The Opportunity Costs of Ignoring the Law of Sea Convention in the Arctic
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As a nation with global maritime interests, the United States has consistently viewed the UNCLOS provisions on freedom of navigation on the high seas and in exclusive economic zones (EEZs), “transit passage” through straits used for international navigation, and “innocent passage” through territorial seas as the convention’s essential core.12 Although UNCLOS’ navigation provisions were not designed with the Arctic in mind per se, the provisions are consistent with the United States’ interest in freedom of navigation in and through the Arctic.13
Although experts differ on the imminence and extent of regular Arctic transits, some scientific studies suggest that increasing temperatures will result in a seasonally ice-free Arctic as early as the 2030s.14 As the ice recedes, many expect the opening of more expeditious travel routes,15 with consequences for international security and commercial activities.16 In particular, two trans-Arctic routes are expected to become increasingly critical: the Northwest Passage and the Northern Sea Route.17
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Both Canada and the Russian Federation have enacted regulations that the United States believes amount to unwarranted restrictions on the right of transit passage. Canada, for example, imposed a mandatory ship reporting and vessel traffic service system (NORDREG) that governs transit through the Northwest Passage.29 NORDREG covers Canada’s EEZ and the several Northwest Passage routes in the Canadian Arctic Archipelago.30 Canada specifically cites UNCLOS Article 234 to justify NORDREG, asserting that the reporting requirements are to prevent and reduce marine pollution from vessels in the delicate Arctic waters.31 Similarly, the Russian Federation has historically limited transit passage in the Northern Sea Route,32 using UNCLOS Article 234 to justify the limitations,33 and has recently implemented more extensive unilateral regulations to ensure shipping safety and environmental protection.34 With receding amounts of ice for significant portions of the year, whether the Northwest Passage or the Northern Sea Route meets Article 234’s climatic requirements for ice- covered areas is debatable.35
Under UNCLOS, coastal states seeking to prescribe sea-lanes and traffic separation schemes in straits used for international navigation must receive approval by a “competent international organization” prior to adoption.36 The International Maritime Organization (IMO) fills this role. The United States is working with other Arctic nations through the IMO to create a mandatory “Polar Code” that will cover all matters relevant to ships operating in both Arctic waters and the waters surrounding Antarctica.37 The IMO recently announced that the Polar Code will be operational as early as 2015 and will be implemented by 2016.38 The extent to which the Polar Code reconciles Russian and Canadian interests in regulating the Northern Sea Route and Northwest Passage with freedom of navigation interests will be critical.
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UNCLOS serves as the international foundation for fisheries management, giving coastal states sovereign rights over natural resources in their EEZs, a duty to conserve and the right to utilize fish stocks, and a duty to cooperate with other countries in the management of certain fish stocks.51 The 1995 United Nations Fish Stocks Agreement,52 to which the United States is a party, provides a precautionary approach to fisheries and encourages regional cooperation in management of fisheries in the high seas.53 Although UNCLOS does not provide a detailed regime through which state parties must manage fisheries, it provides a broad framework that encourages multilateral approaches to sustainable development of fish stocks.54
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No nation, including the United States, disputes the moral and economic imperative to protect the Arctic’s pristine environment. The United States understands the fragility of the region and the need to practice responsible stewardship while pursuing its Arctic interests.39 UNCLOS plays a prominent but not exclusive role in this regard.
UNCLOS creates an obligation to “protect and preserve the marine environment.”40 However, it avoids specific rules or standards in favor of creating zones of regulatory competence and providing a framework of principles designed to encourage the creation of more specific rules and standards through domestic regulation and separate international agreements.
UNCLOS provides states with exclusive, sovereign jurisdiction to regulate the environment within their territorial sea.41 States also have sovereign rights “for the purpose of exploring and exploiting, conserving and managing the natural resources . . . of the waters superjacent to the seabed and of the seabed and its subsoil,”42 and “jurisdiction . . . with regard to . . . the protection and preservation of the marine environment” in the exclusive economic zone (EEZ).43 In exercising rights and performing duties in the EEZ, coastal states must do so with “due regard” for the rights and duties of other states,44 not the least of which is freedom of navigation.
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As most of the Arctic Ocean has not been explored, one of the U.S. policy goals in the Arctic is to increase understanding through scientific research.60 Currently, the foremost scientific research interest for the United States is to obtain data regarding the geologic composition of the continental margin. In addition, the United States is pursuing research in climate variability, Arctic marine ecosystems, oil spill effects, and unconventional energy and mineral resources.61 Marine Scientific Research (MSR) in Russian arctic waters, where Russia has the longest Arctic coastline, is hampered by Russian reluctance to permit U.S. researchers access to Russian waters.
