U.S. is losing emerging Arctic race by not being party to UNCLOS
By remaining outside of UNCLOS, the U.S. is ceding its leadership role in the region in a number of ways. First, and most importantly for the U.S. strategic and economic interests, by remaining outside of the treaty the U.S. is not able to submit its claims for the extended continental shelf in the Arctic to the CLCS, preventing U.S. industries from claiming mineral rights. Secondly, existing Arctic governance regimes are based on and rely on UNCLOS and the U.S. non-party status prevents it from contributing as a full partner, weakening the overall Arctic governance regime. Finally, U.S. efforts to develop a strategy for the Arctic are constrained by the continual question of its non-party status and legitimacy as a leader.
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The good news is that it’s not too late to play catch-up. The first and most obvious place for the United States to start is to finally join the 164 other countries that have acceded to unclos. Ironically, Washing- ton had a hand in drafting the original treaty, but Senate Republicans, making misguided arguments about the supposed threat the treaty poses to U.S. sovereignty, have managed to block its ratification for decades. The result has been real harm to the national interest.
UNCLOS allows countries to claim exclusive jurisdiction over the por- tions of their continental shelves that extend beyond the 200-nautical- mile exclusive economic zones prescribed by the treaty. In the United States’ case, this means that the country would gain special rights over an extra 350,000 square miles of ocean—an area roughly half the size of the entire Louisiana Purchase. Because the country is not a party to unclos, however, its claims to the extended continental shelf in the Beaufort and Chukchi seas (and elsewhere) cannot be recognized by other states, and the lack of a clear legal title has discouraged private firms from exploring for oil and gas or mining the deep seabed. The failure to ratify unclos has also relegated the United States to the back row when it comes to establishing new rules for the Arctic. Just as traffic through the Bering Strait is growing, Washington lacks the best tool to influence regulations governing sea-lanes and protecting fisheries and sensitive habitats. The treaty also enshrines the international legal principle of freedom of navi- gation, which the U.S. Navy relies on to project power globally.
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In support of multilateral Arctic partnerships are a number of broad-based and disparate organizations and policies nonetheless unified in support of the issue, and additional support comes from consequential benefits inherent in UNCLOS accession. Overarching is National Security Presidential Directive (NSPD) 66, “Arctic Region Policy,” released in 2009. Among the directive’s policy statements is a robust admonishment for accession to UNCLOS:
Joining [the UNCLOS treaty] will serve the national security interests . . . secure U.S. sovereign rights over extensive maritime areas . . . promote U.S. interests in the environmental health of the oceans . . . give the United States a seat at the table when the rights that are vital to our interests are debated and interpreted . . . [and] achieve international recognition and legal certainty for our extended continental shelf.19
Furthermore, NSPD 66 persuasively promotes multinational partnership in the Arctic to address the myriad issues faced in the region.20 Likewise, the Department of Defense, as articulated in its 2010 Quadrennial Defense Review, strongly advocates accession to UNCLOS in order “to support cooperative engagement.”21 Also among the tenacious supporters of accession are the U.S. Navy, whose leadership stresses that UNCLOS will protect patrol rights in the Arctic, and a number of environmental groups who want to advocate on behalf of Arctic fauna and flora.22 In addition, the oil industry lobby representing Chevron, ExxonMobil, and ConocoPhillips asserts that oil and gas exploration cannot reasonably occur without the legal stability afforded in UNCLOS.23 In a consequential benefit of accession, the extended U.S. continental shelf claims could add 100,000 square miles of undersea territory in the Gulf of Mexico and on the East Coast plus another 200,000 square miles in the Arctic. Accession acts to strengthen and extend Arctic jurisdiction, open additional hydrocarbon and mineral resource opportunities, add to the stability of the international Arctic framework, and boost the legal apparatus for curtailing maritime trafficking and piracy.25 The benefits appear to outweigh the costs as the United States is increasingly moving to a position of strategic disadvantage in shaping Arctic region policy outcomes by failing to ratify UNCLOS.
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The United States must take some very concrete steps over the next several years to improve its strategic posture in the Arctic so that over the next 40 years the region is a model of regional coop- eration and not a zone of potential conflict.
The most vital step the United States must take immediately is ratification of the Law of the Sea Convention (UNCLOS). UNCLOS provides the necessary guidance and appropriate frame- work to resolve claims to an extended continental shelf in the Arctic region. To prepare itself for ratification, the United States must continue to invest funds in Arctic scientific research and explo- ration in preparation for submitting U.S. claims for extended territorial boundaries. The Obama Administration must make UNCLOS ratification a legislative priority (amongst many other competing priorities) and achieve Senate ratification as soon as possible. Should the U.S. remain outside of UNCLOS for the foreseeable future, it will find itself in a growing strategic disadvantage in shaping future policy outcomes vis-à-vis the Arctic.
