Implications of Global Warming on State Sovereignty and Arctic Resources under the United Nations Convention on the Law of the Sea: How the Arctic is no Longer Communis Omnium Naturali Jure
Further, the responses of Arctic nations have been framed more as nationalistic and emotional arguments, rather than legal opinions. Despite the dubious legal authority of the Russian flagplanting in 2007, the incident provoked a degree of international consternation. True, a "19th Century imperial land grab" n242 in the Arctic is not a feasible outcome, since UNCLOS does provide a mechanism for resolving disputes that can be relied on to a certain extent. However, the illegality of a land grab does little to dampen the excited clamor of an Arctic "resource rush," poorly disguised by the other Arctic States. For example, Canada's Foreign Minister at the time objected to the imperial nature of Russia's expedition. n243 Prime Minister Stephen Harper also hopes that Canada's renewed commitment to the region will bolster its longterm presence and strengthen the nation's sovereignty over the Arctic. n244 A Danish scientist has stated that "'the Vikings hope to get [to the Arctic] first.'" n245 The Russian scientist and legislator Artur Chilingarov has avowed that "'the Arctic is ours and we should demonstrate our presence.'" n246 There is good reason to expect that the frenetic scramble to establish Arctic sovereignty will only gain momentum as the ice continues to recede, especially considering "the alacrity with which coastal states [first] 'implemented' the sovereign rights ... with respect to oil and gas, fisheries, and other natural resources of the economic zone and continental shelf" when UNCLOS entered into force.
While it may be peculiar that geologic structures might dictate ownership of resources,n269 Russia has obtained a competitive edge by operating persistently and adhering to the provisions of the Convention. Most importantly, other Arctic States have seen the writing on the wall. Aware of the undeniable progress Russia has made, the other littoral countries have been stirred from their casual observance of UNCLOS within the Arctic, and have undertaken new cartographic datagathering expeditions to claim as much territory as they can under the parameters of the Convention.n270 In fact, following Russia's 2001 submission, eight other countries began work on filing their own CLCS submissions under UNCLOS.
For example, Canada recently changed the nature of its Arctic claims to conform to UNCLOS procedure, by departing from simple reaffirmations of past assertions of sovereignty and instead beginning work on a continental shelf proposal due for submission in 2013.n272 Even the United States participated in a joint seabedmapping mission in the Beaufort Sea last month, a region widely considered the "top prize in the Arctic oil rush."
In particular, the rush to reclaim the Arctic is "reminiscent of early efforts to conquer Antarctica." n293 The Antarctic Treaty System is a unique international legal regime and has developed international cooperation for almost fifty years. n294 When the Antarctic Treaty was negotiated in 1959, it designated the continent as a completely demilitarized zone of peace, halting all claims of sovereignty in order to focus on exploration and scientific research. n295 Drilling was also prohibited without the approval of threefourths of the nations with voting power.
However, the South Pole is an inexact parallel. Antarctica, in contrast to the Arctic, is an expansive landmass, and over 90% of the Antarctic is entirely inaccessible. Measuring 14 million square kilometers, the continent is larger than the U.S. and Mexico combined, and dwarfs the Arctic. n296 While there is extensive marine biodiversity, the mineral and hydrocarbon resources of the Antarctic do not exist in the same commercially exploitable quantities as they do in the North Pole. n297 Several effete attempts have been made to stake a claim of sovereignty in the pursuit of Southern Ocean seabed mining, but these are without precedential value. The most dispositive reason militating against using the Antarctic Treaty system as a basis for a new Arctic regime is simply that some Arctic States are far more concerned with their own claims of sovereignty than with environmental issues.
Yet despite its problems, over the course of the years the Convention has gained support from the legislative, executive, and judicial branches of the U.S. Government. Indeed, UNCLOS has served as "the cornerstone of U.S. oceans policy since 1983."n314 In 1980, anticipating both the mass appeal of UNCLOS and the potential conflict with American interests, Congress passed the Deep Seabed Hard Mineral Resources Act n315 in order to establish a provisional regime that advanced the interests of the mining industry.n316 The Act is still in force, having been reauthorized by Congress in 1986, four years after UNCLOS was available for signing.n317
Even after refusing to sign the Convention, Reagan issued an Ocean Policy Statement in 1983 announcing that the United States "accepted, and would act in accordance with, the Convention's balance of interests relating to traditional uses of the oceans everything but deep seabed mining." n318 In an executive order several years later, Reagan further elaborated that the United States would maintain a territorial sea of twelve nautical miles in compliance with UNCLOS, and that negotiations would remain open to develop a deep seabed mining regime.n319 Faced with an obstinate Senate that refused UNCLOS in 1994, after the amended Convention was submitted for ratification, President Clinton issued a similar proclamation recognizing a contiguous zone consistent with UNCLOS in 1999.n320
Finally, U.S. domestic case law also reflects an intention to refrain from action that would be antithetical to the purposes of UNCLOS.n321 Indeed, many federal court cases consider and apply provisions of the Convention, considering it an expression of customary international law at minimum.
