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.
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.