Accession to Convention on the Law of the Sea Unnecessary to Advance Arctic Interests
There is no reason to believe that the Arctic region will be characterized by military conflict between and among Arctic and non-Arctic nations. The U.S. Department of Defense maintains that there is a “relatively low level of threat” in the Arctic region because it is “bounded by nation states that have not only publicly committed to working within a common framework of international law and diplomatic engagement, but also demonstrated ability and commitment to doing so over the last fifty years.”9
The “relatively low level of threat” in the Arctic is reflected in the aforementioned Arctic policy documents. While these documents call for improvements in Arctic infrastructure, they do not call for any significant military buildup in the region. These policy documents also indicate that there is minimal overlap between U.S. national security interests in the Arctic and U.S. accession to UNCLOS.
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.
In the early 1990s, the Defense Department began to publish its operational assertions in annual reports. These reports indicate that from fiscal year (FY) 1993 to the present the U.S. Navy conducted hundreds of FON operations to dispute various types of excessive maritime claims made by 48 nations.23 The United States has issued a limited number of FON protests regarding excessive maritime claims in the Arctic Circle, including protests of Russian “historic waters” claims in the Laptev and Sannikov Straits and Canadian regulations on transit through the Northwest Passage.24
The U.S. has made clear that it will act in accordance with the customary international law of the sea, including the navigational provisions of UNCLOS, and will recognize the maritime rights of other nations in the Arctic Ocean and elsewhere. When other nations assert claims contrary to customary international law, the United States actively contests such claims through the FON Program. No evidence suggests that any Arctic nation plans to hinder U.S. military mobility in the Arctic Ocean by making excessive maritime claims. Nor is there evidence that any Arctic or non-Arctic nation intends to disregard U.S. sovereignty over its territorial sea off Alaska.
The Freedom of Navigation Program. The United States is not passive in protecting its navigational rights. It actively protects them by protesting excessive maritime claims made by other nations and by conducting operational assertions with U.S. naval forces to physically dispute such claims. The United States engaged in these activities well before the adoption of UNCLOS.18
These diplomatic and military protests were formally operationalized as the Freedom of Navigation (FON) Program in March 1979 during the Carter Administration.19 The FON Program was instituted to counter attempts by other nations to “extend their domain of the sea beyond that afforded them by international law.”20 every U.S. Administration since President Carter has adopted and pursued the FON Program.21 When President Reagan decided not to sign UNCLOS in 1983, he confirmed that the United States would nevertheless continue to protect its navigational rights:
[T]he United States will exercise and assert its navigation and overflight rights and freedoms on a worldwide basis in a manner that is consistent with the balance of interests reflected in the convention. The United States will not, however, acquiesce in unilateral acts of other states designed to restrict the rights and freedoms of the international community in navigation and overflight and other related high seas uses.22
The FON Program is relatively unknown to the public due to the fact that the vast majority of FON operations are conducted in relative obscurity, with a few notable exceptions, such as the operations in the Gulf of Sidra in 1981 and 1989 (challenging Libya’s claim of “historic waters” in the Gulf) and the “Black Sea Bumping” incident in February 1988 (challenging an excessive claim made by the Soviet union regarding its territorial sea).
Nevertheless, some proponents of U.S. accession maintain that joining the convention would assist the United States in attaining its interests because it establishes a legal framework for virtually all maritime issues and codifies widely accepted international law. It is challenging to assess with any certainty the merits of such vague claims promising intangible benefits.
The intangible benefits, if any, that may or may not come from having a “seat at the table” at the UNCLOS annual meetings of states parties is by its nature difficult to prove or quantify in any meaningful way. The agenda of these conferences in New York is concerned with nonsubstantive matters— e.g., the nomination, election, and remuneration of representatives to the International Tribunal for the Law of the Sea and the CLCS, budgetary matters, and credentialing for conference attendees.66
No great debates are taking place at these annual meetings regarding maritime hydrocarbon resources, excessive maritime claims, proper and improper activities within the EEZ, commercial fishing, development of the continental shelf, or seemingly any other substantive matter dealing with the law of the sea in the Arctic or elsewhere.
Many UNCLOS proponents maintain that the United States would benefit from joining the convention because it could nominate a U.S. national to the CLCS. These proponents imply that a U.S. national on the CLCS will directly benefit the United States and help to advance its ECS claims. Secretary Clinton, for example, testified, “We need to be on the inside [of the CLCS] to protect and advance our interests.”67 Yet any U.S. national elected to the commission serves in his “personal capacity,” meaning that he cannot defend or otherwise represent the views or interests of the United States on any U.S. ECS claim.68 Additionally, the substantive analysis of any ECS claim made by the United States would be conducted by a seven-member subcommission on which the U.S. member may not sit.69
The major remaining U.S. ECS boundary to be determined in the Arctic is shared by the United States and Canada. As was the case with Russia, the U.S. and Canada have approached the demarcation of this boundary cooperatively. The two nations have a mutual interest in determining the extent of their respective continental shelves and identifying their respective areas of ECS.
