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.
Other Benefits. We should also join the Convention now to steer its implementation. The Convention’s institutions are up and running, and we – the country with the most to gain or lose on law of the sea issues – are sitting on the sidelines. As I mentioned, the Commission on the Limits of the Continental Shelf has received submissions from over 40 countries without the participation of a U.S. commissioner. Recommendations made in that body could create precedents, positive and negative, on the future outer limit of the U.S. shelf. We need to be on the inside to protect and advance our interests. Moreover, in fora outside the Convention, the provisions of the Convention are also being actively applied. Only as a party can we exert the level of influence that reflects our status as the world’s foremost maritime power.
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The United States has basic and enduring national interests in the oceans. These diverse interests—security, economic, scientific, dispute settlement, environmental, and leadership—are best protected through a comprehensive, widely accepted international agreement that governs the varying (and sometimes competing) uses of the sea. Although the United States has lived outside the Convention for 30 years, climate change in the Arctic provides the current Administration with a new and urgent incentive to re-engage the Senate and urge that body to provide its advice and consent to U.S. accession to the treaty at the earliest opportunity. As a nation with both coastal and maritime interests, the United States would benefit immensely from becoming a party to UNCLOS—accession will restore U.S. oceans leadership, protect U.S. ocean interests and enhance U.S. foreign policy objectives, not only in the Arctic, but globally.
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Ratification of the Convention is an urgent matter. Although a state has up to ten years after it has ratified the Convention to map and submit proposed limits of its continental shelf to the Commission on the Limits of the Continental Shelf, by that time it may be too late.196 Global climate change has caused parts of the Arctic Seacap to begin melting, making it navigable for the first time.197 While this is promising for underwater mining industries, these environmental effects have attracted a great deal of attention and the international community is cooperating to reverse them.198 Instead of engaging in fruitless political battles with its strategic adversaries, the United States should move quickly to ratify the Convention and focus its energy on extracting the resources beneath the Arctic as quickly as possible.199 Ratification “would allow full implementation of the rights afforded by the convention, [allowing member nations] to protect coastal and ocean resources.”200
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In May 2013, five Asian nations—including China—were granted ob- server status in the Arctic Council, and China has stated it does not intend to be a “wallflower” in the forum.33 Beijing has expressed an interest in developing new shipping routes through the Arctic that will connect China with its largest export market—the European Union. To that end, in August 2013, a Chinese merchant vessel loaded with heavy equipment and steel set sail from Dalian en route to Rotterdam via the Arctic’s Northern Sea Route (NSR).34 China has also expressed an interest in developing Arc- tic resources. In March 2010, Rear Admiral Yin Zhou of the People’s Liberation Army Navy stated at the Eleventh Chinese People’s Political Consultative Conference that “under . . . UNCLOS, the Arctic does not belong to any particular nation and is rather the property of all the world’s people” and that “China must play an indispensable role in Arctic exploration as it has one-fifth of the world’s population.”35 Officials from the State Oceanic Administration have similarly indicated that China is a “near Arctic state” and that the Arctic is an “inherited wealth for all humankind.”36 As a party to UNCLOS, the United States could claim an ECS in the Arctic and forestall any encroachment of U.S. ocean resources by China or any other nation.
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In light of a global climate crisis and the escalating battle over the valuable resources below the North Pole, Congress should make ratification of UNCLOS one of its top priorities. Until the United States is a treaty member, it cannot enjoy voting privileges on the influential ISA (on which it would be granted a permanent seat) nor submit claims to the CLCS to gain legal rights to the resources in the North Pole‘s seabed. The concerns that influenced President Reagan not to sign the treaty in 1982 have largely disappeared, and the remaining concerns are easily refuted. U.S. ratification of UNCLOS makes sense not just for economic, national security, and environmental reasons, but also to enhance the diplomatic standing of the United States. Accession to UNCLOS now would be a powerful and meaningful gesture on behalf of the United States, symbolizing a recommitment to global cooperation.
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The Arctic nations are preparing submissions for the extended shelves; Russia’s is currently under review. Under the terms of the convention, the American zone would be the largest in the world— more than 3.3 million square miles, an area greater than the lower 48 states combined.74 In addition to protection of shelf claims, the convention is good for the United States because it sets pollution standards and requires signatories to protect the marine environment. The United States has not submitted a claim because it has not ratified the Convention.75
Ratification is also important for U.S. long-term presence in the region. In the absence of shared law, countries often make unreasonable and irres- ponsible claims in the maritime environment—the Arctic will be no different.76 Without binding law, the United States gambles on long-term credibility to enforce international law, freely navigate the oceans, and protect the business ventures that rely on uniform laws.
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As the global climate is warming up rapidly, leading to ice-free summers in the Arctic Ocean, Arctic nations are confronting the prospect of new rights over the Arctic’s vast natural resources. All Arctic nations— Canada, Denmark, Norway, Russia—except for the United States, ratified the Convention and have already submitted, or are preparing to submit, proposed limits for their extended continental shelves to the Commission. The submissions will enable these countries to obtain international recognition over their extended continental shelves in the Arctic, including exclusive rights over oil and gas reserves.