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The United States’ continued failure to ratify the U.N. Convention on the Law of the Sea, or UNCLOS, despite broad, bipartisan consensus on its importance undermines our nation’s credibility in international marine affairs and diminishes our influence in international forums such as the Arctic Council. Since it was negotiated under Ronald Reagan, every president has supported ratification, and failure to ratify is preventing the United States from defining territorial claims in the Arctic under international law. This leaves us at a disadvantage to every other Arctic Council member. The Obama administration, as part of its comprehensive planning for the Arctic Ocean, should elevate efforts to secure Senate ratification of this treaty after the midterm elections. This effort should include renewed coordination with the Senate Foreign Relations Committee chairman, as well as high-level outreach to all members of the Senate to convey the vital importance of UNCLOS to U.S. commercial, scientific, and security interests in the Arctic Ocean. The administration should call on former Presidents Bill Clinton and George W. Bush to jointly encourage ratification.
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Despite the slowdown, Russia continues to increase its military presence in the Arctic. The National Security Strategy of the Russian Federation until 2020 stresses the importance of strengthening border guard forces in the region and updating their equipment, while creating a new unit of military forces to “ensure military security under various military-political circumstances.”78 Russia’s assertive rhetoric has been matched by a range of steps that stake its military prominence in the Arctic by developing its coastal defense infrastructure and enhancing its technology capa- bilities, which have been perceived by its Arctic neighbors as provocative and controversial. For example, Russia fired cruise missiles over the Arctic in a summer 2007 exercise; reinforced its Northern Fleet in order to perform additional exercises in the summer of 2008; tested new electronic equipment and precision weapons; and resumed Arctic patrols for the first time since the end of the Cold War. Several times during the past two years U.S. and NATO jets have shadowed Russian bombers close to the Norwegian and Alaskan coasts, particularly during and after the Georgia-Russia conflict in August 2008.
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A cooperative approach among international partners is key to ensuring U.S. interests are met within the Arctic region. A multinational effort is essential to ensure both human safety and appropriate environmental stewardship. A unilateral U.S. approach is simply not feasible. However, as the world’s sole superpower and as a contiguous Arctic nation, it is imperative that the U.S. assumes an Arctic leadership role within the international community.
Perhaps the most important step for the U.S. is to ratify UNCLOS in order to establish the legitimacy of U.S. leadership among the other stakeholders who have interests in the Arctic. This would partner the United States with the seven other Arctic nations (Russia, Canada, Denmark, Finland, Sweden, Norway, and Iceland), along with six indigenous organizations that are permanent members of the Arctic Council.52 This multinational assembly meets semiannually and “provides the greatest potential for a comprehensive resolution of environmental and governance issues in the Arctic.”53 NSPD-66/HSPD-25 clearly acknowledges that the “Arctic Council has produced positive results for the United States by working within its limited mandate of environmental protection and sustainable development.”54 U.S. representation on the Arctic Council has slowly increased since its first meeting in 1996. In fact, in March 2010 Secretary of State Hillary Clinton met with her counterparts from Canada, Russia, Denmark, and Norway in Chelsea, Quebec, as part of the Arctic Ocean Foreign Ministers’ Meeting. This meeting affirmed the importance of the Arctic Council, its membership, and the need for “new thinking on economic development and environmental protection.”55 However, the Arctic Council is hindered by its “lack of regulatory authority and the mandate to enact or enforce cooperative security-driven initiatives.”56 Although very useful for “scientific assessments” and “policy-relevant knowledge”, the Council does not address military concerns.57
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The Arctic Ocean is currently at the center of the outer continental shelf discus- sion. In fact, the Arctic is becoming the test bench for international politics. It is an ocean where oil and gas, minerals, fisheries, sea lanes, military interests, and gover- nance over ocean spaces meet in conflict among the five “frontline” states (USA, Canada, Denmark/Greenland, Norway, and Russia) while other neighboring entities like Iceland, the EU, Japan, and China express their Arctic interests as well.
All these happen at the same time when Arctic temperatures are rising twice as fast as in the rest of the world20 and climate change becomes incalculable. The warming temperatures break up polar ice, raise sea levels, erode coastlines at a remarkable speed,21 and potentially cause international conflicts as the Arctic becomes accessible at least during the summer. The USA, unlike the other Arctic states, is falling behind in this contest with little or no icebreaking and naval capacities in the region. Moreover, since the USA has not ratified the Law of the Sea Convention, it is neither in a position to claim outer continental shelf areas nor has a say in the International Seabed Authority ISA which will be responsible for deep-sea mining in central parts of the Arctic. Denmark, on the other hand, is working on its “Arctic strategy” with an anticipated claim of outer continental shelves north of Greenland to include the pole, which will be formally presented to the CLCS before 2014.