The United States has long accepted the UNCLOS regime for marine scientific research. UNCLOS gives coastal states exclusive control over scientific research in the territorial sea.62 Coastal states also have extensive rights in the EEZ, including the right to reject a request by a foreign nation or company for access to its EEZ or continental shelf if the project is of direct significance for the exploration and exploitation of natural resources63 or involves drilling into the continental shelf, the use of explosives, or the introduction of harmful substances into the marine environment.64 The convention provides all states the right to conduct marine scientific research in the high seas.65 A state’s ability to perform scientific research in the area is subject to the provisions of Part XI, the deep seabed mining regime.66 Article 143 states that all member states can conduct marine scientific research in the area, but they must provide the results of their research and analysis to the international community through the International Seabed Authority.67
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The potential implications of this extended continental shelf regime are profound. With one of the largest coastlines in the world, the United States is expected to have over 291,000 square miles of extended continental shelf.89 The U.S. continental margin off the coast of Alaska alone may extend to a minimum of 600 miles from the Alaskan baseline.90 Alaska’s extended continental shelf lies over the Arctic Alaska province, one of the many oil- and gas-rich basins in the Arctic.91 It is estimated that there may be almost 73 billion barrels of oil and oil-equivalent natural gas located in the Arctic Alaska province, the second highest estimated production capability of all Arctic provinces.92 The continental shelf within the 200-mile EEZ under the Beaufort and Chukchi Seas alone may have over 23 billion barrels of oil and 104 trillion cubic feet of natural gas.93 Not only would development of these resources promote energy independence, a U.S. national security objective,94 it would also create almost 55,000 jobs per year nationwide and generate over $193 billion in federal, state, and local revenue over a fifty-year period.95 Due to delays in Arctic oil and gas exploration in the Chukchi and Beaufort Seas, both within the U.S. 200-mile EEZ, the earliest estimated date of extraction is sometime after 2019.96
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These arguments have proven a successful rallying point for UNCLOS opponents and a potential political millstone for senators who might otherwise be inclined to support the convention. The arguments have retained force despite the fact that the United States itself originally conceived the royalty plan under the Nixon Administration, with the full support of U.S. industry—support that has remained consistent across nearly four decades. Royalties were proposed as a modest concession in return for agreement on the U.S.-sponsored extended continental shelf regime.138 Indeed, most of the oil and gas that may be recovered would be in the first six years and thus would not ever be subject to royalty payments. The “UN-style bureaucracy” argument has also endured despite the fact that opponents have presented no evidence that the ISA is either inefficient, overstaffed, or corrupt at any time throughout the nearly 19 years since its founding in 1994.
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Arctic policymakers must also overcome the inertia arising from the fact that near-term prospects for industry action on the Arctic extended continental shelf and beyond seem remote. Potential Arctic benefits, no matter how lucrative, provide little political incentive for immediate action. Incentive is further reduced by the ease with which the United States has been able to enjoy many UNCLOS benefits without joining the convention. While this has contributed to a more stable maritime legal regime conducive to U.S. global interests, it has also led UNCLOS opponents to claim successfully—albeit unwisely, and, in some instances incorrectly—that the United States can continue to exploit all UNCLOS benefits without paying the minimal costs of UNCLOS membership. Application of this fallacy to the Arctic could be costly.
The United States should join UNCLOS to fully preserve U.S. Arctic interests. Although some of the convention’s most important advantages in the Arctic may not be immediately available, UNCLOS would allow the United States to preserve maximum flexibility today for developing offshore energy resources tomorrow. In addition, accession would reinforce a legal regime favorable to other important U.S. Arctic interests as well, and deter prospects for the UNCLOS to collapse or be revised to the detriment of U.S. interests.
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Gaining exclusive sovereign rights over the full potential U.S. Arctic extended continental shelf will prove difficult, however, due to the close proximity among the United States, Russia, and Canada and the potential for overlapping claims to extended continental shelves. The Russian Federation was the first UNCLOS party to submit an extended continental shelf claim to the CLCS.97 The CLCS rejected Russia’s initial 2001 submission but permitted it to revise and resubmit its claim. Russia anticipates submitting its revised claim for its extended shelf in the Arctic by the end of the year.98 Denmark, Iceland, and Norway also submitted claims to the CLCS99 and Canada must do so by December 2013.100 This will leave the United States as the only Arctic nation that has not formally claimed the outer limits of an extended continental shelf. Moreover, if Russia accepts the commission’s recommendations, Russia’s extended continental shelf boundaries are final and binding (although it is not clear who is so bound). If the United States accedes and eventually perfects a claim to the outer limit of its extended shelf with the CLCS, there is a chance that its extended continental shelf will overlap with Russia’s. UNCLOS allows for two (or more) legitimate outer limit claims but leaves it to the parties to agree to terms that split the overlapping extended continental shelf between them. The United States has provided observations on submissions by two other states, but, as a non-party, it cannot submit a claim under Article 76.101
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The Western Gap agreement has clear implications for the Arctic, where the United States shares a potential extended continental shelf with both Russia and Canada. UNCLOS opponents suggest that questions regarding international legal title to the U.S. potential extended continental shelf in the Arctic will be resolved conclusively when the United States enters bilateral agreements with Russian and Canada respectively.156 As simple and therefore attractive as this position may be, it begs several questions.
Under what legal authority would the Arctic neighbors have the right to divide and claim for themselves an area lying, at least in theory, beyond their respective national jurisdictions? Even assuming a legitimate legal basis to claim their extended continental shelves and delimit them bilaterally, what basis would the states have for desiring to and concluding their agreements outside the UNCLOS framework, including ignoring Article 82 royalty payments? Finally, even if Russia and Canada— both UNCLOS member states—choose to comply with UNCLOS on their respective sides of delimited shelves, might they object to the United States not doing so on its side, and, if so, would they pursue their objections? And how might the outer limits of the U.S. extended continental shelf in the Arctic be determined given the geographic differences from the Western Gap situation where there were only two geographically opposite states with no third state or area interests involved?
The simple answer is that only by acceding to the convention can the United States obtain its full continental shelf rights in the Arctic.