Bilateral treaties are not an alternative to UNCLOS
Bilateral arrangements between states over ECS claims are not a viable alternative to the existing UNCLOS regime. The comprehensive international UNCLOS regime was proposed in the first place as a way of reducing the transaction costs of formulating all of these bilateral treaties. Additionally, they would have dubious legal validity, especially in regions like the Arctic where all other nations besides the U.S. have already ratified the treaty.
Problematically, despite the increasingly obvious nature of the Arctic jurisdiction quandary, there exists a fair degree of disagreement on how to view Arctic both within the channels of government and academia.98 These fundamental differences of opinion doom a potential bilateral solution, because a treaty between one or more states would ￼￼necessarily require disambiguation and a clarification on where each party stands.99 At a basic level, bilateral negotiations and a treaty mechanism will fail for three primary ￼￼reasons. First, there is simply too much at stake in terms of both economic benefit and environmental risk: no state wants to assume liability for the wide range of environmental catastrophes that may befall energy developers,100 nor does any state want to negotiate away a potential energy windfall either.101 Thus, given the great uncertainties of the Arctic, there is little incentive for states to constrain their EEZ claims ￼￼￼￼via treaty, even though the need for a governance regime for the Arctic is becoming all the more necessary as time goes on. Second, the diplomats and leaders of the coastal Arctic states have explicitly provided in one form or another that the current status quo is enough, thus a bilateral treaty is unlikely to arise on its own.102 Furthermore, a bilateral treaty would likely undermine whatever cooperation may exist between the ￼￼coastal Arctic states by forcing a confrontation over the various boundaries, a confrontation that no one wants to have. Third, despite scholars' and politicians' insistence that nothing is wrong in the Arctic, the truth may be a little more nuanced for several reasons. Historically, the Arctic has been a theater of military tension and political gamesmanship,103 and despite current trends, there is no geopolitical guarantee that such tensions may not arise again.104 To illustrate this point, Arctic powers have begun to project their military power in the High North, for example, Russia has been building a large fleet of icebreakers to guard their interests.105 In this vein perhaps, the Russian Federation may have the most to lose and the most to gain in the Arctic Ocean106, even though Russia's interests may be in direct conflict with some of the interests of Scandanavian states.107 Thus, not only is a bilateral solution untenable, but there is some evidence to suggest that a multilateral mechanism may bear fruit.108 To solve the problem of Arctic territorial claims, multilateral fora like the Arctic Council and the NATO-Russia Council may be excellent environs for crafting a new solution.
Concededly, the opposing argument is correct, albeit from a functional perspective, that the US does not need to achieve the universal international recognition offered through the CLCS in order to commercially exploit the resources that lie in its ECS. For example, since the US-Mexico Treaty demarcated the areas of the ECS between all the other States with a vested interest, ostensibly, a CLCS submission would be unnecessary to achieve the level of “certainty” required for the multi-billion dollar investment needed to begin resource extraction in the Gulf of Mexico. However, such a jingoistic perspective is only true insofar as the industries involved are willing to risk commercial exploitation in the US ECS without the international legal title offered, since they could just get behind a strong US Navy to back up their claims. Currently though, no company is willing to take such a massive multi-billion dollar risk.86 The US-Mexico Treaty has only enabled the granting of oil and gas leases in the US ECS; no drilling has commenced in the US ECS located in the Gulf of Mexico, an area known as the “Western Gap."87 Bilateral treaties alone are insufficient for such a complex endeavor.88
UNCLOS opponents habitually point to the 2000 US-Mexico maritime delimitation treaty, portraying it as an irrefutable example of why the United States does not need UNCLOS in order to exploit the resources within its ECS; therefore, the “legal certainty” offered by a CLCS ECS submission is not as vital as UNCLOS proponents would suggest.77 But this argument is flawed in that it relies on a paradigmatic conflation between two separate and distinct UNCLOS procedures: ECS delineation by a coastal State and maritime boundary delimitation between two or more States.78 These two procedures are not the same thing, nor do they entail the same rights and privileges.
Article 76 was drafted with the intent of creating a universal mechanism in which the outer limits of a State's continental shelf would eventually be permanently fixed so as to exclude any future expansion of national jurisdiction into the international seabed area.79 Article 76(10) expressly provides that the provisions of article 76 are “without prejudice” to the question of continental shelf delimitation between States with opposite or adjacent coasts.80 Specifically, article 76(10) guarantees that a submission of an ECS claim by one State will not affect the rights of another State where the delimitation of their shared continental shelf remains at issue.81 Standing alone, this may not be dispositive of much, but consider for a moment that out of the twentynine areas in which continental shelves exist beyond 200 nautical miles, only seven of those areas involve jurisdictional claims exercised by a single State.82 In other words, the drafters of article 76 were aware of the potential for conflict between States with competing maritime claims and, thus, included the “without prejudice” language so as to encourage greater treaty accession.83 Consequently, article 76(8) and (9)—concerning the final and binding nature of a delineated ECS- are thus rendered without legal effect if relied upon in a delimitation dispute where an overlapping ECS becomes a point of contention between two coastal States.84 In fact, the entire ECS framework outlined in article 76 becomes essentially moot within the context of an ongoing delimitation dispute between two coastal States.85 Thus, under international law, ECS delineation and ECS delimitation are two entirely separate processes where the disposition of one has no legal effect on the results of the other. It is axiomatic, therefore, that if the legal processes differ then so do the legal statuses—each carrying with them different rights and privileges—granted through the conclusion of each procedure. Accordingly, it is in the interest of UNCLOS opponents to promote the public misperception that delimitation and delineation are the same constructs as far as UNCLOS is concerned, because only then can they further promulgate the false notion that nothing is to be gained by joining the treaty.
