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

Authors: Scott G. Borgerson, and Thomas R. Pickering, Vice Chairman, Hills & Company
December 23, 2009

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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.

By being the last significant maritime nation in the world to formally join the [Law of the Sea] convention, 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.

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.

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.

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.

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