U.S. Policy in the Arctic: The Implications of the South China Sea Arbitration Award on American Policy and UNCLOS
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Following the award in the matter of the South China Sea, is the U.S. better ratifying UNCLOS? Yes. While the U.S. has maintained that most UNCLOS is customary international law and as such has followed it, the U.S. is failing to take advantage of the provisions relating to the continental shelf. Also, they are losing out on an important dispute resolution tool. While the U.S. enjoys strong relationships with most arctic states, Russia is a notable exception. Russia has been increasingly aggressive worldwide, but they have no history of violating the law of the sea. By not acceding to UNCLOS, the U.S. has removed itself from the body of international law Russia seems to respect.
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In the end, ratifying UNCLOS would make sense because the U.S. follows the convention as a matter of policy and customary law. By not ratifying UNCLOS, the U.S. has given up access to pursue an extended continental shelf and access to the convention’s dispute resolution mechanisms. Nevertheless, the U.S. will still be held to most of the provisions as a matter of customary international law. However, when approaching the question from the point of view of the country’s Arctic interests, it appears inconsequential. As a member of the Arctic Council, and its declaration to follow UNCLOS as a group, the U.S. may have found a way into dispute resolution proceedings. Applying the lessons from the South China Sea arbitration award to this question furthers the idea that signing UNCLOS would not serve to further the U.S. interests in the Arctic. While using the ruling on features to limit Canada’s maritime entitlements in the Arctic is interesting, it is highly unlikely to ever come up. The main corollary between the ruling and real disagreements in the Arctic is the status of both the Northwest Passage and the Northern Sea Route. In each case, the ruling would aid the U.S.’s arguments that the routes are international passages. However, the Arctic Council provides its own mechanism for resolution, and may provide a window into UNCLOS mandatory proceedings.