contribute $138 billion to the nation's economy.

Why is it imperative for the United States to join the convention after all these years, and why now in the midst of investing so much energy into trying to draft a new climate agreement? First, the loss of a unique opportunity; the United States is experiencing a convergence of circumstances that includes the ascendance of a national security strategy founded on conflict prevention and partnership building, a community of nations eager for renewed American multilateralism, and a formidable list of ocean challenges demanding coordinated policy action.

Second, officially becoming party to the treaty would provide the legal foundation necessary to protect and enhance U.S. sovereign and security interests; assure unilateral rights and jurisdiction in offshore zones and the freedom of passage for U.S. military forces in strategic waterways; and ensure protection for U.S. maritime research interests. And lastly and equally significant on the heels of a climate conference that failed expectations, the United States would seize an opportunity to restore the mantle of international leadership over nearly three-quarters of the earth. This would also send the right message at the right time to the international community that the United States can be trusted to negotiate complicated treaties in good faith.

The United States joining the Law of the Sea Convention enjoys broad bipartisan support, including endorsement by both the two previous presidential administrations; is championed by the Joint Chiefs of Staff and leading senators of both parties on the Senate Foreign Relations Committee; and has been recommended by every major ocean constituency. This broad consortium needs President Obama's support early in 2010 to help guide the treaty through the Senate approval process before Washington can credibly help lead a new comprehensive climate regime. The political stars are aligned in the Senate for passage, and a formal endorsement of the convention by the president in the coming weeks would send the necessary signal to the Congress and the world that the United States is ready to join this widely accepted corpus of international law.

Scott G. Borgerson is the visiting fellow for ocean governance at the Council on Foreign Relations. Ambassador Thomas R. Pickering is a former Under Secretary of State for Political Affairs.

The current issue of "Navy," the monthly publication of the Association of the United States Navy, includes an article analyzing the LOS Convention in terms of Navy and National interests and comes to the conclusion that the United States should join the Convention. The concluding paragraph of the article reads:

In short, the US stands only to gain by ratifying the LOS Treaty. The rapidly changing environment of the Arctic region makes it all the more urgent for the US to join. Receding ice due to global warming has opened up new waterways and led to an increase in development of the region’s vast oil and gas reserves, and countries are laying claims to these resources. By joining UNCLOS, we would be able to secure the rights over resources in the Arctic and play a prominent role in the governance of this region and beyond.

You may view a PDF of the full article by clicking the link below:

View the full article at the AUSN site

On March 10th, 1983, and after months of consideration of the implications of the adoption of the final act of the Law of the Sea Conference and the signature of the 1982 UN Convention on the Law of the Sea by 119 nations, President Ronald Reagan issued his statement of US Oceans policy. After noting that the US would not join the 1982 Convention because of its provisions related to the resources of the deep seabed beyond national jurisdiction, he went on to say that the balance of the Convention was in the interest of the United States and would be observed by the US. He went on to declare the non-seabeds parts to be "fair and balanced results" and specified three areas for specific comment:

Today I am announcing three decisions to promote and protect the oceans interests of the United States in a manner consistent with those fair and balanced results in the Convention and international law.

First, the United States is prepared to accept and act in accordance with the balance of interests relating to traditional uses of the oceans -- such as navigation and overflight. In this respect, the United States will recognize the rights of other states in the waters off their coasts, as reflected in the Convention, so long as the rights and freedoms of the United States and others under international law are recognized by such coastal states.

Second, the United States will exercise and assert its navigation and overflight rights and freedoms on a worldwide basis in a manner that is consistent with the balance of interests reflected in the convention. The United States will not, however, acquiesce in unilateral acts of other states designed to restrict the rights and freedoms of the international community in navigation and overflight and other related high seas uses.

Third, I am proclaiming today an Exclusive Economic Zone in which the United States will exercise sovereign rights in living and nonliving resources within 200 nautical miles of its coast. This will provide United States jurisdiction for mineral resources out to 200 nautical miles that are not on the continental shelf. Recently discovered deposits there could be an important future source of strategic minerals.

In the rest of the statement, President Reagan went on to address related matters, such as the right of coastal states to manage marine scientific research in their EEZs and on their Continental Shelves, while noting that the US would not implement such a regime in spite of its legal right to do so.

At a time when the sportfishing organizations have questioned whether the LOS Convention would affect their rights at sea, it is well to note that 26 years ago President Reagan accepted the fisheries provisions of the Convention and they have been observed in US law and regulation ever since.

(click 'Read More" for full text of Reagan 1983 ocean Policy Statement)

An upgrade to the oceanlaw.org content management software now allows embedding of videos. This video dates back to the beginning of 2009 but is still timely in light of Secretary Clinton's recent letter to Senators Kerry and Lugar offering the State Department's assistance for hearings on the LOS Convention.

