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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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.
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The activity related to Arctic claims suggests an urgency for U.S. accession to the Convention. This urgency is driven both by what the United States can do and what it can undo as a party to the Convention. While we currently can comment on proposals by other Convention nations9, accession to the treaty would give the United States standing to substantially modify or block proposals that the U.S. found detrimental to its national interests. This could be done by preparing its own claim to the Continental Shelf Commission, or by working cooperatively with other Arctic nations to develop logical rules to govern exploitation of resources and other uses of the Arctic Sea. This latter strategy reflects one of the biggest benefits of U.S. accession to the Convention-namely that it would generate goodwill and a sense of cooperation over a shared mission to responsibly use the resources of the sea while protecting the oceanic environment for generations to come.
Balancing U.S. Interests in the UN Law of the Sea Convention
. Nicholas Institute for Environmental Policy Solutions, Duke University: Durham, NC, October 2007 (8p). [ More (4 quotes) ]
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Global climate change is bringing about epochal transformation in the Arctic region, most notably through the melting of the polar ice cap. The impact of these changes, and how the global community reacts, may very well be the most important and far-reaching body of issues humanity has yet faced in this new century. A number of nations bordering the Arctic have made broad strides toward exercising their perceived sovereign rights in the region, and all except the United States have acceded to the United Nations Convention on the Law of the Sea (UNCLOS), which provides an international legal basis for these rights and claims.1 Similarly, while most Arctic nations have been planning, preparing, and program- ming resources for many years in anticipation of the Arctic thaw, the United States has been slow to act on any of the substantive steps necessary for the exercise of sovereign rights or the preservation of vital national interests in the region.2
The United States must move outside the construct of unilateral action in order to preserve its sovereign rights in the Arctic, capitalize on the opportunities available, and safeguard vital national interests in the region. In today’s budget-constrained environment and as a Nation at war with higher resource priorities in Iraq and Afghanistan than in the Arctic, it is unrealistic to believe that any significant allocation will be programmed for addressing this issue.3 Since the United States is too far behind in actions necessary to preserve its critical interests as compared to the other Arctic countries, the Nation must take the lead to cultivate a new multilateral partnership paradigm in the region.
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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.
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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