U.S. Accession to U.N. Convention on the Law of the Sea Unnecessary to Develop Oil and Gas Resources
Indeed, after Russia made its 2001 claim, five nations (Canada, Denmark, Japan, Norway, and the United States) submitted objections to the CLCS. The U.S. objection identified “major flaws” in the Russian claim, including an objection concerning whether the Alpha-Mendeleev and Lomonosov mid-ocean ridges in the central Arctic are a natural component of Russia’s continental shelf. However, the U.S. comments also noted that “the Russian submission utilizes the boundary embodied” in the 1990 U.S.–USSR treaty and that the “use of that boundary is consistent with the mutual interests of Russia and the United States in stability of expectations.”36
The CLCS agreed with the U.S. comments, stating that the U.S.– USSR boundary demarcated in 1990 reflects the boundary of the U.S.–Russia continental shelf in the Bering Sea. The CLCS recom- mended that Russia “transmit to the Commission the charts and coordinates of the delimitation lines as they would represent the outer limits of the continental shelf of the Russian Federation extended beyond 200 nautical miles in ... the Bering Sea.”37
In June 2002, in light of the objections to Russia’s ECS claim, the CLCS recommended to the Russians that they provide a “revised submission” on Russia’s claims in the central Arctic.38 Russia reportedly will make an amended submission to the CLCS at some point in the future. In addition, Canada and Russia recently signaled that they will cooperate with each other to demarcate their respective ECS boundaries in the Arctic.39
The U.S. objections to the Russian ECS submission and the CLCS’s subsequent rejection of the Russian claim call into question the repeated assertions by UNCLOS proponents that, absent U.S. accession to the convention, the United States is a helpless bystander in demarcation of Arctic ECS boundaries.40 In fact, the United States has raised objections to the CLCS on other ECS submissions, such as those made by Australia and Brazil.41
The U.S. ECS Task Force is actively collecting data in other areas around the globe where the United States has presumptive areas of ECS. In addition to the Arctic Ocean and the Bering Sea, the task force has surveyed potential ECS areas off the U.S. Atlantic and Pacific Coasts, in the Gulf of Alaska, around the Kingman Reef and Palmyra Atoll, at the Necker Ridge near Hawaii, in the Northern Mariana Islands, and near Guam.43
Once the mapping is complete, the United States will be in a position to negotiate ECS boundary treaties with nations that have maritime or continental shelf boundaries appur- tenant to U.S. territories, including Japan and Micronesia (in regard to potential ECS associated with the Northern Marianas); Kiribati (in regard to the Palmyra Atoll); and the Bahamas (in regard to the southern end of the U.S. Atlantic Coast). The United States and Canada will need to negotiate one or more treaties to delimit potential areas of ECS located in the Gulf of Alaska and areas associated with their Atlantic and Pacific maritime borders.
To summarize, despite dire warnings from the proponents of U.S. accession to UNCLOS, actual events demonstrate that the United States need not join the convention to delimit areas of its ECS, secure jurisdiction and control over those areas, and commence development of the hydrocarbon resources beneath the ECS. The United States is actively doing so in several crucial, resource-rich regions, including the Gulf of Mexico, the Arctic Ocean, and the Bering Sea. Such delimitation has been and will continue to be conducted in cooperation with neighboring countries, including Mexico, Russia, and Canada, regard- less of whether the U.S. is a member of UNCLOS.
Much of the supposed distress voiced by UNCLOS proponents stems from Russia’s 2001 submission to the CLCS, in which Russia laid claim to a vast area of Arctic ECS. The proponents incorrectly imply that Russia’s claim will result in the loss of Arctic resources that rightfully belong to the United States. According to Senator Lisa Murkowski (R–AK), for example:
[I]f we do not become a party to the treaty, our opportunity to make [a claim to the CLCS] and have the international community respect it diminishes considerably, as does our ability to prevent claims like Russia’s from coming into fruition. Not only is this a negligent forfeiture of valuable oil, gas and mineral deposits, but also the ability to perform critical scientific research.30
However, Russia’s 2001 submission to the CLCS in no way overlaps or infringes on potential areas of U.S. ECS in the Arctic. To the contrary, Russia’s claim adheres to a boundary line that the United States and the USSR agreed upon in a 1990 treaty.31 Specifically, Russia’s submission to the CLCS divides its claimed conti- nental shelf and ECS from the U.S. shelf along an agreed boundary line that extends from the Bering Strait northward into the Arctic Ocean.