It is an understatement to say that there is support for the Law of the Sea Convention in the state of Alaska. Three governors (including Sarah Palin) and three senators (two republican and one democrat) have endorsed the Convention, and the Alaskan state legislature endorsed joining the convention by overwhelming bipartisan margins earlier this year.

This week, the Anchorage Daily News stepped forward with its own endorsement of the LOS Convention. One hopes that in a contest between tangible benefits to Alaska and the nation and the unsubstantiated and ill-founded fears inflamed by unilateralist and isolationist groups such as the Heritage Foundation and the John Birch Society, US leaders in the Senate and the White House can step forward in the same way as leaders in Alaska have done.

Thursday's Anchorage Daily News brings enlightened self interest to the debate (or, at present, the lack of debate) over whether and when the Senate should act on the Law of the Sea Convention that has been before it for 15 years and under active consideration since 2003. After recognizing the resources that could be enclosed by a US claim to the extended shelf under the provisions of the LOS Convention and reviewing the history of the Convention before the Senate, the paper concludes "BOTTOM LINE: Alaska needs the U.S. Senate to ratify the Law of the Sea Treaty."

Our view: Racing to resources
Alaska prospects uncertain as U.S. sits on the sidelines

(09/11/09 17:19:27)
Friday's front page carried a heart-warming example of international cooperation between the U.S. and our Canadian friends. Icebreakers from the two countries are doing joint surveys of the high arctic ocean floor. They're looking for geographic features that might enable the nations to make territorial claims that extend beyond the 200-mile limit now recognized in international law.

If the arctic holds rich resources beneath the international ocean floor, this is how the U.S. would claim our rightful share.

Only one problem for the U.S.: We won't be able to make any new claims to arctic ocean territory until we ratify the Law of the Sea treaty.

Every other arctic and industrialized nation has officially approved the treaty, which was first concluded in 1982 and revised to meet U.S. objections in 1994. At first the U.S. accepted all aspects of the treaty except for those saying how seabed mining in international waters would be administered and regulated. The 1994 revision cured U.S. objections. Since then the call to ratify the treaty has garnered impressive political support.

President George W. Bush supported ratification. The American Petroleum Institute did too. So have environmental organizations and the official U.S. commission on ocean policy. The Pentagon has said ratifying the treaty will be helpful to national security.

The treaty has won strong support in votes on the Senate Foreign Relations Committee. Conservative Republican Sen. Richard Lugar of Indiana was an enthusiastic supporter when he chaired the committee.

Here in Alaska, Lisa Murkowski, the fifth-ranking Republican in the U.S. Senate, supports ratification. So does her Democratic counterpart Mark Begich. Republican Gov. Sean Parnell recently endorsed ratification as well.

So what's keeping the Senate from doing the right thing?

In 2004 Sen. Richard Lugar described the opposition this way: "Concerns have been expressed primarily by those who oppose virtually any multi-lateral agreement."

In other words, it's the crowd that thinks cooperating with other countries is a step toward one-world government.

But as Sen. Lugar has noted, the oceans beyond 200 miles are international territory now. The U.S. can be part of international agreements to manage those areas, or we can stay home and pout about having to cooperate with other countries. The treaty would give the U.S. a strong role in managing resource development in distant ocean waters. Those issues would not be handled through the United Nations General Assembly.

Sen. Lugar has described the treaty this way: It "expands the ability of American oil and natural gas companies to drill for resources in new areas, solidifies the Navy's rights to traverse the oceans, enshrines U.S. economic sovereignty over our Exclusive Economic Zone extending 200 miles off our shore, helps our ocean industries create jobs and reduces the prospects that Russia will be successful in claiming excessive portions of the Arctic." In the race to stake potentially valuable resource claims in the high arctic ocean, the U.S. is way behind. As soon as Congress finishes work on health care, the Senate should ratify the Law of the Sea treaty.

BOTTOM LINE: Alaska needs the U.S. Senate to ratify the Law of the Sea Treaty.

It is also worth noting that Alaska's most recent governors (2 republican and 1 democrat), three current and recent senators (again, 2 republican and 2 democrat) and the entire legislature (by a vote of 34 to 4 in the Alaskan House and 15 to 2 in the Senate) have called for approval of the LOS Convention.

The news this weekend is that we have the year's first endorsement of US accession to the UN Convention of the Law of the Sea from inside the Executive Office of the President. CEQ Chair Nancy Sutley, joined by NOAA Administrator Jane Lubchenco and Coast Guard Commandant Adm. Thad Allen published an article in the Seattle times on the topic of stewardship of the Oceans in which they had this to say:

We strongly support ratification of the U.N. Convention on the Law of the Sea. The oceans have been called, "the last global commons," and their sustained global health can best be maintained by a stable, universally accepted convention that promotes the key interests of the United States, its allies and its trading partners. Ratification would ensure our ability to participate in interpreting and applying the convention to the changing realities of the global maritime environment and preserves our ability to protect our domestic interests, including our extended continental shelf claims.

View the Full article in a new page.

