Thin Ice, Shifting Geopolitics: The Legal Implications Of Arctic Ice Melt
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Oil and natural gas are not the only resources likely to be found in the Arctic valuable minerals may also exist on the seabed. Scientists have long known about unconventional mineral ore deposits known as manganese nodules. These nodules are spherical accretions of manganese, cobalt, copper and nickel which precipitate out of sea water at depth. n48 They form when warm solutions of dissolved metals from the earth's crust leach into cold ocean waters, and they are found on roughly a quarter of the ocean floor.n49 Recovering the nodules can be technically difficult. The nodules are usually found under at least 2 miles of water and dredging them stirs large quantities of sediment which seriously disrupts marine habitat.n50 Thus, excitement surrounding the minerals has calmed significantly since the 1970's.n51 Not only must the technology become cheaper and more widely available, but industrial commodity prices must also remain high to make manganese nodules profitable.n52
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Can UNCLOS be considered a powerful international agreement if the United States has not ratified it? Legitimacy relies on the internalization of external standards to substantiate the belief by an actor that a rule or institution ought to be obeyed. In the international sphere, very few laws or organizations have obtained recognition and approval of all countries. Because so few bodies govern the relations between states, any breach to the legitimacy of those bodies is clearly significant. Despite the destabilizing effect of the United States' nonratification of the UNCLOS, 157 countries and the European Community have joined in the Convention.n170 Moreover, in many areas, UNCLOS codifies preexisting customary international law of the sea that the United States already recognizes.n171 Therefore, while nonratification may weaken the UNCLOS, at the moment, it appears the rest of the world accepts the Convention as legitimate. UNCLOS will play an essential role in resolving disagreements in the Arctic, and it is critical for the United States ratify UNCLOS in the very near future.
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While it is probably already too late to prevent the Arctic ice melt, it is not too late to effectively resolve the sovereignty issues the melt will create. Thus far, the United States has not taken a significant role in the conflict or its resolution, but this type of ambivalence cannot continue as disputes escalate. Many suggest the United States join and support multilateral efforts that have already been established. Dispute resolution will be certainly be complicated and controversial; therefore, the full participation and engagement of all Arctic nations will be necessary. A geographical transformation of this magnitude has never occurred in the course of modern human history, and never has a physical change in landscape freed so many natural resources or created such new potential for trade. Therefore, it is essential that an adequate framework be developed to deal with these radical changes, and it is obvious that the framework needs not only the cooperation, but also the leadership of the United States.
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This paper began with an explanation of climate change and Arctic ice melt because predictions about future developments in the region rely on a basic understanding of these forces. As the ice melts, the Northwest Passage and the Northern Sea Route will become viable routes for summer shipping opening the region to a new reality. Merchants as well as politicians are calculating the dangers as well as the potential cost reductions associated with northern shipping routes. As the technology and infrastructure develop in the Arctic, it may become possible to utilize the region's rich natural resources. It is this prospect that has generated the most excitement among Arctic nations and precipitates the need for an effective legal regime in the area. It is my belief that UNCLOS and the Commission on Continental Shelves can provide the legal mechanisms necessary to delineate sovereignty over the continental shelves and ownership of the resources that may be discovered there. UNCLOS will inform the debates about the Northwest Passage; implicating the future of international trade. Finally, any dispute resolution in the Arctic would likely either involve a UNCLOS body, such as the International Tribunal for the Law of the Sea, or an application of UNCLOS principles. The United States' nonratification of the Convention acts as a major roadblock to advancing its national interests and settling the controversies in the region.
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Global warming is most dramatic in the Arctic. n10 In Alaska and western Canada, average winter temperatures have increased by as much as seven degrees Fahrenheit in the past 60 years.n11 Scientists agree that atmospheric warming will continue for years to come, and that this warming will significantly affect ice coverage in the Arctic. Many experts believe the particularly sharp increase in warming and melting throughout the last few decades can be attributed to both human and natural causes.n12 Because ice and snow are white, they have what is known as a "high albedo" and reflect most solar energy.n13 Albedo is a measure of how strongly an object reflects light from sources such as the sun. Water is darker and thus has a "low albedo" that absorbs most solar radiation. This creates a condition known as a "positive feedback loop" and, as a consequence, the Arctic region essentially amplifies any sort of warming trend.n14 The ocean exposed by melting ice soaks up more heat, which melts more ice and exposes more sea.n15 In the most extreme scenario, the positive feedback loop could cause extreme deterioration of Arctic sea ice, leaving the Arctic Ocean more like the Baltic Sea, covered by only a thin layer of seasonal ice in the winter.n16 At the current pace of retreat, transArctic voyages could be possible within the next five to ten years, but it remains extremely difficult to make an accurate prediction.n17