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.
Quicktabs: Arguments
Imperative impetus for this change in the US ocean policy comes from the ongoing climate change in the Arctic region and its potential implications for the US. Indeed, receding ice in the Arctic provides new opportunities to the US to secure its energy security and to gain economically by extracting hitherto inaccessible offshore Arctic resources and utilizing navigable Northwest Arctic Passage for commercial shipping. However, its legal status as a non-Party to the LOS Convention has kept the US ―hobbled on the Arctic‘s geopolitical sidelines‖ and acts as a stumbling block in its active participation in important international policymaking bodies- CLCS and ISBA. The US has no say in the CLCS commission with the authority to validate its national claims for extended continental shelf, which may adverserly affect the US Arctic interests. Further, non-participation in the ISBA authority may also marginalise the US interests in the deep seabed mining in the Area, beyond national jurisdiction. All these factors have point out the need for a change in the US ocean policy in recent time. These imperatives emphasize on the need to accede to the LOS Convention to advance US economic and strategic interests in the contemporary world.
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.24U.S. Resistance to Sea Treaty Thaws — Neil King Jr. — Wall Street Journal — Sep 22, 2007 [ More ] 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.26Conley, Heather A. and Jamie Kraut. U.S. Strategic Interests in the Arctic: An Assessment of Current Challenges and New Opportunities for Cooperation . Center for Strategic and International Studies: Washington, D.C., April 27, 2010 (28p). [ More (5 quotes) ]
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.
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
In May 2008, the United States signed the Ilulissat Declaration, an agreement among the five coastal states bordering the Arctic Ocean to abide by the customary law of the sea framework, even while it has not yet ratified the broadly accepted United Nation Convention on Law of the Sea (UNCLOS).10 While the Ilulissat Declaration establishes the body of law for managing the rights and obligations of states specifically within the Arctic Ocean, UNCLOS provides the primary mechanism for peaceful resolution of disputes and recognizes underwater territorial boundaries on the extended continental shelf.
Without ratification of UNCLOS, the United States lacks the legal power to contest the claims of other states in issues of overlapping maritime boundaries and the rights to resources on the continental shelf. This could give rise to what the international legal community terms excessive maritime claims. Therefore, unless the United States ratifies UNCLOS, the nation cannot properly protect its freedom of navigation as well as natural resource, energy and environmental interests in the Arctic.11
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.
UNCLOS must be the legal bedrock of U.S. Arctic policy. UNCLOS is the framework of cooperation within the region. Other nations have rejected the push for an Arctic treaty, like the Antarctic Treaty, favoring instead the UNCLOS structure.245 By ratifying UNCLOS, the U.S. will advance a “remarkable treaty that expands U.S. sovereign rights, powerfully serves U.S. needs for the Navy and the Coast Guard, and provides American industry with the security necessary to generate jobs and growth.”246 By joining the UNCLOS alliance, the U.S. will be better able to settle maritime claims and disputes between other Arctic nations on issues such as outer continental shelf and maritime boundary line issues. The U.S. will also be in a better position to challenge the jurisdictional claims of both Russia (Northern Sea Route) and Canada (Northwest Passage). Only through UNCLOS can the U.S. make rightful claim to the Extended Continental Shelf and the natural resources within it. Implementation requires Congressional action and pressure by the Administration to get UNCLOS to a vote in the Senate.
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.
Another strategy that could boost U.S. influence in the Arctic, buffer looming conflicts, and help clarify seabed claims would be for the Senate to ratify the United Nations Convention on the Law of the Sea.
The Law of the Sea took effect in 1994 and established rules for how the oceans and ocean resources are used and shared. That includes determining how countries can claim parts of the seabed. The U.S. initially objected over a section that limited deep seabed mining, but that section was amended to alleviate some of those concerns. Presidents Bill Clinton, George W. Bush and Barack Obama all urged the Senate to ratify it, but that still has not happened.
Ratification would give the U.S. a stronger international legal position in contested waters. It also would enable the U.S. to claim more than 386,000 square miles – an area twice the size of California – of Arctic seabed along its extended continental shelf and fend off any other country’s overlapping claims to that area.
Without ratification, the U.S. will be forced to rely on customary international law to pursue any maritime claims, which weakens its international legal position in contested waters, including the Arctic and the South China Sea.
In the case of the Arctic Ocean, the five Arctic coastal states are Canada, Denmark, Norway, Russia, and the United States. Russia ratified UNCLOS in 1997. In December 2001, Russian officials submitted a claim that 120 million hectares of underwater terrain between the Lomonosov and Mendeleev ridges be confirmed as a continuation of the Siberian shelf. Norway ratified UNCLOS in 1996 and submitted its claim in November 2006. Canada and Norway ratified UNCLOS in 2003 and 2004, respectively, and are in the process of preparing claims for submission. The United States has not ratified UNCLOS. However, the United States is working closely with Canada to gather and analyze data through the Extended Continental Shelf Project for the submission of Canada’s claim. This effort is led by the U.S. Continental Shelf Task Force, an interagency body, chaired by the Department of State with co-vice chairs from NOAA and the Department of the Interior. Both U.S. Navy and U.S. Coast Guard representatives participate on the Task Force. According to the U.S. Arctic Research Commission, the United States could lay claim to an area in the Arctic of about 450,000 square kilometers and the seabed resources therein. However, as a non-party to UNCLOS, the United States cannot participate as a member of the Commission on the Limits of the Continental Shelf; neither can the United States submit a claim under Article 76.