The hearings convened by Sen. Lisa Murkowski on August 20th keep bearing fruit. Here, from "Examiner.com", comes the statement of Sean Parnell, the new governor of Alaska. This news from Alaska somehow qualified as local DC news, but I won't look a gift horse in the mouth:

Foreign Policy For much of its history, the Arctic has been both ungoverned and ungovernable. Even as the eight Arctic nations have increased economic activity, the Arctic climate has impeded economic and social development, transportation, and research. That era must end.

I strongly urge the Senate to ratify the United Nations Convention on the Law of the Sea. Once ratified, the treaty will allow us to claim jurisdiction over the offshore continental shelf behind the 200-mile limit. U.S. boundaries could grow into areas that may hold large deposits of oil, natural gas and other resources. Russia, Canada, Denmark, and Norwayhave claims to Arctic territory under the auspices of the Law of the Sea. Without ratification, the U.S. cannot fully participate in adjudication of these claims.

An awkward absence
May 14th 2009
From The Economist print edition

America is missing out by being stand-offish towards the law of the sea. So is the sea

YOU do not see many milestones on the floor of the ocean, but one was passed this week. May 13th was the deadline for the submission of new claims to the seabed, and from pole to pole coastal states have been asserting ownership of vast chunks of continental shelf in a rush for territory unrivalled since the scramble for Africa at the end of the 19th century (see article). The treasure this time is not ivory or cocoa beans but petroleum, or at least the promise of it, and perhaps amazing fuels and wonder drugs, as well as gold, silver and other minerals. The claims will now be accepted or rejected by a United Nations commission, but one big maritime power will, by choice, be absent: the United States. It should not be.

The report's title is "National Security and the Law of the Sea." It is an excellent primer for people new to the issue who want a quick introduction as well as a review for people who have been long involved in the subject. This is not a superficial review - the meat of the report takes 45 pages .

Authored by Scott Borgerson, CFR Fellow in Ocean Governance, the work draws on the users of the ocean who depend upon the rule of law to carry out their activities at sea: representatives of the groups that are actually affected by US non-participation in the Convention; negotiators who gained their experience at the LOS Conference and in the bureaucracy crafting US positions; and as scholars in ocean law and policy. The antithesis of the ideology-driven unilateralist and neo-know-nothing opposition, Borgerson and his advisory committee represent the people with knowledge of ocean law and policy and an organizational interest in the reinforcement of the law of the sea with US adherence to the LOS Convention.

If you can give only one publication to a person who is interested in the current debate over the LOS Convention, I recommend this one. In the near future we can complement it with talking points and summaries for which this report will be an excellent source.

The report not only addresses the "why" of joining the Convention but the "when" as well, calling for action early by the Administration.

Particularly helpful are two and a half pages that itemize 11 ways in which non-party status hurts US interests.

The report's conclusions do not end with a recommendation to join the convention as soon as possible. They go on to outline a foreign policy initiative including both symbol and substance. The symbol, of course, is renewed US commitment to the rule of law. The substance is to build upon accession to the Convention to increase our role as world leader in building security partnerships at sea, to implement programs and activities within the Convention that halt 'creeping jurisdiction' and excessive resource claims, to use our heightened stature as a champion of the rule of law at sea to help allies resolve their ocean-related disputes, to take an active role in the work of the Commission on the Limits of the Continental shelf and the International seabed authority, and to gain credibility for US leadership in environment and resource conservation issues,

The report also has valuable supporting documentation in its appendices:

• A critique of critical concerns related to National Security and National Sovereignty;
• President Clinton's submittal letter requesting that the Senate give its advice and consent to accession to the Convention and 1994 agreement on Implementation; President Bush's 2007 statement of support requesting favorable action by the Senate on US accession to the Convention; and,
• The 2007 Draft Resolution of Advice and Consent forwarded with approval by the Senate Foreign Relations Committee to the full senate in December, 2007.

The chapter list is:

• Introduction
• Background and Context
  • Brief History of the Law of the Sea from Hugo Grotius to Today
  • Brief History of the Law of the Sea in the Senate
• Oceans and National Interests
• Arguments For and Against the Convention
  • Strategic Imperatives
  • National Security
  • Economic
  • Environmental
• Conclusions and Recommendations
• Appendices
  • Review of Critical Concerns
  • Presidential Documents
  • Text of Draft Resolution of Advice and Consent

Source: <a href="http://www.cfr.org/content/publications/attachments/LawoftheSea_CSR46.pdf"target=_blank>Report in PDF format (4.7MB)

It is important to note that when Barack Obama undertakes to fulfill his promise to work to ensure US ratification of the Law of the Sea Convention that he will be holding true to a consistent US policy that reaches back not just to the George W. Bush Administration, but all the way back through the Clinton, Bush, Reagan, Carter, Ford and Nixon Administrations to the initial planning under LBJ. Indeed, it is hard to think of more than a handful of US policy positions that have been as consistent and durable as US support of a codified, comprehensive and universal law of the sea convention.

