Don't be Left out in the Cold: An Argument for Advancing American Interests in the Arctic Outside the Ambits of the United Nations Convention on the Law of the Sea
The United States must stand up, take notice, and resist any effort to grant Russia or any other nation exclusive control over the Arctic's resources. Because the United States is not a party to UNCLOS, it must argue for a solution outside the treaty. This dispute is likely to take place in multi-party negotiations, and it is imperative that the United States shore up its legal positions now.
As it has done for quite a long time, the United States may rely on the doctrine of the freedom of the high seas codified in the Convention on the High Seas to assert that it is permitted to mine and navigate the area that Russia is attempting to claim. In addition to allowing free navigation of the high seas, that doctrine, now a part of international custom, allows any nation to participate in exploitation of the resources of a vast majority of the oceans. By arguing that UNCLOS does not apply to non-parties, the United States will be able to rely on this widely-supported doctrine while extracting oil, natural gas, and minerals from the seabed. An application of this doctrine will provide the United States with the best opportunity to serve its own interests without sacrificing its sovereignty to an international tribunal.
Despite UNCLOS's mandate that the CLCS examine a nation's claim to a physically connected continental shelf, problems arise with the Commission's structure. Sessions of the CLCS are secret."' The only nation that is privy to the CLCS deliberations is the one that submitted the scientific data purporting to support an extended continental shelf claim.20 Because the CLCS "considers itself bound by States' requests to keep their submissions information confidential,"21 the executive summaries of the CLCS sessions do not contain any details. Moreover, the CLCS process itself seems to be the only check on possible abuse by a nation making a fraudulent or erroneous extended continental shelf claim. Written interventions by nations that are not opposite from or adjacent to a submitting state are not allowed.
Those in favor of UNCLOS ratification have asserted that, unless the United States becomes a party to the treaty, it will not be able to adequately protect its interests. Proponents argue that the United States will be left without a voice when the Arctic region is being divided amongst other nations. They suggest that unless the United States is able to participate in the formal processes codified in UNCLOS, Russia and the other relevant nations who may go before the CLCS will have a substantial advantage in claiming Arctic territory. But, as discussed above, the CLCS is a semi-secretive process where a nation, whether it is a party to UNCLOS or not, will not be able to contest another nation's scientific findings to the Commission." Moreover, if the matter is indeed settled through multiparty negotiations, the status of UNCLOS in the United States will likely be irrelevant because the matter will be settled outside of the treaty.
Other Nations' Claims to the Arctic Seabed. If the Senate ratified UNCLOS, thereby making the United States a party to the treaty, the United States would have no additional grounds on which to contest Russia's CLCS claim, because the CLCS does not settle disputes among nations with competing claims. Thus, U.S. participation in the UNCLOS regime would add nothing to its legal argument that it is permitted to mine the seabed and navigate the waters that Russia is attempting to claim. UNCLOS does not provide a compulsory dispute resolution technique, and because a dispute among nations is likely to arise, it is probable that the rights to the resources of the Arctic will be decided outside of its framework.
The Rights to the Arctic Likely Will Be Decided through Multi-party Negotiations Outside the Scope of UNCLOS. UNCLOS does not create a dispute resolution process through the CLCS, and there is an inherent difficulty ofproving beyond refute that the area at issue is the extension of only one nation's continental shelf. Thus, the most probable result is that the nations with competing claims will negotiate amongst themselves to reach a settlement. This makes it imperative that the United States refrain from any action that may weaken its bargaining position. By ratifying UNCLOS the United States could substantially erode its bargaining power. By becoming a party to the treaty and thus subject to the adjacent-or-opposite limitation, the United States would weaken its negotiating position if the U.S. continental shelf is not physically connected to the Arctic seabed. If the United States is a party to UNCLOS, then other nations may argue that the United States' only option is to submit a claim to the CLCS as provided in the treaty. If, however, the United States is not a party to UNCLOS, then there would be less pressure from other nations for it to proceed under UNCLOS provisions to ultimately determine the validity of any U.S. claim. Also, as a party to the treaty, the United States would lose credibility in any external settlement negotiations since it would only be subscribing to some of UNCLOS's mandates.
If UNCLOS has not become customary international law and thus does not bind the United States with respect to the Arctic area, then the United States is free to argue that the Convention on the High Seas allows it and other nations to freely mine the seabed and navigate the waters of the Arctic. The freedom to navigate the high seas is explicitly guaranteed by the Convention. The United States must argue that the Convention governs the dispute and provides all nations the ability to navigate the Northwest Passage free from interference from Canada or any other nation claiming to own the area. As a result, the United States would be claiming that the Northwest Passage is part of the "common heritage" and that any nation could navigate through it.
The most significant benefit to the United States' argument that the doctrine of the high seas still governs the Arctic Ocean and its seabed is that the United States would be able to exploit the vast natural resources through deep sea mining activities. Unlike the freedom to navigate the high seas, the freedom to mine that area is not explicitly guaranteed, although it is clearly protected. By securing the right to mine and exploit the resources beneath the Arctic Ocean, the United States would be taking a step to guarantee its energy independence and encouraging U.S. businesses to invest in deep sea mining. These two things will, of course, be critical to the U.S. economy in the foreseeable future.
By relying on the Convention and the doctrine of the high seas, the United States may bypass the UNCLOS regime altogether and begin exploration and exploitation of the Arctic area immediately. As a further benefit, the United States will not have to ratify UNCLOS in order to secure these rights. In fact, if the United States does ratify UNCLOS as many have called for, it may be relinquishing these rights completely if no valuable territory is an extension of its continental shelf. Thus, it is clearly in the United States' interest not to ratify UNCLOS and to contest the Russian land claim outside that regime's jurisdiction.