To that end, the U.S. and Canada have conducted a series of joint scientific operations in the Arctic to collect bathymetric and seismic data to map the continental shelf.40 These data will enable the United States and Canada to negotiate a bilateral treaty delimiting their respective continental shelves and areas of ECS in the Arctic Ocean in the same manner as the U.S. and Mexico did in the Gulf of Mexico. United States need not join the convention to demarcate areas of its Arctic EEZ and ECS, secure jurisdiction and control over these areas, and develop the hydrocarbon resources in these areas. Such demarcation has been and will continue to be conducted in cooperation with neighboring Arctic nations regardless of whether the U.S. is a UNCLOS member.
In the Arctic, much of the supposed distress voiced by UNCLOS proponents stems from Russia’s vast claim of Arctic ECS that it submitted to the CLCS in 2001. The proponents incorrectly imply that Russia’s claim will result in the loss of Arctic resources that belong to the United States. According to Senator Lisa Murkowski (R–AK), for example, the U.S. failure to accede to UNCLOS would cause “a negligent forfeiture of valuable oil, gas and mineral deposits.”35
But the United States has not and will not “forfeit” a drop of Arctic oil to Russia or any other nation. For one thing, Russia’s claimed ECS area does not overlap any part of the U.S. Arctic ECS. To the contrary, Russia’s claim respects a boundary that the United States and the uSSR negotiated in 1990—the “Baker– Shevardnadze line.”36
The Russian claim extends the Baker–Shevardnadze line from the Bering Strait all the way to the North Pole, likely resulting in an excessive ECS claim in the central Arctic. However, Russia’s potentially excessive claim is located to the north of the limits of the U.S. ECS area. While the Russian claim may overlap with Canada’s ECS claim, it does not overlap any U.S. ECS area.37
In short, there is no conflict between the United States and Russia regarding the division of Arctic resources, including hydrocarbons. even if there were a conflict, Russia’s claim cannot be approved by the CLCS and would not be recognized by the United States (or Canada). Both UNCLOS and the CLCS’s procedural rules prevent the commission from considering any ECS area where there are overlapping claims: “In cases where a land or maritime dispute exists, the Commission shall not consider and qualify a submission made by any of the States concerned in the dispute.”38
The United States may object to excessive ECS claims made by any member of UNCLOS even though the U.S. is not a party to the convention. Indeed, after Russia made its 2001 claim, the United States, Canada, Denmark, Japan, and Norway each filed objections with the CLCS. In June 2002, as a result of the objections, the CLCS recommended to Russia that it provide a “revised submission” on its Arctic ECS claim.39 Russia reportedly will make an amended submission to the CLCS at some point in the future.
Yet history has repeatedly and definitively debunked the notion that recognition of U.S. ECS claims is contingent on U.S. membership in UNCLOS or on the approval of an international commission. To the contrary, through bilateral treaties with the Cook Islands, Cuba, Mexico, Russia, the united Kingdom, and Venezuela, the United States has successfully established its various maritime boundaries and the limits of its continental shelf and ECS.
The United States has also acted unilaterally through presidential proclamations and acts of Congress to set its maritime boundaries and lay claim to the natural resources within its maritime zones and continental shelf:
- In 1945, President Harry Truman issued two proclamations. The first, the Policy of the United States with Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf, claimed jurisdiction and control over the natural resources of the U.S. continental shelf.27 Truman’s second proclamation established a conservation zone for U.S. fishery resources contiguous to the U.S. coast.28
- In 1953, Congress codified Truman’s continental shelf proclamation by enacting the Outer Continental Shelf Lands Act, which declared that “the subsoil and seabed of the outer Continental Shelf appertain to the United States and are subject to its jurisdiction, control, and power of disposition.”29
- In 1983, in the wake of his decision not to sign UNCLOS, President Reagan proclaimed the existence of “an exclusive economic Zone in which the United States will exercise sovereign rights in living and nonliving resources within 200 nautical miles of its coast.”30 In 1988, Reagan followed up his EEZ proclamation by extending the breadth of the U.S. territorial sea from 3 nm to 12 nm.31
- In 1999, building on Reagan’s maritime proclamations, President Bill Clinton extended the U.S. contiguous zone from 9 nm to 24 nm.32 No nation or group of nations, much less the “international community” as a whole, has objected to or otherwise challenged the unilateral proclamations by Presidents Truman, Reagan, and Clinton. No nation disputes that the United States has a 12 nm territorial sea, a 24 nm contiguous zone, a 200 nm EEZ, or jurisdiction and control over the natural resources of its continental shelf and ECS. In fact, foreign nations recognize and respect U.S. maritime claims and boundaries, and vice versa, as long as those claims and boundaries conform to widely accepted international law, including provisions of customary international law reflected in UNCLOS.