In light of the consistency from one administration to the next, the statement by the Legal Adviser of the Department of State earlier this week is and will remain an important assessment of US interests and policy regarding the LOS Convention and a starting point for the incoming administration:

John B. Bellinger III, Legal Adviser, U.S. Department of State)
Remarks at the University of California, Berekeley School of Law's Law of the Sea Institute
Monday, November 3rd:

Let me begin by thanking David Caron and the other organizers of this conference. I am very pleased to speak to you today about the law of the sea. Now, the first thing to know about this topic is that it is the occasion of endless wordplay. The mere mention of the Law of the Sea Convention, and the puns set sail. I didn’t know the topic well when I joined the Administration in 2001, but it’s one in which I have since been immersed – at times, submerged. And after plumbing the depths of the issue – and diving into the details – I have concluded (now that I’ve come up for air) that joining the Convention is the right thing to do.

The Washington Times
Tuesday, August 5, 2008
LETTER TO EDITOR: Law of the Sea protects U.S.

Contrary to Doug Bandow's opinion (LOST crosscurrents," Commentary, July 27), the Law of the Sea Treaty has a diverse and bipartisan group of experienced national backers, including military leaders, environmentalists, ocean industries, think tanks and political figures who recognize and support the pressing need to sign this treaty.

There are enormous benefits to U.S. participation in the Law of the Sea. First and foremost, it would give us a seat at the table and a leadership role in international negotiations that immediately would enhance and protect our national and economic security interests.

The influence of the convention on international activities, such as those surrounding commercial, military and environmental activities in the Arctic, is growing. However, as virtually the sole industrialized nation not party to the treaty - to which 155 nations and the European Union belong - the United States remains sidelined.

The concerns surrounding the seabed mining provisions raised in Mr. Bandow's column are a red herring, as is his point on marine pollution. These provisions have been carefully negotiated and, in the case of seabed mining, renegotiated to protect U.S. interests.

The legal framework provided by the treaty is key to pursuing and protecting our national interests, which is why President Bush, his national security adviser, the chairman of the Joint Chiefs of Staff and virtually all other influential national leaders support U.S. accession to the convention. This is why it is essential for the Senate to approve U.S. participation in the Law of the Sea Treaty next Congress.

ADM. JAMES D. WATKINS
U.S. Navy, retired

LEON E. PANETTA

Co-chairmen
Joint Ocean Commission Initiative
Washington

Periodically, an opponent of anything related to the United Nations will repeat a claim spread around the web by an unethical writer that the LOS COnvention would give the United Nations control of 70% of the world's surface. This is false to the point of absurdity, but there are those who truly want to believe.

Here is a response I posted on the most recent blog to recycle this lie:

The need for a new law of the sea convention was conceived by the United States and the Soviet Union in 1965 as a way to accommodate the great power interests in freedom of navigation and the coastal state interest in extending national control over fishery and mineral development in the seas and on the continental shelves off their coasts. The Convention is an agreement among states as to how the old law of 'anyone can do anything anywhere in the sea' had to be changed to reflect coastal state interests and their power to protect them. In fact, the US was the first nation to challenge the old law of the sea in 1945 by proclaiming control over the resources of the continental shelf beyond 3 nautical miles.

While the parties to the Convention use it to delineate their rights and duties at sea, it in no way gives anyone control of "70% of the earth's surface." That makes a quotable line, but it is wrong. In fact, the convention recognizes coastal state control over large areas (with the US among the largest - the US Exclusive Economic Zone is larger than the land area of the United States). For the rest of the seas, and for navigation, in, under and over the EEZ, the Convention clarifies the freedoms of navigation that were only partially protected by the 1958 conventions on the law of the sea and were not protected at all by the eroding customary law dating back to the early 17th century that failed to address issues such as factory fishing ships, marine transport of nuclear materials, oil spills from commercial vessels and foreign mineral exploration of a nation's continental shelf.

The Law of the Sea Convention is no plot for UN control - it was designed and negotiated (and renegotiated to meet Pres. Reagan's guidelines) by the United States to protect US interests, and the US was the biggest winner in both ocean control and freedom of navigation. That is why President Bush, all of the joint chiefs and every living chief of naval operations support the Convention, as well as oil and gas developers and commercial fishing firms.