While the other Arctic powers are racing to carve up the region, the United States has remained largely on the sidelines. The U.S. Senate has not ratified the UN Convention on the Law of the Sea (UNCLOS), the leading international treaty on maritime rights, even though President George W. Bush, environmental nongovernmental organizations, the U.S. Navy and U.S. Coast Guard service chiefs, and leading voices in the private sector support the convention. As a result, the United States cannot formally assert any rights to the untold resources off Alaska's northern coast beyond its exclusive economic zone -- such zones extend for only 200 nautical miles from each Arctic state's shore -- nor can it join the UN commission that adjudicates such claims. Worse, Washington has forfeited its ability to assert sovereignty in the Arctic by allowing its icebreaker fleet to atrophy. The United States today funds a navy as large as the next 17 in the world combined, yet it has just one seaworthy oceangoing icebreaker -- a vessel that was built more than a decade ago and that is not optimally configured for Arctic missions. Russia, by comparison, has a fleet of 18 icebreakers. And even China operates one icebreaker, despite its lack of Arctic waters. Through its own neglect, the world's sole superpower -- a country that borders the Bering Strait and possesses over 1,000 miles of Arctic coastline -- has been left out in the cold.
For all the changing conditions of the Arctic Ocean, one thing has not changed: the basic rules of international law relating to oceans. These laws apply to the Arctic in the same way that they apply to all the oceans. The international legal oceanic framework remains the 1982 United Nations Convention on the Law of the Sea (UNCLOS). The United States has not yet become party to it, despite the fact that we recognize its basic provisions as reflecting customary international law and follow them as a matter of long-standing policy.
Our status as a non-party to the UNCLOS, however, puts the United States at a disadvantage in a number of fundamental respects, most of which lie beyond the scope of this discussion. But our efforts to address the changing Arctic region bring at least two of those disadvantages into sharp focus.
First, we are the only Arctic nation that is not party to the UNCLOS. As our neighbors debate new ways to collaborate on Arctic Ocean issues, they necessarily will rely on the UNCLOS as the touchstone for their efforts. The United States will continue to take part in these initiatives, but our non-party status deprives us of the full range of influence we would otherwise enjoy in these discussions.
Second, the four other nations that border the central Arctic Ocean—Canada, Denmark/Greenland, Norway, and Russia—are advancing their claims to the continental shelf in the Arctic beyond 200 nautical miles from their coastal baselines. The UNCLOS not only establishes the criteria for claiming such areas of continental shelf, it also sets up a process to secure legal certainty and international recognition of the outer limits of those shelves. The United States also believes that it will be able to claim a significant portion of the Arctic Ocean seafloor as part of our continental shelf. But as a non-party to the UNCLOS, we place ourselves at a serious disadvantage in obtaining that legal certainty and international recognition.
Given that the United States has not ratified UNCLOS, U.S. nationals may not serve as members of the Commission on the Limits of the Continental Shelf. It is not clear whether the United States, as a non-state party, can even make a legally recognized submission to the commission to assert its claim and fully protect its proprietary rights and energy interests. In contrast, Russia, which may be entitled to almost half of the Artic region’s area and coastline, has already made its submission for vastly extending its continental margin, including a claim to the Lomonosov Ridge, an undersea feature spanning the Arctic from Russia to Canada. Russia and Canada are the two countries with which the United States has potentially overlapping extended continental shelf claims.
This maritime boundary dispute is no small matter. The U.S. Geological Survey estimates that the Arctic holds 22 percent of the world’s undiscovered oil and gas, amounting to more than 412 billion barrels of oil equivalent. Legal certainty in maritime delimitation is critically important for Arctic states and their respective energy companies. On June 8, 2012, Rex Tillerson, as chairman and CEO of ExxonMobil, wrote to the Senate Foreign Relations Committee to vociferously urge U.S. accession to UNCLOS:
“Perhaps the best example of the need for certainty in an area with great unexplored potential involves the Arctic Ocean…Several countries, including the United States, are provided with a claim to extended exploitation rights under the application of UNCLOS in the Arctic. The legal basis of claims is an important element to the stability of property rights.”
In the absence of treaty ratification, Tillerson noted that the United States suffers from the dual disadvantage of having both a cloud over the international status of U.S. claims and a weakened ability to challenge other states’ conflicting claims.
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