U.S. can't secure claims to Arctic resources through CLCS as a non-party to UNCLOS
The United States cannot currently participate in the Commission on the Limits of the Continental Shelf, which oversees ocean delineation on the outer limits of the extended continental shelf (outer continental shelf). Even though it is collecting scientific evidence to support eventual claims off its Atlantic, Gulf, and Alaskan coasts, the United States, without becoming party to the convention, has no standing in the CLCS. This not only precludes it from making a submission claiming the sovereign rights over the resources of potentially more than one million square kilometers of the OCS, it also denies the United States any right to review or contest other claims that appear to be overly expansive, such as Russia’s in the Arctic.
Quicktabs: Arguments
The Continental Shelf: There is an extensive continental margin beyond 200 miles off the coast of Alaska and elsewhere off the coast of the United States. As a party to the Convention, we will be able to submit the results of our scientific studies regarding the seaward limits of the continental margin to the Commission of experts established by the Convention. Once we are satisfied with the outcome of our exchanges with the Commission, we can exercise the right to declare limits that are final and binding on all parties to the Convention. This will increase the certainty of our control and the willingness of private capital to make the substantial investment required to explore and exploit areas as deemed suitable for development.
Moreover, as a party to the Convention, we acquire the right to nominate and participate in the election of members of the Commission, as well as the right to comment on both the procedure and the substance of the Commission’s work. These rights are important because we have a major interest in influencing the review of continental margin claims around the world before they become final and binding, in order to ensure that reasonable claims are confirmed and made more secure, and that excessive claims do not limit our own access to the areas in question for economic, scientific, or other purposes. Mr. Chairman, the Canadian and Russian Governments have every right to seek to use the Commission to advance their interests. But Alaska is caught in the middle, and our capacity to protect our interests off Alaska and in the Arctic generally will be enhanced by getting on the inside and making sure our concerns are heeded.
The absence of the United States from the UNCLOS regime is beginning to significantly hinder US ability to explore and exploit the rich resources lying beneath its extensive ECS-this much is incontrovertible.10 Today, no Arctic coastal State, relying solely on the outdated Discovery Doctrine, may simply declare that its seabed extends to the North Pole and then expect to possess exclusive jurisdiction over that area.11 Instead, there lies within UNCLOS a specific procedure whereby a State may obtain international legal title over its ECS; this international title affords a State the exclusive right to exploit the natural resources lying deep below the seabed and subsoil, beyond that of a State's 200 nautical mile Exclusive Economic Zone.12
In responding to ECS submissions, the most diplomatic response would seemingly be for the US to operate within the UNCLOS framework–filing its own claim with the ISA Commission on the Limits of the Continental Shelf (CLCS)—since virtually every legal question involving the Law of the Sea today is governed by the UNCLOS Convention.13 The salient benefit for any State to make an ECS submission to the ISA is to ultimately obtain universal legal recognition of its exclusive sovereignty over the full extent of its ECS beyond that of 200 nautical miles. However, for years the United States has been left out of the ECS procedure because it remains outside the UNCLOS framework and, therefore, may not participate in the ongoing work of UNCLOS governing bodies. American absence from UNCLOS has been championed by an outspoken minority that prefers to rely on naval supremacy, outdated declarations, and a preference for gunboat diplomacy so as to assure that US national maritime interests are maintained.14
UNCLOS opponents argue, almost sophomorically, that the United States already enjoys and exercises full jurisdiction and control over its ECS and thus does not need the approval of an international bureaucratic body such as the CLCS.73 The authority for this position derives primarily from a reliance on customary international law, US domestic law, and bilateral maritime delimitation treaties the United States has entered into.74 Admittedly, this argument is doctrinally difficult to overcome if one simply chooses to rely on a strong US Navy to project power and assert US interests. However, in spite of a misguided reliance on “hard power”,75 a misunderstanding of customary international law,” and the misapplication of article 76; the practical considerations put forth by US industry make resource exploitation in the US ECS-outside of the UNCLOS framework—a nearly unattainable objective.
