The Evolving Arctic: Current State of U.S. Arctic Policy
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Conservative political factions are not in favor of working in cooperation with United Nations (parent organization of the International Maritime Organization (IMO) Furthermore, they do not want the United States to subject itself to international tribunals have effectively prevented U.S. accession to UNLCOS. But UNCLOS accession is supported from all the military service chiefs and the Chairmen of the Joint Chiefs, who have traditionally been highly selective with respect to treaties and how they potentially affect U.S. service members. For example, they expressed concern over the Rome Statute of the International Criminal Court (ICC) because it was believed to place U.S. personnel at risk for trial by an international tribunal. But this is not true for UNCLOS because the service chiefs believe UNCLOS will support, rather than thwart, U.S. operations.22 As the principal force behind the negotiation of UNCLOS in Montego Bay back in 1982, the treaty encompasses everything the U.S. military wants, and is not the “bogey man.”
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UNCLOS must be the legal bedrock of U.S. Arctic policy. UNCLOS is the framework of cooperation within the region. Other nations have rejected the push for an Arctic treaty, like the Antarctic Treaty, favoring instead the UNCLOS structure.245 By ratifying UNCLOS, the U.S. will advance a “remarkable treaty that expands U.S. sovereign rights, powerfully serves U.S. needs for the Navy and the Coast Guard, and provides American industry with the security necessary to generate jobs and growth.”246 By joining the UNCLOS alliance, the U.S. will be better able to settle maritime claims and disputes between other Arctic nations on issues such as outer continental shelf and maritime boundary line issues. The U.S. will also be in a better position to challenge the jurisdictional claims of both Russia (Northern Sea Route) and Canada (Northwest Passage). Only through UNCLOS can the U.S. make rightful claim to the Extended Continental Shelf and the natural resources within it. Implementation requires Congressional action and pressure by the Administration to get UNCLOS to a vote in the Senate.
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There are a few conservative policy makers who believe UNCLOS is an impediment to U.S. sovereignty; they do not support the U.S. joining UNCLOS.62 But they are in the minority.63 According to the University of Virginia Center for Oceans Law and Policy, the Secretary of Defense, Commandant of the Coast Guard, Chairmen of the Joint Chiefs of Staff and numerous elected officials support the U.S. joining UNCLOS.64 Additionally, every president since Clinton has pushed for ratification, but the treaty has not survived the Senate, most recently in 2004.65 The ratification of UNCLOS would help the U.S. gain greater influence, sovereignty, and improve strategic vision and cooperation in the Arctic region.66 It appears there are a minority of influential members of the Senate who do not want the U.S. subject to the jurisdiction of an international tribunal (International Law of the Sea Tribunal), which accession would require.
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The U.S. currently treats UNCLOS as customary international law, which means that where the U.S. can abide by the language of the treaty, it does. In practice, the U.S. recognizes the majority of the treaty as binding due to many years of custom, which renders most of the treaty as international law and therefore binding on all nations. Unfortunately, this does not allow the U.S. to participate in the dispute resolution guidelines laid out in the treaty because these are not recognized as customary international law. The dispute resolution guidelines are relatively new in the course of history, so the only way to benefit from these provisions is to accede to the treaty. As a result, current maritime boundary line disputes in the Arctic with Canada must be dealt with on a bi-lateral level only and not under the dispute resolution mechanisms established under UNCLOS. This is duplicative, wasteful, and lacks predictability of eventual resolution. The tools and mechanisms of UNCLOS appear to be a better way to deal with dispute resolution as it is seen as the standard method of resolution by all signatories.
The U.S. and Canada have long been in dispute over the waters of the Northwest Passage, which Canada claims are internal waters not subject to the conventions of “innocent passage” as established under customary international law and UNCLOS, while the U.S. regards these waters as an international strait for navigational purposes, through which ships can pass without interference by the coastal state (Canada).67 The Northwest Passage that crosses over North America would cut shipping routes between ports in Asia and U.S. east coast by nearly 5,000 miles.68 Since the U.S. lacks standing under the treaty, it is arguing from a position of weakness with respect to the Northwest Passage and threat to Freedom of Navigation.
