UNCLOS is best regime for Arctic Governance
UNCLOS represents the consensus of decades of debate on how best to govern shared ocean resources and to handle disputes over border conflicts. The Arctic nations have settled on UNCLOS, adopting it in their laws and subsequent agreements, and it forms the basis for governance of the Arctic region.
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Over the past year or so, some of the most interesting law of the sea issues for us have come from the Arctic, where climate change is creating the prospect for increased shipping, oil and gas activity, tourism, and fishing. As a result, the law of the sea has become more relevant than ever. I want to conclude with a few observations and some ideas about ways forward regarding the melting Arctic.
My first observation is that while some have expressed concern that the Arctic is a “lawless” region, this could not be further from the truth. For one, the law of the sea, as reflected in the Convention, provides an extensive legal framework for a host of issues relevant to the Arctic. It sets forth navigational rights and freedoms for commercial and military vessels and aircraft in various maritime areas. It addresses the sovereignty of the five Arctic coastal States – the U.S., Russia, Canada, Denmark, and Norway – by setting forth the limits of the territorial sea and the applicable rules. It addresses sovereign resource rights by setting forth the limits of the exclusive economic zone and the continental shelf and rules governing those areas. It provides the geological criteria relevant to establishing the outer limits of the continental shelf beyond 200 nautical miles – a topic of great interest these days as the Arctic coastal States seek to extend their respective shelves to the limits permissible under international law. For Parties to the Convention – that is, the four other coastal States – it sets forth a procedure for securing international recognition of those outer limits. International law also sets forth rules for resolving cases where the maritime claims of coastal nations overlap. And finally, the law of the sea provides rules regarding marine scientific research in the Arctic and sets out the respective rights and responsibilities among coastal States, flag States, and port States regarding protection of the marine environment.
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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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Arctic states are also cognizant of the fact that the current legal framework provides an opportunity for them to obtain effectively sovereign control over the hydrocarbon-rich Arctic waters. The main goal of the United Nations Convention on the Law of the Sea (“UNCLOS”), the international regulatory framework governing the use of the world’s oceans and seas, is to:
facilitate international communication, and . . . promote the peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment.5
Part VI of UNCLOS is key to Arctic hydrocarbon development because it governs the boundaries and extent of states’ sovereign control over offshore natural resources.6 A state exercises “sovereign rights for the purpose of exploring [its continental shelf] and exploiting its natural resources” and may exclude other states from doing so without its consent within its continental shelf.7 As a default rule, a state’s continental shelf extends to the greater of the outer edge of its continental margin8 (up to 350 nautical miles), or 200 nautical miles from the baselines9 from which the breadth of the territorial sea is measured.10 The burden is on the coastal state to establish that the outer edge of its continental margin extends beyond 200 nautical miles.11 To do this, the state must submit certain information outlined in Article 76 to the Commission on the Limits of the Continental Shelf (“CLCS”).12 The CLCS, consisting of twenty-one experts nominated by individual states and elected by all parties to five-year terms, can accept or reject the claims.13 If the CLCS rejects the claim, the state must revise its submission to conform to the formula set out in Article 76.14 The limits established by the state are final and binding.15 Finally, the state provides the Secretary-General of the United Nations with charts and relevant data describing the established outer limits, and then the information is published.16
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So far, the goal of the Arctic states seems to be cooperation in protecting the environment while encouraging investment in hydrocarbon development. This goal is reflected in both regional and country-specific documents. At a regional level, Arctic states have repeatedly declared goals for cooperation. For example, the Ottawa Declaration established the Arctic Council—the main regional coordinating body of Arctic states—in 1996 with the following mission statement:
[T]o provide a means for promoting cooperation, coordination and interaction among the Arctic States, with the involvement of the Arctic Indigenous communities and other Arctic inhabitants on common Arctic issues; in particular, issues of28 sustainable development and environmental protection in the Arctic.
More recently in 2008, five key Arctic states—Canada, Denmark, Norway, the Russian Federation, and the United States—adopted the Ilulissat Declaration, claiming a set of unified policy goals.29 The Ilulissat Declaration captured the following regional policies of the Arctic States:
- commitment to the current legal framework and an observation that there is “no need to develop a new comprehensive international legal regime to govern the Arctic Ocean;”30
- recognition of the role of the Arctic States in protecting the unique Arctic ecosystem; and
- commitment to a cooperative approach to making Arctic development a sustainable undertaking.31
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An ATS-style ban or overarching regulatory regime is not suitable for the Arctic for two reasons. First, a regime banning Arctic oil and gas production will not materialize because it is not in the interests of the would-be signatories. Whereas the drafters of the ATS were interested in preserving the continent as a scientific sanctuary,37 the Arctic states are already heavily invested in Arctic oil and gas development, not preservation of the region as a scientific sanctuary. For states to disregard those investments in exchange for a ban on development at this point is not feasible.