As a nation with an extensive coastline and a continental shelf with enormous oil and gas reserves, the United States has much more to gain than lose from joining the Convention. Furthermore, the uncertainties stemming from the customary law make it a less effective measure to protect American interests. Only a universal regime such as the Convention can adequately safeguard the United States’ interest in the Arctic Ocean. The best way to guarantee access to the Arctic’s resources is for the United States to become a party to the Convention.
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The United States stands atop a precipice, faced with a momentous opportunity to take advantage of trillions of dollars in natural resources, while sim- ultaneously restoring the nation’s economic security through governance and job creation. Governance is the first step. Ratifying the Law of the Sea Conven- tion must be a priority for the administration or the United States will lose economically and could be challenged as the global maritime leader. The Inter- national Maritime Organization will remain the key vehicle for governance mechanisms. AIS expansion, as well as mandated Arctic shipping guidelines and establishing traffic patterns should be top priorities for the United States. Governance needs to be accompanied by a significant acquisition program to keep pace with the other Arctic nations. Ice- breakers, additional aircraft, and infrastructure can no longer be shoehorned into a Coast Guard budget, which has inadequate funding even for recapitaliza- tion of its Vietnam-era fleet.
The United States needs an Arctic economic development strategy that incorporates the departments of Defense, Homeland Security, Commerce, and Energy. Such strategy should include plans for shore-based infrastructure, communications, and surveillance technology, icebreakers, and response aircraft for the region. In an era of declining budgets, the simplest course of action would be to ignore the tremendous potential of investment in the Arctic. However, such willful turning away reduces our ability to reap tremendous economic benefits and could harm U.S. national security interests.
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Additionally, the practice of States in a regional grouping, such as the Arctic Circle, can result in special customary law for all of the similarlysituated States, applicable only in that area.n353 Further jeopardizing American interests is that the doctrine of the continental shelf in particular has been considered "instant customary law,"n354 provided that the practice of States whose interests are affected is sufficiently extensive and uniform to indicate a legal obligation.n355 If the other Arctic nations continue to assert sovereign rights, uniformly based on an extended continental shelf, America may easily be hamstrung by provisions that it does not acknowledge but nonetheless prove binding. By way of example, if an American mining corporation were to form a consortium under a bilateral treaty to harvest sea floor resources with a State that was already a member of UNCLOS, and sought to mine in an area already recognized by UNCLOS as an extension of another Arctic State's continental shelf, or even merely outside its own EEZ, it would contravene the Convention and also subject both countries to international judicial proceedings.n356
It has been suggested that the universal right of navigation under UNCLOS n357 might be able to provide an alternate legal basis for claiming Arctic economic rights.n358 However, finessing this argument into a circumvention of the Convention's obligations and limits within the Arctic would be nothing more than unilateralism disguised as political legerdemain. The blithe dismissal of UNCLOS in favor of reliance on the Grotian conception of the freedom of the high seas in order to legitimize American rights over Arctic resources mistakenly ignores the global support and position of authority UNCLOS has achieved.
Rather, in all likelihood, America might be forced to accept the modus vivendi n359 in the Arctic that has developed over two decades of widespread UNCLOS observance. If the Senate continues to blockade attempts to ratify the treaty, other contingencies should be considered, such as negotiating alternate regimes or implementing UNCLOS via executive order.n360 Should several "uncooperative members of the Senate" force the United States to the sidelines, "the shortterm political costs of resubmitting UNCLOS [as an executive agreement would be justified] by America's need to be a full player in the remainder of this Arctic competition."
"Implications of Global Warming on State Sovereignty and Arctic Resources under the United Nations Convention on the Law of the Sea: How the Arctic is no Longer Communis Omnium Naturali Jure
." Richmond Journal of Global Law & Business
. Vol. 8. (Winter 2008): 195-248. [ More (12 quotes) ]
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While the United States debates whether or not the convention would undermine U.S. sovereignty, Russia, Canada, and the other Arctic nations are doing all they can to prove that these newly available territories belong to them. By waiting to ratify the convention, the United States risks losing potential territory to countries that are already operating under the treaty, specifically Canada. For example, the Beaufort Sea includes an area where the EEZs of the United States and Canada overlap. Predictably, the two countries have differing opinions on how the area, which covers more than 7,000 square nautical miles, should be demarcated. Canada argues that the treaty signed between Russia and the United Kingdom in 1825, defining the boundary as following the 141° west meridian “as far as the frozen ocean,” should stand. The United States position is that since no maritime boundary was ever negotiated between Canada and the United States, the boundary should run along the median line between the two coastlines. This is the kind of territorial dispute the United States stands to lose by not ratifying the convention.
Rich with energy resources, minerals and strategic positioning, the warming Arctic is ripe for territorial disputes, USCG Adm. Zukunft warns in a recent speech.
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The Coast Guard commandant warned that his service’s presence in the Arctic may not be enough to ward off Chinese and Russian encroachment unless the U.S. signs the United Nations Convention on the Law of the Sea – and that even if the U.S. signed the treaty now, it might be too little, too late.
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The international scramble over development, energy and climate change in the Arctic — highlighted by President Obama’s trip to the Alaska’s far north this week — is prompting fresh debate over whether American influence in the region may be limited by the fact that the U.S. is the only nation in the fight to have never ratified the Law of the Sea treaty.
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Countries are scrambling to stake claim to untapped resources, previously frozen in the Arctic. But with a lack of basic infrastructure and funding commitments, critics say the U.S. trails other countries in preparations for the increased activity in the north.
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