An Arctic Race: How the United States' Failure to Ratify the Law of the Sea Convention could Adversely Affect its Interests in the Arctic
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Determination of who owns the Arctic Ocean and any resources that might be found beneath those waters will have significant economic implications. The U.S. Department of Energy predicts a decline in petroleum reserves and, despite oil prices topping $146 in June 2008, the demand for oil is growing.6 In addition to the vast mineral resources, the unpredictability of the Persian Gulf region makes the Arctic region even more attractive for exploitation. Russia and Norway have already submitted their claims to the Commission on the Limits of the Continental Shelf (“the Commission”), while Canada and Denmark are collecting evidence to prepare their submissions in the near future.7 All of these nations can gain considerable oil and gas resources as a result of the Convention.
However, one Arctic state has so far failed to join the race. Unlike the other Arctic nations, the United States has not ratified the Convention. Although the United States has complied voluntarily with the Convention, the failure to ratify the Convention could foreclose its ability to tap into potential energy resources. This failure could prevent significant contributions to American energy independence, and increase security threats. Thus, the best way to guarantee access to the Arctic’s resources and to protect other economic and non-economic interests is for the United States to become a party to the Convention.
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According to the U.S. Geological Survey, the Arctic region is the largest unexplored prospective area for petroleum remaining on earth.21 The agency estimated that the Arctic may hold as much as ninety billion barrels of undiscovered oil reserves, and 1,670 trillion cubic feet of natural gas.22 This would amount to 13% of the world’s total undiscovered oil and about 30% of the undiscovered natural gas. With an average consumption rate of eighty six million barrels per day, “the potential oil in the Arctic could meet global demand for almost three years.”23 The Arctic’s potential natural gas resources are three times bigger, which is equal to Russia’s gas reserves, which are the world’s largest.24
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While the Convention appears to be a widely supported agreement, it has failed to receive consent of the Senate. The opposition has focused mainly on a few “primarily ideological, objections to the Convention so as to take advantage of several procedural customs within the Senate . . . .”102 The most often cited argument against ratifying the Convention involves the surrender of U.S. sovereignty. However, as noted in section III, the Convention actually expands the United States sovereignty rights. It grants the United States exclusive rights to a twelve-mile territorial sea, a 200-mile EEZ, and finally a possibility to extend its continental shelf up to 350 miles.103 This brings an additional 4.1 million miles2 of ocean under American jurisdiction.
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In addition, critics of the Convention argue that by ratifying the Convention, the United States would set the wrong precedent by subjecting itself to the authority of international organizations created by the Convention, i.e., the ISA and the Commission.105 Because the decision- making process in these organizations usually requires a majority vote, the United States would have to face “regional, economic, or political blocs that coordinate their votes to support outcomes counter to U.S. interests.”106 However, if the United States ratifies the Convention, it would permit the United States to nominate members for such bodies. As a result, the United States would either have veto power or would have to get concurring votes to prevent an adverse decision.107 Moreover, having American representation in the bodies created by the Convention would ensure that the Convention is interpreted and applied in a manner consistent with United States’ interests.
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International customary laws have developed out of “concordant practice by a number of states . . . over a considerable period of time,” when such practice is thought to be required by, or consistent with, the prevailing international law, and when such practice is generally accepted by other states.117 As mentioned in section III, the Convention itself is based in part on international customary laws. In addition, when an issue is not regulated by the Convention, the customary laws serve a gap-filling role, and because the Convention binds only its signatories, customary international law remains an important means of transacting with non-signatories of the Convention.118 However, the Convention expands the “existing norms to suit new developments where the existing norms are no longer sufficient,” creates new norms, and in some cases replaces old norms that are no longer appropriate.119 Thus, asserting customary international law will not secure all the benefits of the Convention for the United States because the signatories of the Convention do not have to extend specific rights established in the Convention, or those which are modifications of the existing rules, to non-signatories.120 For example, Canada may choose not to grant the United States the right of scientific research in the EEZ or in the continental shelf.121
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Furthermore, experts often disagree on the existing norms of international law.122 The ambiguity exists because the international customary law that applies to ocean activities is derived from numerous conventions, judicial decisions, state practice, and interpretations by international organizations. The customary law is not universally accepted, and it changes over time based on state practice.123 To obtain financing and insurance and avoid litigation risk, “U.S. companies want the legal certainty that would be secured through the Convention’s procedures in order to engage in oil, gas, and mineral extraction on our extended continental shelf.”124 Also, American companies may not use customary law to claim the right to seabed mining. There is no customary practice for dealing with seabed mining, and such practice is necessary for the formation of customary law.125