June 23, 2008

RATIFY THE LAW OF THE SEA TREATY

Dear Colleague:

Recently, 36 Members of Congress wrote to the Senate to oppose U.S. accession to the United Nations Convention on the Law of the Sea. While I respect the position of my colleagues, such opposition should be based on accurate representations of the treaty and its implications for U.S. national and economic security. This is an urgent matter and, as a former Vice Admiral in the U.S. Navy, I can attest that this is a national security issue. Senate failure to accede to the Convention this year will adversely impact our economy, security and the environment:

• The Convention will greatly enhance U.S. national security. The Joint Chiefs have urged accession now in order to codify “navigation and over-flight rights and high seas freedoms that are essential for the global mobility of our armed forces.” The Coast Guard needs accession in order to “interdict illicit drug traffickers and illegal immigrants far beyond our own waters.” And the framework of rules provided by the Convention will strengthen our coalition efforts to fight nuclear proliferation through the Proliferation Security Initiative and regional maritime security arrangements.
• Norway and Russia have already submitted claims to extend recognition of their continental shelves in the Arctic – which only State Parties to the Law of the Sea Convention may do. The United States stands to gain recognition of continental shelf extensions as far as 600 miles offshore. But without a seat at the table, we cannot present data to substantiate our claims or to challenge Canada’s forthcoming claim, which will likely conflict with one of our own. Given the extensive resource wealth in the Arctic seabed, nothing less than the energy security of our country is at stake.
• The convention safeguards imperiled marine habitats by strengthening the ability of nations to enforce environmental regulations within their national jurisdiction and empower them to stop harmful pollution and ocean dumping caused by previously unregulated ships. The convention also contains special measures to save endangered whales, salmon, and other marine mammals. It allows U.S fisheries and those of other coastal states to set limits within their 200 miles economic zone while protecting dwindling migratory fish stocks such as tuna and billfish on the high seas.

Please consider the following information when considering your position regarding this important treaty that could benefit U.S. national security, our economy, and the environment:

• If the U.S. were to join the Convention:
  • the United States could extend its exclusive sovereignty over living and non-living resources of the continental shelf up to 600 miles offshore.
  • the United States will have an effective veto over all critical decisions of the International Seabed Authority (ISA), which recognizes claims to resources in the seabed beyond the limits of national jurisdiction. This includes the budget, rules and regulations, and distribution of royalty payments. U.S. oil and gas and deep-sea mining industries are in favor of the royalties regime set up under the Convention, which does not provide for taxation of American citizens.
  • The 1994 Implementing Agreement to the Convention, which satisfied all of the Reagan Administration’s reservations, explicitly states that the mandatory technology transfer language in the Convention “does not apply.”
• Military activities are not subject to dispute resolution under the treaty. The United States has already agreed to provisions limiting military activities in the territorial waters of other states in the 1958 Convention on the Territorial Sea and the Contiguous Zone, to which the United States has been a State Party for over half a century. In fact, National Security Advisor Hadley has informed the Senate that joining is “essential to the formulation and implementation of the President’s National Security Strategy as well as the National Strategy for Maritime Security.”
• Negotiations on the Law of the Sea Convention were initiated by the U.S. and, as President Reagan said, are consistent with our balance of interests. Moreover, President Reagan clearly articulated U.S. objections to the original Convention, all of which were addressed in the 1994 Agreement. The diary entry quoted by my colleagues’ letter refers to the option of ratifying the treaty piecemeal, without the seabed mining provisions. President Reagan’s Secretaries of State, National Security Advisor, and numerous other officials in his administration agree that the Convention in its current form achieves all of U.S. goals in negotiations.

Again, as a former Vice-Admiral in the U.S. Navy, I can attest to the great benefits that accession would offer to our men and women in uniform – and the unnecessary peril to them and to U.S. interests that our absence from the Convention is creating. As the only nation that is truly globally deployed, the U.S. has a unique stake in the stability and reliability of international ocean law. We cannot continue to rely on customary international law, which drifts over time and whose application can be unpredictable, to guarantee our rights at sea.

I do not make these assertions merely on my own behalf. The views espoused in this letter are shared by all living State Department Legal Advisors, all living Chiefs of Naval Operations, as well as President Bush, his National Security Advisor and Council on Environmental Quality, and his Secretaries of State, Defense, Interior, Commerce, and Homeland Security. In addition, ratification is supported by a diverse coalition of business groups, environmental organizations, scientific and research institutes, and military reserve organizations.

I urge you to carefully consider the question of advice and consent to the United Nations Convention on the Law of the Sea Convention and support United States accession.

Sincerely,

JOE SESTAK
Member of Congress

The Law of the Sea Convention, along with the International maritime Organization and the Arctic Council, form the core of the regime that governs the Arctic. In this regime the five nations that border the Arctic Ocean have the primary responsibility to managing activities in the region, including both development and environmental protection.

While the declaration recognizes the responsibilities on the five states that result from the legal regime, it also recognizes that other states will participate in development and protection under the provisions of international law and through the international Maritime Organization, the Arctic Council and other relevant international fora.

View the Ilulissat Declaration of the five Arctic States, May 28, 2008. What the declaration does, however, is make clear that there will be no negotiation of an alternative regime for the Arctic Ocean that would be contrary to the provisions of the LOS Convention.

