U.S. is not losing out in Arctic by not being party to UNCLOS
By relying on the Convention and the doctrine of the high seas, the United States may bypass the UNCLOS regime altogether and begin exploration and exploitation of the Arctic area immediately.
If UNCLOS has not become customary international law and thus does not bind the United States with respect to the Arctic area, then the United States is free to argue that the Convention on the High Seas allows it and other nations to freely mine the seabed and navigate the waters of the Arctic. The freedom to navigate the high seas is explicitly guaranteed by the Convention. The United States must argue that the Convention governs the dispute and provides all nations the ability to navigate the Northwest Passage free from interference from Canada or any other nation claiming to own the area. As a result, the United States would be claiming that the Northwest Passage is part of the "common heritage" and that any nation could navigate through it.
The most significant benefit to the United States' argument that the doctrine of the high seas still governs the Arctic Ocean and its seabed is that the United States would be able to exploit the vast natural resources through deep sea mining activities. Unlike the freedom to navigate the high seas, the freedom to mine that area is not explicitly guaranteed, although it is clearly protected. By securing the right to mine and exploit the resources beneath the Arctic Ocean, the United States would be taking a step to guarantee its energy independence and encouraging U.S. businesses to invest in deep sea mining. These two things will, of course, be critical to the U.S. economy in the foreseeable future.
By relying on the Convention and the doctrine of the high seas, the United States may bypass the UNCLOS regime altogether and begin exploration and exploitation of the Arctic area immediately. As a further benefit, the United States will not have to ratify UNCLOS in order to secure these rights. In fact, if the United States does ratify UNCLOS as many have called for, it may be relinquishing these rights completely if no valuable territory is an extension of its continental shelf. Thus, it is clearly in the United States' interest not to ratify UNCLOS and to contest the Russian land claim outside that regime's jurisdiction.
Though the United States has not ratified UNCLOS, this does not mean that they are out of the running in the race for Arctic territory. Due to the lengthy CLCS review process, oil and gas drilling activity in the extended continental shelf regions by any country is likely a long way away.51 It also appears that the United States is not abandoning UNCLOS, and in "[p]rospects for the U.S. Senate to ratify the Convention on the Law of the Sea [continue to] improve."52 The stalled bill in the U.S. Senate has not aggrieved the energy industry, as "energy industry officials have made it clear to U.S. agencies that they are not interested in undertaking exploration and production beyond the 200-nautical-mile exclusive economic zone without a firm international legal framework recognizing any extended claims."53 However, the prospect of the United States joining the game may be even more distant because the CLCS is far from a "firm international legal framework."54 For now, the only certainty is that the United States must make major political progress by either ratifying the UNCLOS treaty or attempting to resolve any concerns regarding Arctic lands in another forum. Further, the United States must engage other nations in order to become a major player in the Arctic territorial battle.
The United States was able to play a role in the Commission’s non- acceptance of Russia’s first claim to the Arctic seabed back in 2001, even though it was not a party to LOST – and, therefore, not at risk of being bound by adverse Commission decisions. This episode demonstrates that, by remaining outside of the Treaty, America can retain its freedom of action (including the use of bilateral diplomacy and more constructive multilateral mechanisms, such as the Arctic Council) and still challenge such over-reaching Russian claims and win.
For example, the Obama Administration’s January 2014 Arctic strategy implementation plan lists six major national security objectives for the Arctic region. Only one of these objectives—“Promote International Law and Freedom of the Seas”—intersects with UNCLOS.10Implementation Plan for The National Strategy for the Arctic Region . The White House: Washington, D.C., January 31, 2014 (32p). [ More (3 quotes) ] The implementation plan details the “next steps” for freedom of the seas in the Arctic.
None of these “next steps” would be measurably advanced by U.S. membership in UNCLOS. For instance, the United States conducts maritime exercises and operations on a global scale and has done so ever since it launched a blue-water navy. Next steps such as information sharing, relationship building, and strategic communications are not contingent on UNCLOS membership and may be accomplished through any number of bilateral and multilateral means, including the Arctic Council. The next steps listed in the implementation plan are important and should be pursued by the responsible executive departments, but none of them require U.S. membership in UNCLOS.
The U.S. relies on its sovereign power and diplomacy when pursuing territorial claims in the Arctic. The United States is not a party to the United Nations Convention on the Law of the Sea Treaty (LOST) and therefore is not bound by any procedures and determinations concluded through LOST instruments. Instead, the U.S. is pursuing its claims “as an independent, sovereign nation,” relying in part on Harry S. Truman’s Presidential Proclamation No. 2667, which declares that any hydrocarbon or other resources discovered beneath the U.S. continental shelf are the property of the United States.25 The U.S. can defend its rights and claims through bilateral negotiations and in the multilateral venues such as through the Arctic Ocean Conference in May 2008, which met in Ilulissat, Greenland.
Many have argued, including the Bush Administration, that the U.S. will not have leverage or a “seat at the table” to pursue or defend its Arctic claims on condition that the U.S. is not a party to LOST. However, U.S. attendance at the conference in Ilulissat significantly weakened this argument. Even though the U.S. is not a LOST party, other Arctic nations “are unable to assert credible claims on U.S. territory in the Arctic or anywhere else in the world” because President Truman already secured U.S. rights to Arctic resources with his proclamation.26