Second, the five Arctic states likely to have jurisdiction over Arctic waters—Canada, Denmark, Norway, the United States, and Russia— have already declared in unison that no new regulatory scheme is needed.38 Furthermore, building consensus is difficult. For example, the United States’ experience with state regulation of hydraulic fracturing disclosure demonstrates this point. In the United States, public outcry about the contents of hydraulic fracturing fluids has failed to induce a comprehensive national policy response, but instead has led to a flurry of state regulations in recent years.39 States responded quickly to the call for regulation in divergent ways based on what local lawmakers saw as the best way to approach the situation. For example, while New York instituted a moratorium on the use of fracturing in the Syracuse watershed,40 Colorado adopted regulations requiring disclosure of chemicals used in the process with an exception for trade secrets.41 Building consensus regarding a comprehensive regulatory regime between states within a single country is difficult enough, and building such a consensus between countries with no overarching sovereign body may be even more difficult.
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Fifth and finally, it does seem that UNCLOS reflects a larger sea-change in how the international community, and legitimate international governing bodies, can create frameworks for cooperative action, or at least limit the damage of non-cooperative action. As such, by including dispute-resolution mechanisms in future framework agreements, IGOs like the United Nations can productively expand into new or emerging areas of global governance. Accordingly, it does appear that the Arctic Scramble, and maritime disputes elsewhere, need not recall the imperial division of Africa. Rather, there appears to be widespread recognition and acceptance of UNCLOS as the legitimate framework for establishing, defining, deciding, and resolving disputes on maritime territorial issues. Merely by existing and coming into legal standing with ratification, UNCLOS delegitimizes the traditional power-politics methods of settling the disputes. Instead, UNCLOS is overtly designed to handle these events. By defining the rules of the road, and by defining where the road begins and ends, UNCLOS is the discursive legisla- tor, judge and policeman on the maritime highway. And no one, as yet, is seriously challenging that role, at least in the Arctic.
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Recent trends strongly indicate that human activity in the Arctic region will continue to increase for the foreseeable future. This raises certain national and global security concerns. UNCLOS represents the international consensus on rules governing the use of the planet’s oceans. This treaty was developed between 1973 and 1982; it was implemented on 16 November 1994. It combined several treaties governing laws of the sea that were previously separate. So, UNCLOS is a comprehensive treaty that codifies international law for the vast global commons of the world’s oceans, which make up nearly three-quarters of the earth’s surface. Notably, UNCLOS is an internationally accepted — and therefore a legitimate — means of defining sovereignty over the world’s oceans. It is particularly important in the Arctic, where several nations — including the United States — have conflicting claims. Articles within UNCLOS offera framework for a peaceful resolution of sovereignty disputes. UNCLOS clearly specifies state and international rights as they pertain to the world’s oceans.
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Reforming the treaty, however, would be difficult. The UNCLOS is not a region-specific treaty: over 150 nations are signatories, and 145 have ratified it.154 The UNCLOS initially took over a decade to acquire the required number of signatures to become effective.155 The dramatic reform required to make the UNCLOS an effective means to protect the Arctic would likely require member states to redraft large portions of the massive document. Nations around the world would subsequently have to acquiesce to the changes.156
If the international community makes the required changes to the UNCLOS, there is always the risk that current member states will rebuke the new treaty. If the reformed treaty fails to gain acceptance, not only would the Arctic remain unprotected, but so would the world’s other oceanic environments. This risk may not be worth its potential cost. Even if member states form a consensus of better protecting the Arctic environment, and more ratify the treaty, it still may prove to be ineffective. Many nations, including the United States, tend to ratify treaties only to claim reservations about provisions they do not like.157 This severely limits a treaty’s ability to create the kind of change necessary to protect the Arctic.
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The United States benefits from a rules-based international order that enhances economic well-being, respects human rights and human dignity, and supports mechanisms for the peaceful resolution of disputes while providing for territorial integrity and defense of the United States and its allies. In the Arctic, which is in rapid flux due to the changing climate, no one country can manage the coming challenges alone. A collective approach is needed to mitigate and adapt to changing realities, advance scientific understanding, and build resilience and capacity; the UN Convention on the Law of the Sea is part of this rule-based order.
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Although some policy officials and scholars argue countries should abandon UNCLOS and implement a new legal regime,207 such action would undermine the effectiveness of the existing legal norms provided by UNCLOS. Abandoning UNCLOS would only weaken current international Arctic law, create economic uncertainty, and pose potential security issues. In addition, the formulation, adoption, and implementation of new international Arctic legislation would, at best, be a difficult, if not impossible, process. "209 Considering the enormous economic wealth at stake, coupled with the political power of today's oil, abandoning UNCLOS might erroneously be interpreted by some as encouraging military solutions to Arctic territorial disputes.
"Who Gets the Oil?: Arctic Energy Exploration in Uncertain Waters and the Need for Universal Ratification of the United Nations Convention on the Law of the Sea
." Houston Journal of International Law
. Vol. 32, No. 2 (2009-2010): 505-544. [ More (7 quotes) ]
Unlike in the South China Sea, there is no disagreement that maritime claims in the Arctic should be governed by UN guidelines.
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The authors find that UNCLOS has been successful in making the Arctic one of the most peaceful regions on the planet, with "the potential for a major inter-state conflict in the Arctic has generally been regarded as quite low."
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