Bob Ballard speaks about ocean exploration on the TED Network:

Heritage Foundation, April 15, 2008

Edwin Williamson: “Edwin Williamson, Sullivan and Cromwell, You’re here in the bowels of one of the most outspoken critics of the Law of the Sea Convention, Heritage web site claims, for example, that the ratification of this treaty will undermine our military and intelligence operations – shouldn’t you take this opportunity to comment on the nature and quality of this criticism and the importance of ratification of this treaty?”

Admiral Mullen: “I think it’s very important that we ratify this treaty, I am in the military and I don’t subscribe to those views, and in fact, I think that ratification of this treaty offers an opportunity to participate, and part of this for me is the world that we’re living in now versus the world when that treaty came online initially back in the early 80s I think and there were some challenges with that and those have been repaired, those have been changed, not the least of which was the issue tied I think to mineral rights… I’m someone that grew up around the world and engaging… and I’m very sensitive quite frankly, to the sea aspect of this and the constraints that certain countries could have on the freedom of being able to navigate around the world in a world that’s getting smaller not physically but certainly from the global perspective… so I think those rights that are tied to what’s on that treaty are very important, not just now, but in the future. We are one of the very few outliers in terms of ratification of that treaty, and my view is I think it’s more important to be at the table than to be outside trying to make your case out there and it’s an important one to us in the military.”

In compiling the list of endorsements, letters, articles and testimony in support of the Law of the Sea Convention, I note that the letters from the Chiefs of Naval Operations to the Senate leadership and their statements to Senate Committees demonstrate support for US accession to the Convention from the officers who served as Chief of Naval Operations over the past four decades:

Name	Period as CNO	Endorsement
ADM Gary Roughead	2007 – Present	CNO Confirmation Hearings
ADM Michael Mullen	2005 – 2007	2007 CJCS Confirmation Hearings
ADM Vern Clark	2000 – 2005	2004 Testimony
ADM Jay L. Johnson	1996 – 2000	Letter in 2000
ADM Frank B. Kelso II	1990 – 1994	1998 Letter
ADM Carlisle A.H. Trost	1986 – 1990	1998 Letter
ADM James D. Watkins	1982 – 1986	1998 Letter
ADM Thomas B. Hayward	1978 – 1982	1998 Letter
ADM James L. Holloway III	1974 – 1978	1998 Letter
ADM Elmo R. Zumwalt	1970 – 1974	1998 Letter
ADM Thomas H. Moorer	1967 – 1970	1998 Letter

This list includes 11 of the past 12 Chiefs of Naval Operations (Jeremy Boorda, CNO from 1994 to 1996, died before the opportunity to support the convention arose). The careers of the men represented span the post-World War II period in which the old notion of a narrow territorial sea and a vast ocean in which coastal states had little say over offshore activities changed almost beyond recognition. As such, they developed a thurough understanding of the importance of the Convention in protecting navigation rights that have been tested and threatened by coastal state encroachment.

In the April 13th, 2008 edition of the Amarillo Globe-News, Professor Syed Tariq Anwar of West Texas A&M University presented a case for US leadership in protecting the Arctic. Among his points was this comment regarding the Law of the Sea Convention:

From a global business perspective, we need a unified Arctic plan based on an acceptable treaty. Being the most powerful nation on earth, it is expected that the U.S. will be supporting the Law of the Sea Treaty, which was favored by the Senate Foreign Relations Committee by a 17-4 vote last November. It is also critical that we favor the 1982 United Nations Convention on the Law of the Seas (UNCLOS). Many people and organizations are endorsing this treaty. Two former secretaries of state (James Baker and George Shultz), former admirals, various industry organizations, politicians and business leaders from the U.S. have supported the treaty. For the U.S., the contentious treaty issues continue to be national sovereignty and security, coastal state extension and the continental shelf beyond 200 miles, taxation, exploration and licensing rights, and problems of eminent domain.

Law of the Sea debates can be both intense and boring - after all, the negotiations were once selected as one of the 10 Most Boring Things in New York City. Every once in a while it helps to look at the subject from a new perspective.

Gail Collins at the New York TImes gives just such a look in her column of November 3rd. She gives a quick snapshot of the opposing sides:

...While the pros will tell you all about the importance of having a rational system for arbitrating disputes over the Alaskan continental shelf, the cons spin up conspiracy theories about how the International Seabed Authority will force us to give up our cars and cancel the war on terror.

Just take my word. The Navy wants the treaty. Greenpeace wants the treaty. The oil and gas industry wants the treaty.

Her real point is aimed at the candidates for the GOP presidential nomination. After poking John McCain for his campaign conversion, she shines some light on others in the crowd:

The other candidates have issued statements that seem to reflect an inability to come up with any rational arguments. Rudy Giuliani said he “cannot support the creation of yet another unaccountable international bureaucracy that might infringe on American sovereignty and curtail America’s freedoms,” and Fred Thompson roused himself long enough to announce that “the efforts of treaty proponents would be better spent reforming an ineffective, unaccountable and corrupt United Nations.” Mitt Romney’s spokesman just said Mitt has “concerns.”