The inevitable market incentive to exploit Arctic resources already is experiencing growing pains. In 2008, a Las Vegas based company called Arctic Oil & Gas levied a claim to virtually all the seabed petroleum in the Arctic, which it estimates to be around 400 billion barrels of oil.n331 While acknowledging that the vast petroleum deposits are the "common heritage of mankind," the firm nevertheless filed a claim with the UN for exclusive Arctic rights.n332 Even in spite of American abstention from UNCLOS, Arctic Oil & Gas argues that the polar region needs a private "'lead manager' to organize a multinational consortium of oil companies to extract undersea resources responsibly and equitably.n333
Nevertheless, it is doubtful that anything will come of such claims given their lack of international recognition under UNCLOS. In the absence of the legal certainty that the Convention provides for sovereign rights over an extended continental shelf, it is unlikely that enough U.S. companies will be willing or able to secure the necessary financing to exploit Arctic resources, or to keep other countries from exploiting them.n334
Simply stated, accession to the Convention and adherence to its procedure based on a prolongation of Alaska's continental shelf would greatly facilitate American claims to Arctic resources, providing uniformity, predictability, and legal security. Accession also would demonstrate solidarity within the international community, bolstering a faltering reputation, and allow UNCLOS to "function as originally conceived."n369 Most important, ratification would give the U.S. a voice to assert its point of view and a recognized method to exercise jurisdiction within the Arctic.
Continuing to do nothing is an untenable position. It would be foolish and risky to assume that the U.S. can maintain ad infinitum the desultory and passive approach upon which it currently relies.n370 With the everincreasing pressure from coastal States to augment their authority in a manner that would alter the balance of interests struck in the Convention,n371 the United States "needs to be in the game, at the table."n372 Thus, unless UNCLOS is ratified, or a separate Arctic convention is negotiated, the United States will remain tenuously wedged between Scylla and Charybdis, unable to assert a recognized claim of sovereignty, influence international maritime policy, or make substantive changes to parts of the Convention it finds troubling.
Additionally, the practice of States in a regional grouping, such as the Arctic Circle, can result in special customary law for all of the similarlysituated States, applicable only in that area.n353 Further jeopardizing American interests is that the doctrine of the continental shelf in particular has been considered "instant customary law,"n354 provided that the practice of States whose interests are affected is sufficiently extensive and uniform to indicate a legal obligation.n355 If the other Arctic nations continue to assert sovereign rights, uniformly based on an extended continental shelf, America may easily be hamstrung by provisions that it does not acknowledge but nonetheless prove binding. By way of example, if an American mining corporation were to form a consortium under a bilateral treaty to harvest sea floor resources with a State that was already a member of UNCLOS, and sought to mine in an area already recognized by UNCLOS as an extension of another Arctic State's continental shelf, or even merely outside its own EEZ, it would contravene the Convention and also subject both countries to international judicial proceedings.n356
It has been suggested that the universal right of navigation under UNCLOS n357 might be able to provide an alternate legal basis for claiming Arctic economic rights.n358 However, finessing this argument into a circumvention of the Convention's obligations and limits within the Arctic would be nothing more than unilateralism disguised as political legerdemain. The blithe dismissal of UNCLOS in favor of reliance on the Grotian conception of the freedom of the high seas in order to legitimize American rights over Arctic resources mistakenly ignores the global support and position of authority UNCLOS has achieved.
Rather, in all likelihood, America might be forced to accept the modus vivendi n359 in the Arctic that has developed over two decades of widespread UNCLOS observance. If the Senate continues to blockade attempts to ratify the treaty, other contingencies should be considered, such as negotiating alternate regimes or implementing UNCLOS via executive order.n360 Should several "uncooperative members of the Senate" force the United States to the sidelines, "the shortterm political costs of resubmitting UNCLOS [as an executive agreement would be justified] by America's need to be a full player in the remainder of this Arctic competition."
Perhaps the most dangerous threat to American sovereignty in the Arctic is the enforceability of UNCLOS as part of American law, either as positive treaty based domestic law or customary international law. While the reach of the Convention may be debated under both headings to some extent, it cannot help but affect the United States' Arctic designs.
Although still pending ratification, at times UNCLOS may be assigned virtually the same legal status as if it were a properly ratified treaty, albeit in a roundabout and piecemeal fashion. If President Reagan's culling UNCLOS for acceptable provisions bound the United States to a majority of the Convention's provisions, then President Clinton committed the United States to the remainder, including the amended Part XI mining regime, by signing the Convention in 1994 in spite of an obstinate Senate.
The court in United States v. Royal Caribbean Cruises bore this out, holding that UNCLOS "carried the weight of law from the date of its submission by ... President [Clinton] to the Senate."n348 In finding that the Convention applied to an oil spill within U.S. waters, the court reasoned that the United States was obliged to honor the agreement to which the executive branch has tentatively made the United States a party, and that the submission of the treaty alone to the Senate was indicative of the America's "ultimate intention" to be bound by the Convention.n349 Following this line of reasoning, albeit to somewhat of an illogical extreme, the Supremacy Clause would place UNCLOS atop the hierarchy of domestic laws in spite of nonratification.
Even acknowledging the suspect reasoning of this theory, emphasis still will fall to customary practice to determine the extent of U.S. presence in the Arctic, which could well lead to unsatisfying results. Indeed, America's ambiguous relationship to UNCLOS has done little to affect the Convention's operation, its actions actually facilitating its application as binding customary law.