Additionally, entering into a treaty with other countries in which each country would recognize each other’s claim relating to deep seabed development would be of dubious legal validity. Article 137(3) of the Convention provides that “no state or natural or judicial person shall claim, acquire or exercise rights with respect to the minerals recovered from the Area except in accordance with this part. Otherwise, no such claim, acquisition or exercise of such rights shall be recognized.”133 Thus, entering into a treaty with other Arctic nations which have ratified the Convention and upon which the Convention is binding would not assure the United States access to mineral resources beneath the Arctic Ocean.134
The renegotiated International Seabed Authority, established under the treaty, provides property rights for U.S. firms to develop deep-sea mining sites that require security of tenure before they can justify the large investments required. Further, the treaty grants the U.S. the only permanent veto as to how the modest royalties, collected in return for secure property rights, are to be distributed to state parties.
Most troubling, when asked by the chairman how he would provide security of tenure sought by U.S. firms, Mr. Rumsfeld suggested that they should operate through joint ventures with other nations. His answer, implicitly understanding that U.S. nonadherence can in no way alter the international regime now in force for 161 countries, and that our firms would still operate under the treaty regime, needlessly throws away U.S. jobs, Treasury tax receipts, and critical U.S. access to strategic minerals. It would also mean no U.S. veto over any distribution of revenues, amendments to Part XI, or rules and regulations for mining.
The treaty provides property rights for miners in an area of the ocean not under the sovereignty of any nation. Absent U.S. adherence, U.S. firms cannot mine the deep seabed—as they will not have the security of tenure necessary to expend the $2 billion to $3 billion for a deep-seabed mining operation. These operations are of utmost importance for the U.S.—at stake is U.S. access to strategic minerals of copper, nickel, cobalt, manganese and rare earths worth about $1 trillion.
The Western Gap agreement has clear implications for the Arctic, where the United States shares a potential extended continental shelf with both Russia and Canada. UNCLOS opponents suggest that questions regarding international legal title to the U.S. potential extended continental shelf in the Arctic will be resolved conclusively when the United States enters bilateral agreements with Russian and Canada respectively.156 As simple and therefore attractive as this position may be, it begs several questions.
Under what legal authority would the Arctic neighbors have the right to divide and claim for themselves an area lying, at least in theory, beyond their respective national jurisdictions? Even assuming a legitimate legal basis to claim their extended continental shelves and delimit them bilaterally, what basis would the states have for desiring to and concluding their agreements outside the UNCLOS framework, including ignoring Article 82 royalty payments? Finally, even if Russia and Canada— both UNCLOS member states—choose to comply with UNCLOS on their respective sides of delimited shelves, might they object to the United States not doing so on its side, and, if so, would they pursue their objections? And how might the outer limits of the U.S. extended continental shelf in the Arctic be determined given the geographic differences from the Western Gap situation where there were only two geographically opposite states with no third state or area interests involved?
The simple answer is that only by acceding to the convention can the United States obtain its full continental shelf rights in the Arctic.
When discussing the Arctic legal regime, the whole is not the sum of its parts. Returning briefly to the Ilulissat Declaration, the coastal Arctic states agreed together to leave the Arctic region largely unregulated, a problematic course of action given the increasing level of activity in the region.90 In addition to remembering the inadequacy of the Ilulissat Declaration, especially as perhaps the exemplification of the failures of purely bilateral talks, there are some general concerns to also consider when evaluating the salience of a bilateral solution. First, any solution crafted through using UNCLOS is a erroneous course given the US' reluctance to ratify the treaty.91 Second, any solution to the Arctic problem is only as effective insofar as the sovereigns are willing to implement that solution92, and given the previously noted insistence on the Ilulissat Declaration's sufficiency, why would states then decide to negotiate a new regime amongst ￼￼themselves bilaterally? Third, communal concepts like the “common heritage of mankind”93 or mediation processes are likely to fail because Arctic states not only disagree on the legal standards upon which such mediation would be made94, but it is also unclear under customary international law (as codified by UNCLOS) about what ￼￼￼￼level of responsibility each state owes to the other given the geographic nature of the Arctic Ocean.95 Fourth, bilateral agreements and negotiations have failed to truly resolve some key border disputes, and if after all of this time, why should the international ￼￼￼community assume that the states will solve these issues sua sponte?96 Finally, and most perniciously, the nature of the substantive problems in the Arctic virtually guarantee ￼￼￼that bilateral legal methods will be unable to achieve a resolution. Mostly because each of the state's individual policy goals are inopposite to other state's goals, and because each state may believe that it can achieve a superior outcome through its own means than through voluntary dispute resolution.97 This final point, of course, opens up a large range of additional issues that are surveyed below.