Who Gets the Oil?: Arctic Energy Exploration in Uncertain Waters and the Need for Universal Ratification of the United Nations Convention on the Law of the Sea
Although some policy officials and scholars argue countries should abandon UNCLOS and implement a new legal regime,207 such action would undermine the effectiveness of the existing legal norms provided by UNCLOS. Abandoning UNCLOS would only weaken current international Arctic law, create economic uncertainty, and pose potential security issues.208Journal of Maritime Law and Commerce. Vol. 41, No. 2 (April 2010): 151-166. [ More (9 quotes) ] In addition, the formulation, adoption, and implementation of new international Arctic legislation would, at best, be a difficult, if not impossible, process.209 Considering the enormous economic wealth at stake, coupled with the political power of today's oil, abandoning UNCLOS might erroneously be interpreted by some as encouraging military solutions to Arctic territorial disputes. "Is it Time for the United States to Join the Law of the Sea Convention."
Because of the accelerated Polar Ice Cap melting, Arctic nations now have unprecedented access to vast wealth through their extended territorial claims. As explained by Senator Richard Lugar, an UNCLOS supporter, "the CLCS '[w]ill soon begin making decisions on claims to continental shelf areas,"' and if the United States does not ratify the Convention, the United States 'will not be able to protect our national interest."'262 Critics of UNCLOS assert the Convention would permit other nations to intrude on the United States' sovereignty, thereby undermining its national security interests.263 Those arguing for UNCLOS' ratification, however, postulate that ratification would strengthen U.S. sovereignty and security.264 In fact, unless the United States ratifies UNCLOS, the United States will be less able to promote and protect its self-interest as it will be "left without a voice when the Arctic region is being divided amongst other nations."265 Specifically, the United States will not be able to participate in the extended continental shelf process pursuant to Article 76 when Russia and other Arctic nations submit their extended territorial claims to the CLCS.266 This will not only put the United States at a significant disadvantage in the Arctic region, but will also undermine the current balance of socioeconomic power among the Arctic nations. For example, without UNCLOS ratification by the United States, Russia will be able "to pursue its [Arctic] claims without opposition from America" via UNCLOS.
Because nations that actively seek Arctic resources stand to obtain strategic advantages, efficient and effective resolutions of Arctic boundary disputes are of vital importance. As the Polar Ice Cap continues to melt, Arctic nations will continue to compete for Arctic territory and accompanying natural resources. The efficient, effective, and peaceful resolution of Arctic territorial disputes will have a profound impact on geopolitics, property ownership, and international law- especially in an economic climate of escalating oil prices.284 Although the international resolution of Arctic territorial disputes will require immediate and bold diplomatic action, as explained by scholar Bruce Jackson, "[t]he fact that the Arctic, more than any other populated region of the world, requires the collaboration of so many disciplines and points of view to be understood at all, is a benefit rather than a burden."
As previously discussed, less than two weeks before President George W. Bush left the White House, the Bush Administration issued a Presidential Directive asserting that "[t]he United States is an Arctic nation."268 The Directive declares that "[t]he United States has broad and fundamental national security interests in the Arctic region and is prepared to operate either independently or in conjunction with other states to safeguard these interests."269 In addition to asserting "lawful claims of United States sovereignty, sovereign rights, and jurisdiction in the Arctic region,"270 the Directive encourages U.S. agencies to "[tlake all actions necessary to establish the outer limit of the continental shelf appertaining to the United States, in the Arctic and in other regions, to the fullest extent permitted under international law."
The terms of the Directive essentially instruct the United States to abide by UNCLOS and map the U.S. continental seabed in order to submit an extended continental shelf claim to the CLCS.272 In fact, when President Bush issued the Directive, he expressly called on the U.S. Senate to ratify UNCLOS, explaining that UNCLOS offers "[tihe most effective way to achieve international recognition and legal certainty for our extended continental shelf."273 Succeeding Vice President Biden as Senate Foreign Relations Committee Chairman, Senator John Kerry also said he would advocate for ratification of UNCLOS274 and would like to bring the Convention to a vote this year.275 As explained by Kerry, "'[i]n order to guarantee secure borders ... and protect our marine resources, we must become full partners with the other Arctic nations and ratify the U.N. Convention on the Law of the Sea."'276 Secretary of State Hillary Clinton also endorses the UNCLOS and stated during her confirmation hearings that ratifying the Convention would be a priority.