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Another argument for acceding to the treaty is that as of 2004, UNCLOS members have the ability to alter the terms of the treaty.70 As a non-member, the U.S. cannot protect its interests or the hard work done by U.S. negotiators in the development of the 1982 treaty. The seven other Arctic nations have made UNCLOS a mainstay of their respective Arctic strategies. And while not a party to UNCLOS, the U.S. engages with the Arctic Council to ensure international cooperation in the region. UNCLOS’s importance was summed up well in a May 2013 speech at the Center for Strategic and International Studies. Admiral Papp, the Commandant of the Coast Guard, stated, “to exercise leadership, improve our ability to influence outcomes, and effectively interact with other Arctic Nations, we urgently need the Senate to approve U.S. accession to the treaty.”71
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Like the other Arctic nations, except the U.S., Russia is a signatory to UNLOS. The USSR became a signatory in 1982; UNCLOS was later ratified in 1997 by the Russian Federation.117 Russia has utilized the provisions of UNCLOS to advance sovereignty, especially along the Northern Sea trade route, which passes through Russia’s northern Exclusive Economic Zone (EEZ). Russia is using UNCLOS provisions in an attempt to exercise control over the Northern Sea route by requiring vessels to seek permits and submit their vessels to inspection due to the ice conditions. This is considered an overreach of authority by the U.S., which is protesting the plans.118 As a non-party to UNCLOS, the U.S. cannot utilize the established means of the treaty to protest.
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Norway’s Arctic Strategy is a well-developed plan of action, which could be a lesson for U.S. policy makers. Unlike the U.S., Norway has always identified strongly with the Arctic and is dedicating resources and funding for Arctic projects. In order to build influence in the region, Norway has pushed to expand the Arctic Council to other nations. Through UNCLOS’ dispute resolution mechanism, Norway has been working to settle maritime border disputes with her neighbors in a manner that would likely not be possible in simply bi-lateral talks. Norway’s contemporary Arctic strategy is focused on cooperation with Arctic neighbors, not competition. This will be critical for ensuring sustainable natural resource management, security, and for upholding UNCLOS as a framework for Arctic governance.
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United States accession to UNCLOS is critical to ensure sovereignty in the Arctic. UNCLOS provides specific guidance for dealing with maritime borders disputes and the outer continental shelf claims through an international tribunal and arbitration.221 Currently as a non-signatory to UNCLOS, the U.S. is not able to avail itself of these provisions and can only engage bi-laterally as needed.
The consequences of this are becoming increasingly clear in relationships with Canada and Russia, with whom the U.S has active maritime border disputes. The U.S. is in dispute with the Russian Federation over the Bering Strait and with Canada over the waters of the Northwest Passage (NWP). The NWP crosses over North America, in an area that Canada claims are internal waters not subject to the conventions of “innocent passage” as established under customary international law and UNCLOS. On the contrary, the U.S. regards the waters of the NWP as an international strait for navigational purposes, through which ships can pass without interference by the coastal state (Canada).222 The opening of the Northwest Passage would have a global impact on marine transportation. It would cut shipping routes between ports in Asia and U.S. east coast by nearly 5,000 miles.223 Due to a lack of standing under the UCLOS treaty, the U.S. is arguing from a position of weakness with respect to the statuses of the Northwest Passage, the Northern Sea Route, and the Bering Strait and the subsequent threat to Freedom of Navigation.
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Additionally, UNCLOS contains specific provisions for extended Outer Continental Shelf (OCS) claims. Besides massive deposits of oil and gas, the Arctic contains major mineral deposits such as nickel, iron ore, tin, uranium, copper, and other rare earth minerals. Every Arctic nation is accessing locations and methods to extract these resources.224 In the massive land grab for natural resource rich areas that has been going on between the other seven Arctic nations, the U.N. as detailed in UNLCOS is the arbiter. As a non-party, the U.S. is left out in the cold with respect to OCS claims. The OCS is rich in natural resources and opportunities for positive economic impact. According to the U.S. Geological Service, the U.S. Arctic contains 29.96 billion barrels of oil and 72 billion barrels of natural gas (about 33 percent of technically recoverable oil and 18 percent of technically recoverable gas in the entire Arctic).225 Although the U.S. abides by the rules of UNCLOS without having ratified it, it trails behind the remainder of the Arctic states on its policy and in asserting its presence in the region.226 Signing and ratifying UNCLOS, like Canada, would prove to be an excellent framework for shaping U.S. Arctic policy and advancing the current blueprint for the region.
Some may argue that U.S. does not need UNCLOS due to the Arctic Council and the active role the U.S. has taken. Despite raising awareness about Arctic issues, the Arctic Council lacks any regulatory authority or the power to address military issues.227 As a result, the Arctic Council is limited in overall effectiveness and accession to UNCLOS is a better avenue to assert U.S. sovereignty in the region.