Moreover, because it is so difficult to prove the extent of customary law, according to some experts, “[a]bsent express agreement, mandatory obedience to the decisions of international organizations or tribunals is for all practical purposes out of the question.”126 The weaker the sense of legitimacy, the less restrained state practice is likely to be. There is a tendency among nations “to take treaty obligations more seriously than customary law obligations,” which leads to increased self-restraint.127 As Admiral Mullen testified when he was Vice Chief of Naval Operations, “[i]t is too risky to continue relying upon unwritten customary international law as the primary legal basis to support U.S. military operations.”128
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Additionally, entering into a treaty with other countries in which each country would recognize each other’s claim relating to deep seabed development would be of dubious legal validity. Article 137(3) of the Convention provides that “no state or natural or judicial person shall claim, acquire or exercise rights with respect to the minerals recovered from the Area except in accordance with this part. Otherwise, no such claim, acquisition or exercise of such rights shall be recognized.”133 Thus, entering into a treaty with other Arctic nations which have ratified the Convention and upon which the Convention is binding would not assure the United States access to mineral resources beneath the Arctic Ocean.134
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The Convention also gives the United States an opportunity to expand its sovereignty rights over resources on and under the ocean floor beyond 200 nautical miles to the end of its continental shelf, up to 350 nautical miles.140 This mechanism is especially valuable to the United States as it would maximize legal certainty regarding the United States’ rights to energy resources in large offshore areas, including the areas of the Arctic Ocean. However, the United States must ratify the Convention for its claims to be internationally recognized.141 Not surprisingly, the American oil companies favor ratification, as it will allow them to explore oceans beyond 200 miles off the coast, where evolving technologies now make oil and natural gas recoverable.142 If the United States ratifies the Convention it could expand its areas for mineral exploration and production by more than 291,383 square miles.143 The United States’ claim under article 76 would add an area in the Arctic (Chukchi Cap) roughly equal to the area of West Virginia.144 With a successful claim the United States would have the sole right to the exploitation of all the resources on and under the Arctic Ocean bottom. These potential energy resources could make significant contributions to United States energy independence. Because the Convention is the only means of assuring access to the mineral resources beneath the Arctic Ocean, American companies “wishing to engage in deep seabed mining operations will have no choice but to proceed under the flag of a country that has adhered to the treaty.”145
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The Convention preserves key rights of navigation and overflight. According to Deputy Secretary of Defense John D. Negroponte, the Convention provides for a “legal framework . . . [which] is essential to the mission of the Department of Defense, and the Department of Homeland Security . . . .”147 The Convention grants American ships the right of innocent passage, allowing ships transit through the territorial seas of foreign countries without having to provide advance notice or request permission.
Moreover, the Convention establishes the right of transit passage through international straits such as the Straits of Singapore and Malacca or the Strait of Gibraltar. This right, which is absolutely critical to U.S. national security, may not be suspended, hampered, or infringed upon by coastal States.148 Also, the Convention creates the Archipelagic sea lanes passage that allows transit through routes in archipelagic states, such as Indonesia.149 Additionally, the provisions creating EEZ give the American military “the ability to position, patrol, and operate forces freely in, below, and above those littoral waters.”150
Finally, the Convention secures the right of American warships to operate on the high seas, “which is a critically important element of maritime security operations, counter-narcotic operations, and anti- proliferation efforts.”151 The Convention’s navigational rights led to its support by all branches of the military: Secretary Gates, the Joint Chiefs of Staff, the Military Department Secretaries, all of the Combatant Commanders, and the Commandant of the Coast Guard.152
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As the global climate is warming up rapidly, leading to ice-free summers in the Arctic Ocean, Arctic nations are confronting the prospect of new rights over the Arctic’s vast natural resources. All Arctic nations— Canada, Denmark, Norway, Russia—except for the United States, ratified the Convention and have already submitted, or are preparing to submit, proposed limits for their extended continental shelves to the Commission. The submissions will enable these countries to obtain international recognition over their extended continental shelves in the Arctic, including exclusive rights over oil and gas reserves.
As a nation with an extensive coastline and a continental shelf with enormous oil and gas reserves, the United States has much more to gain than lose from joining the Convention. Furthermore, the uncertainties stemming from the customary law make it a less effective measure to protect American interests. Only a universal regime such as the Convention can adequately safeguard the United States’ interest in the Arctic Ocean. The best way to guarantee access to the Arctic’s resources is for the United States to become a party to the Convention.