Meanwhile, Mike Huckabee called the treaty “the dumbest thing we’ve ever done.”

Pause now to make a list of things we’ve done that you think might be dumber.

Loreliei Kelly, writing at Democracy Arsenal, discusses linkages between national security and the environment. She points to the Law of the Sea Convention as an example of linkages between security and the environment, and other issues as well.

She also points out the difficulty of addressing these issues, each difficult on their own and much more so for their interlinkages. The problem is made more difficult by opponents of the convention who base their opposition on faulty interpretations of the convention, misinformation and a record of failure in building productive relationships with other countries. Her two sentence summary of the issue of Senate approval of the Convention is:

There is a huge upside to America signing this treaty versus a negligible downside. At the end of the day, the Law of the Sea detractors are global anti-socials whose preferred method of interaction for nearly every international problem is physical intimidation.

Lorelei is right - the LOS Convention greatly expands the area of the ocean and continental shelf under sovereign US control, it provides the basis for a comprehensive regime for the Arctic that protects our sovereignty, our security and our sustainable use of resources. It creates the legal regime that can allow US industry to rebuild itself as a leader in deep seabed mining. At the same time, it protects our rights to transit critical international straits, gives access to distant water fisheries, sets requirements for countries from Russia to the least developed states for the protection of the marine environment, and provides ways to settle disputes without recourse to armed conflict. And it accomplishes all this at an insignificant cost while even improving relationships with our allies, neighbors and maritime partners.

For many people who are considering the Law of the Sea Convention for the first time, the question "What Would Reagan Do?" takes on special interest. Former advisors who once stood to Reagan's right say he would oppose the Convention, but Reagan's senior foreign policy advisors and the staff that prepared his decision memorandum on the Convention say he would support the Convention once it was modified according to his criteria in 1994.

National Journal published a story last Friday that addresses this issue. It is an interesting story that should be read by anyone interested in Reagan's legacy in foreign policy and the attempts by some to stretch his legacy to pet causes. The conclusion, however, leaves us all on our own to resolve the issue:

As for Reagan, it isn't clear what he would say. He believed in guns, but he also believed in diplomacy. He undertook a massive buildup of American arms, but he also negotiated arms reductions with the Soviet Union. He distrusted the United Nations, but he believed in American business. People can ask what he would do, but he's dead. He can't answer.

San Diego Union-Tribune
October 14, 2007

Debating 'LOST' - Should The U.S. Ratify The Law Of The Sea Treaty?

Yes: A plus for the Navy, U.S. maritime industries

By James D. Watkins and Leon E. Panetta

As politicians in Washington, D.C., struggle to find common ground on issues of national importance, one that is ripe for action - that enjoys overwhelming bipartisan support - is United States accession to the Law of the Sea Convention. The convention is vital to our national security interests, sovereignty, maritime industry and our leadership role in international ocean policy.

Thankfully, recent hearings before the Committee on Foreign Relations have rekindled attention within the Senate and the opportunity to take action on a treaty that would greatly advance U.S. interests is easily within the Senate's grasp.

Support for the convention comes from a broad, bipartisan coalition of political, military, economic, academic and environmental leaders. This support is clearly articulated in a letter sent to Senate Majority Leader Harry Reid and Minority Leader Mitch McConnell on Sept. 24 from 101 prominent leaders, including 16 former Cabinet-level officials; nine governors; representatives of major oil and gas, commercial shipping and fishing industries; and the environmental community. The letter urges the Senate to expeditiously approve U.S. accession to the convention, stating "[i]t is clear that accession will protect and enhance our country's sovereign military, economic, and environmental interests."

The convention has the support of President Bush, the Joint Chiefs of Staff, the national security adviser and the secretaries of Defense, State, Commerce, Homeland Security and Interior. A personal statement issued by President Bush on May 15 states that "[j]oining will serve the national security interests of the United States, including maritime mobility of our armed forces worldwide. It will secure U.S. sovereign rights over extensive marine areas, including the valuable natural resources they contain. And it will give the United States a seat at the table when the rights that are vital to our interests are debated and interpreted."

Gaffney Lost on Law of the Sea

by Martine Apodaca

The UN Convention on Law of the Sea, which came into force in 1994 and has been ratified by 154 countries and the European Community, has been gathering steam in the U.S. Senate, is widely supported by both government and business leaders, and appears to be on track for ratification by the U.S.

This seems to be frightening a fringe group led by Frank Gaffney, a neocon columnist for the Washington Times and the National Review online, who has launched a nonsensical attack on the effort for U.S. ratification, claiming that the bid is a "UN power grab" and that US accession would transform the UN into a "world government" and force the United States to surrender sovereignty and immense resources in the sea and on the sea bed. Those unfounded views are reflected in Gaffney's column yesterday in the Washington Times.

Gaffney apparently thinks he knows how to protect U.S. national and security interests better than the President, the Secretary of the Navy, and the combined leaders of the U.S. petroleum, fishing, mining, and shipping industries. That's not a bet that the U.S. Senate should take.

