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The convention’s provisions on environmental protection address all sources of marine pollution, from ships and waste disposal at sea, in coastal areas and estuaries, to airborne particles. They create a framework for further developing measures to prevent, reduce, and control pollution globally, regionally, and nationally, and they call for measures to protect and preserve rare or fragile ecosystems, the habitat of depleted, threatened, or endangered species, and other forms of marine life.
Those facts alone argue strongly for U.S. accession. To answer the question “Why now?” however, a daunting set of comparatively new ecological threats must be considered. Climate change and the burgeoning industrialization of the oceans are giving rise to severe environmental stresses that require an urgent global response. U.S. leadership is critical, not only in undertaking the research that will help us understand the effects of climate change in the marine environment and related mitigation and adaptation options, but also in tackling the problems head-on. In many respects, such leadership cannot be fully realized without accession to the convention.
The vastness of ocean space and the limits of our knowledge concerning the oceans’ future economic potential also make it critically important that the United States plays a central role in the future implementation of the convention. The convention facilitates the conduct of marine scientific research to expand understanding of the marine realm. As knowledge increases and as technology advances, the oceans may hold enormous, and as yet only dimly perceived, potential. When coupled with America’s unrivaled capacity for technological innovation, new ocean uses may become essential to helping drive economic prosperity for future generations. In the midst of a historic economic crisis, the United States needs to position itself by joining the treaty in order to secure its share of ocean industries of the future and the high- paying jobs they will create.
The economic importance of the energy resources trapped under the Arctic seabed is difficult to overstate. In 2007, Alaska produced 722,000 barrels of oil per day.96 This is only a fraction of the state's 1988 production peak of 2,017,000 barrels of oil per day.97 Today, Alaskan oil production accounts for more than sixteen percent of all U.S. production; in 1988, it was more than a third. Natural gas is a significant energy resource in Alaska (433.5 billion cubic feet are marketed from Alaska per year) but contributes only 2.2% to the U.S. market.98 U.S. Arctic oil exploitation pales, however, in comparison with that of the other Arctic nations.99 Norway, for instance, has produced dramatically more oil from its Arctic sea beds than the United States has over similar periods. In 2007, Norway produced 2,564,884 barrels of oil per day compared to Alaska's mere 722,000 barrels per day; approximately 500,000 barrels per day more than Alaska's 1988 peak.100 The other Arctic nations each produce significant quantities of oil as well.101
In spite of the fact that the United States has not formally adopted UNCLOS, the applicability of the Convention's Articles governing sovereignty over the continental shelf to the United States-namely Articles 76 through 85-is for several reasons not seriously in dispute. First, many writers contend that Article 76 has become a defacto part of customary international law because of its wide adoption-either via ratification of the Convention itself or via unilateral laws modeled after the Convention.47
Second, the United States has repeatedly demonstrated its intent to be bound by the provisions of UNCLOS not relating to Part XI, which prohibits mining on the deep-sea beds. For instance, after refusing to sign the treaty in 1983, President Reagan announced his intention that the United States nevertheless act in accordance with UNCLOS.48 Although it never reached a floor vote, President Clinton referred UNCLOS to the Senate Committee on Foreign Relations in 1994.49 The Bush administration similarly pushed for ratification of the Convention, likely because it found "that the Convention's navigational and national security benefits far outweigh any costs to the U.S."50 UNCLOS has found similar support in the decisions of the federal courts.51
The same chemical, organic, and radiological pollutants that contaminate the ecosystems of the rest of the planet pose particular problems for the Arctic. The freezing temperatures of the Arctic, both on land and at sea, prevent pollutants from breaking down into non-toxic constituent components.20 For instance, although the Arctic nations stopped using leaded gasoline more than a decade ago, the measurable lead in fish and wildlife in the area has not declined.21 In addition to the cold, the currents which flow to the Arctic from all over the world bring as much as 60% of the pollutants ultimately sited in the Arctic from somewhere else.22 Thus, the failure to include non-Arctic nations in future Arctic clean-up efforts would leave the majority of incoming pollutants unaddressed.
It is also important to note that UNCLOS does not treat intelligence collection as a threat or use of force against the sovereignty, territorial integrity or political independence of the coastal state in violation of the U.N. Charter. Article 19(2)(c) clearly distinguishes collecting intelligence from "threat or use of force," which is discussed as a separate prohibited activity in Article 19(2)(a) for ships engaged in innocent passage. This issue was resolved by the Security Council in 1960 following the shoot down of a U.S. U-2 spy plane near Sverdlovsk, Russia. An effort by the Soviet Union to have the Security Council decide that the activity of the U.S. spy plane was an act of aggression was soundly defeated seven to two (with two abstentions), thereby reaffirming the legality of peacetime intelligence collection under the U.N. Charter.47 This view is shared by most experts.4
In short, the Soviet Navy was a true global blue water navy. Its ships operated around the world with impunity and erased the image that the USSR was solely a continental power. The PLA Navy has not achieved a similar global status. In this regard, INCSEA also gave the Soviet Navy something the Red Army didn't have - a bilateral relationship with its U.S. counterpart. Since the Soviet Union had traditionally been considered a land power, INCSEA elevated the prestige of the Soviet Navy at home and abroad.30 An INCSEA agreement with the PRC would significantly enhance the stature of the PLA Navy by suggesting it was a naval power on par with U.S. and former Soviet Navies. It would also force the U.S. Navy to treat the PLA Navy as an equal, something which it clearly is not. Perhaps more importantly, however, the prestige gained by signing an INCSEA agreement could lead the Chinese government to allocate a larger percentage of the defense budget to the PLA Navy. In 2010, the PLA Navy was already receiving more than one-third of a defense budget that has experienced double-digit growth for the last twenty years.31