The United States cannot currently participate in the Commission on the Limits of the Continental Shelf, which oversees ocean delineation on the outer limits of the extended continental shelf (outer continental shelf). Even though it is collecting scientific evidence to support eventual claims off its Atlantic, Gulf, and Alaskan coasts, the United States, without becoming party to the convention, has no standing in the CLCS. This not only precludes it from making a submission claiming the sovereign rights over the resources of potentially more than one million square kilometers of the OCS, it also denies the United States any right to review or contest other claims that appear to be overly expansive, such as Russia’s in the Arctic. This is especially urgent this year, as the commission will review an influx of claims expected in May 2009, the deadline for twenty- six states to make their submissions based on the procedural clock that began ticking when they ratified the convention. (The United States would have ten years to make its claim if it were to join the convention.)
Related to the increased international activity and interest in the Arctic described above, the fact that the United States has signed but not yet ratified the United Nations Convention on the Law of the Sea18 will become even more problematic with time and as more states call for international recognition of their Arctic claims (see Box 1.3). For example, the five Arctic coastal states—Canada, Russia, Norway, Denmark (based on its territory Greenland), and the United States—are in the process of preparing Arctic territorial claims for submission to the Commission on the Limits of the Continental Shelf. Russia’s claims to the Lomonosov Ridge, if accepted, would grant Russia nearly one-half of the Arctic. By remaining outside of UNCLOS, the United States seriously compromises its ability to take part in negotiations regarding the claims of other nations.19 UNCLOS provides a legal framework for the settlement of such disputes.
The inevitable market incentive to exploit Arctic resources already is experiencing growing pains. In 2008, a Las Vegas based company called Arctic Oil & Gas levied a claim to virtually all the seabed petroleum in the Arctic, which it estimates to be around 400 billion barrels of oil.n331 While acknowledging that the vast petroleum deposits are the "common heritage of mankind," the firm nevertheless filed a claim with the UN for exclusive Arctic rights.n332 Even in spite of American abstention from UNCLOS, Arctic Oil & Gas argues that the polar region needs a private "'lead manager' to organize a multinational consortium of oil companies to extract undersea resources responsibly and equitably.n333
Nevertheless, it is doubtful that anything will come of such claims given their lack of international recognition under UNCLOS. In the absence of the legal certainty that the Convention provides for sovereign rights over an extended continental shelf, it is unlikely that enough U.S. companies will be willing or able to secure the necessary financing to exploit Arctic resources, or to keep other countries from exploiting them.n334
The Convention provides institutional methods through which the other Arctic States are able to protect their rights under UNCLOS, which may well come at the expense of American interests. Instrumental bodies such as the ISA's executive body, the Council, will assume a highly influential role in the Arctic. In particular, the Council is responsible for promulgating the policies that would apply to Arctic mining. n335 The ability of the U.S. to play a part in the Arctic and protect against potentially inimical mining policies require participation in the Authority, and in the decisionmaking Council in particular. n336 The CLCS presents a similar problem. The CLCS process is kept secret, and only Member States may appoint commissioners to [*241] take part in the decision and review the data submitted by other countries. n337 Acceptance or rejection of a shelf proposal is final, and such a crucial decision may well depend on a variety of subjective factors, such as "the knowledge, the experience, and occasionally the bias of the scientist involved." Without an American commissioner, the U.S. cannot evaluate the content or feasibility of continental shelf submissions set to be filed by the other Arctic States. The element of time also adds to the sense of urgency, since a State must wait ten years from the date of ratification before submitting a continental shelf claim to the CLCS.
A seat on the Continental Shelf Commission (CSC) is not an exercise in veto power as the author correctly pointed out. It is far better than that. It is a way to understand intimately and firsthand what other states on the Commission are thinking, planning, and implementing.n50 Without a seat the US has neither eyes nor ears. This means as a matter of practicality that informal networking, so essential in international law, is greatly restricted. Hence such a seat provides the government valuable strategic intelligence for little cost. The collective arguments the author puts forward against the seat are conservative and minimalist and perhaps even non-purposive and deconstructionist. His arguments provide no substantive basis for not being on the Commission. Membership would not harm the US. It would provide a good deal of potential advantage. We believe that it would be better to have a representative at the table who would understand and report on the dynamics of the CSC instead of being excluded and having the government read about the CSC's works in the newspapers. Some of the most important [*60] marine resources are being exploitedn51 and will be found in the future on the world's continental shelves. US industry is and will continue to be in the capitalised forefront of these developments. A properly codified regulatory system contributed to by the US will be essential to protect US interests. Indeed, as interest and activities in the Arctic Ocean become more and more prevalent by the Russian Federation, Canada and others, the US risks losing valuable positions by not ratifying.