Reality tells a different story. The ECS area on the U.S. portion of the western gap has been available for development since August 2001. Specifically, the Bureau of Ocean Energy Management (BOEM)22 offered the northern portion of the western gap for lease almost immedi- ately after the 2000 U.S.–Mexico ECS delimitation treaty was ratified. That treaty entered into force on January 17, 2001. Seven months later, on August 22, BOEM offered the area of U.S. ECS in the western gap in Lease Sale 180. In that lease sale, three U.S. companies (Texaco, Hess, and Burlington Resources Offshore) and one foreign company (Brazil’s Petrobras) submit- ted successful bids totaling more than $2 million for seven lease blocks in the western gap.23 BOEM has offered the ECS blocks in the western gap in 19 lease sales between August 2001 (Lease Sale 180) and March 2010 (Lease Sale 213). In connection with those sales, seven U.S. companies (Burlington, Chevron, Devon Energy, Hess, Mariner Energy, NARCA Corporation, and Texaco) submitted bids to lease blocks in the western gap. Five foreign companies—British Petroleum, Eni Petroleum (Italy), Maersk Oil (Denmark), Petrobras, and Total (France)—also bid on western gap ECS blocks during those sales. BOEM collected more than $47 million in bids in connection with lease sales on those blocks.
Of the approximate 320 blocks located in whole or in part on the western gap ECS, 65 (approximately 20 percent) are currently held under active leases by nine U.S. and foreign oil exploration companies.24
The successful delimitation and subsequent leasing of areas in the Gulf of Mexico demonstrate that the United States does not need to achieve universal international recognition of its ECS. The United States identified and demarcated areas of ECS in the western gap in cooperation with the only other relevant nation, Mexico, and that area was subsequently offered for development to U.S. and foreign oil and gas companies.25 All of this was achieved without U.S. accession to UNCLOS or CLCS approval.
It can be asked whether a non- party to the LOS Convention can legally exercise jurisdiction over its adjacent continental margin beyond 200 nautical miles or whether this entitlement is only available to parties to the LOS Convention. The answer is that there appears to exist sufficient state practice ... to support the view that, as a matter of customary international law, states can legally exercise jurisdiction over the continental margin beyond 200 nautical miles irrespective of the State’s status as a LOS Convention ratifier.11No evidence suggests that mem- bership in UNCLOS is necessary, much less essential, either to gain international recognition of the U.S.’s ECS boundaries or to claim, legally and legitimately, jurisdiction and control over its ECS resources. It is telling that proponents of U.S. accession to UNCLOS do not claim that international recognition of the U.S. territorial sea, contiguous zone, or EEZ is contingent upon U.S. accession to the convention, yet they assert that accession is the sine qua non for international recognition of the U.S. ECS.12
Despite the claims of UNCLOS proponents, the United States can successfully pursue its national interests regarding its ECS—particularly oil and gas exploitation—with- out first gaining universal interna- tional recognition of its outer limits. While such recognition may be a worthy achievement, it is of no consequence to U.S. national interests whether the 195 nations of the world affirmatively recognize America’s jurisdiction over its ECS in the Gulf of Mexico, the Arctic Ocean, and elsewhere.
While achieving unanimous international recognition for the borders of the U.S. ECS is unnecessary, it is important for the U.S. to negotiate on a bilateral basis with nations with which it shares maritime borders to delimit and mutually recognize each other’s maritime and ECS boundaries. This process is already underway in regions where the United States has presumptive areas of ECS, including resource-rich areas in the Gulf of Mexico and the Arctic Ocean.