Rather than acknowledge and debate the vast military, economic, and environmental benefits of UNCLOS, Mr. Gaffney chooses to scare-monger about "international taxes" and "world government." UNCLOS establishes neither. Mr. Gaffney also doesn't acknowledge that an international race for oil, fish, diamonds and shipping routes has begun and is being accelerated by global warming as the arctic ice cap recedes. At stake are a possible 460,000 square miles of Arctic seabed that could hold as much as 25 percent of the world's undiscovered oil and gas, valuable commodities like gold, diamonds, fishing stocks, and lucrative freight routes.

The race is on.

Other nations are moving to take advantage of this situation. In August 2007, Russia planted its national flag on the seabed beneath the North Pole, calling international attention to a dubious claim to ownership of the North Pole and the Lomonosov Ridge -- with substantial potential oil, gas, and mineral deposits. The Canadians are staking claims in the arctic as well. In August 2007, Canada's Prime Minister Stephen Harper set off on a three-day tour of the region and announced plans to build two new military bases to reinforce Canada's territorial claims, and the Canadians are spending $7 billion on new arctic patrol vessels.

The U.S., however, has taken itself out of the race; only nations who are party to the Convention can make such claims -- or challenge the claims of others. Thus, while nations struggle for control of the arctic, the U.S. is sitting on the sidelines.

In truth, Mr. Gaffney is nearly alone on the far fringes in opposition to the Convention. Perhaps that is why he is making such desperate and outlandish arguments.

I've left Gaffney's sovereignty claims until last because they are perhaps the most ridiculous.

The Convention has, in fact, been called, correctly, a U.S. land grab because it expands U.S. sovereignty and sovereign rights over extensive maritime territory and natural resources off its coast. It provides a 12-mile territorial sea subject to U.S. sovereignty, U.S. sovereign rights over resources within a 200-mile exclusive economic zone, and U.S. sovereign rights over offshore resources (including minerals) to the outer edge of the continental margin, which extends well beyond 200 miles in several areas, including up to 600 miles off Alaska. This Convention clearly expands our sovereignty.

The Convention has a built-in, dispute-resolution forum where nations can come together to peacefully and efficiently settle disagreements. The deep seabed mining provisions would not apply to any areas in which the U.S. has sovereignty or sovereign rights. Further, these rules will facilitate mining activities by U.S. companies. Investors would have the legal certainty of the convention to protect their claims and investments. And the navigational provisions ensure that U.S. military and commercial vessels have worldwide maritime mobility with the backing of international law and not subject to the whims of any nation.

Senate ratification of the convention is inarguably in America's best interest. Scaremongering to the contrary is simply irresponsible.

September 27, 2007

NewsDay published an editorial today endorsing the Administration's request for Senate advice and consent to join the Law of the Sea Convention.

An impressive coalition of environmental, military and business leaders urged the United States Senate this week to do what it should have done 25 years ago: become a party to the United Nations Convention on the Law of the Sea. Far from eroding American sovereignty, as critics have oddly maintained, this agreement can protect the nation's vital interests on a broad array of issues - but only if we're at the table, along with 155 other nations.

After reviewing the history of US leadership in creating the Convention, its endorsement by over 100 civic leaders, headed by Admiral James Watkins and Leon Panetta, and the US interests promoted by the Convention in establishing our claim to the Arctic seabed, NewsDay went on to say:

Even President George W. Bush, no fan of international accords, supports this move. Let's hope he shows leadership and pushes the Senate to get it done.

23 September, 2007

Law Of The Sea: An orderly world
SEATTLE POST-INTELLIGENCER EDITORIAL BOARD

In hearings this week, the U.S. Senate will again consider the long-postponed ratification of the U.N. Convention of the Law of the Sea. The Senate should sail beyond the conservative fantasies about a loss of sovereignty.

Without the treaty, the U.S. has no ability to assert its sovereign rights over areas offshore from Alaska. By ratifying the treaty, which came into force internationally in 1994, however, the U.S. can claim exclusive economic rights 230 miles off the coast, where large oil reserves may lie.

As Sen. Maria Cantwell advocates, the country also needs to update the Coast Guard's Arctic icebreaking fleet, based in Seattle. As the Arctic sea ice disappears because of global warming and wind fluctuations, there will be more need than ever for researching and assisting shipping in the region.

Already, the reduction in the ice cover is setting off jockeying for claims in the Arctic by Russia, Canada and other countries. Even if the oil reserves are less than suspected, economic and environmental interests increasingly will come into play.

Conservatives like to complain about international law limiting U.S. sovereignty. International law's real effects may be modest, but they tend to create a safer, more orderly world. While the scaremongering about the United Nations continues, the Bush administration and the U.S. military are supporting ratification of the Law of the Sea treaty. That's a sure sign that Senate action is long overdue.