Prospects of a Paradigm Shift in the American Policy Towards UN Convention on the Law of the Sea: Potential Implications
Imperative impetus for this change in the US ocean policy comes from the ongoing climate change in the Arctic region and its potential implications for the US. Indeed, receding ice in the Arctic provides new opportunities to the US to secure its energy security and to gain economically by extracting hitherto inaccessible offshore Arctic resources and utilizing navigable Northwest Arctic Passage for commercial shipping. However, its legal status as a non-Party to the LOS Convention has kept the US ―hobbled on the Arctic‘s geopolitical sidelines‖ and acts as a stumbling block in its active participation in important international policymaking bodies- CLCS and ISBA. The US has no say in the CLCS commission with the authority to validate its national claims for extended continental shelf, which may adverserly affect the US Arctic interests. Further, non-participation in the ISBA authority may also marginalise the US interests in the deep seabed mining in the Area, beyond national jurisdiction. All these factors have point out the need for a change in the US ocean policy in recent time. These imperatives emphasize on the need to accede to the LOS Convention to advance US economic and strategic interests in the contemporary world.
America is the dominant hegemonic Power in Asia Pacific and possesses the dominant power projection38 capabilities in the region and seems committed to continue using them in a restrained manner.39 The littoral counties in the region, especially China, however, are developing the ability to deploy forces with the military capacity to threaten U.S. power projections. In particular, China‘s rapidly increasing economic power has caused widespread concern over China‘s ambitions to enhance ―blue water capability‖ for influence beyond its borders. These developments in China are of special concern to the US national interests, especially in the South-China Sea.40 In this regard, the recent statement by the Secretary of State Hillary Clinton41 in the ASEAN Regional Forum caused a lot of diplomatic tensions between the US and China. The said statement referred to the US interests in resolving territorial disputes off China‘s southern coast as ―a leading diplomatic priority,‖ thereby indicating the US intention to intercede in a region.
However, this is not the first time that the US has shown its interest in the maritime affairs in the Asia-pacific region, especially in South China Sea. The 2009 Impeccable incident is reflective of the US intensions to maintain its hegemony through power projections, even by circumventing the marine scientific research (MSR) provisions of the 1982 LOS Convention.
In the light of these observations, the US accession to the LOS Convention will have significant implications for the US interest in the South China Sea. Most notably, the LOS Convention would be applicable to the US completely as it does not allow making reservations at the time of accession. In addition, the US would be obliged to refrain from any acts that would defeat the object and purpose of the convention. Thus, by becoming a party to the Convention, the US would be constrained in the freedom to take inapt actions in the South China Sea without giving due considerations to its possible legal consequences. This may diminish the unchallenged naval power of the US in the Asia-Pacific.
As a natural corollary, the accession to the LOS Convention will provide the US access to the Convention‘s procedural mechanisms and institutions. This access is necessary for the US to secure and advance its national interests in the ocean space and play a meaningful role in the implementation of the law of the sea in the contemporary world. Firstly, accession to the LOS Convention will provide US a seat in the Commission on the Limits of the Continental Shelf (CLCS Commission), which in turn will help US to secure and advance its claim for the extended continental shelf beyond 200 nautical miles. Secondly, the US will have access to the International Sea-bed Authority (ISBA Authority) decision-making process as the member of its Council. This will help the US to protect its interests in the deep sea-bed mining activities. Thirdly, the US will get a seat in the judicial body - International Tribunal for the law of the Sea (ITLOS). This will facilitate US active participation in the judicial dispute settlement concerning ocean matters related to the interpretation or/and application of the LOS Convention. Broadly, the access to the UNCLOS-related institutions will provide an opportunity to the US to play an active role in the implementation and development of the law of the sea in the contemporary world.
Corollary to the non-accession to the LOS convention, the US can not access the institutions and mechanisms operating under the legal regime of the Convention. In the present scenario, therefore, the United States lacks legal basis to submit claims for enlarging its continental shelf beyond 200 NM to the CLCS Commission until it ratifies the LOS Convention. This in turn will hamper the US prospects of accessing the Arctic resources. In the meantime, however, state parties to the Convention - Canada, Denmark, Finland, Iceland, Norway, Sweden, and Russia - are all currently competing for valuable sea-bed overlapping rights in the Arctic and collecting evidences to make claim for an extended continental shelf (ECS) in the Arctic region. While the CLCS Commission may begin evaluating their respective ECS claims after receiving submissions at any time, the US continues to have its hands tied for its inability to use the CLCS procedure until it ratifies the LOS Convention. In sum, until the US becomes a party to the LOS Convention, it cannot access the CLCS Commission to gain legal rights to the Arctic seabed resources, nor can it enjoy voting privileges on the influential ISA Authority in influencing decision-making in deep-seabed mining in the ―Area‖ beyond the national jurisdiction.
Currently, as a non-party, the United States is not bound by the various provisions of the UNCLOS. At the same time, it also constrains the US to take full advantage of the many benefits it offers and to avoid the increasing costs of being a non-party. In contemporary world, it is implausible and unwise to think that the US can rely on military power alone to enforce its rights, particularly economic rights. Further, US certainly cannot have much influence over development of the law of the sea, stimulated by recent Arctic climate changes, by remaining outside the Convention. The evolving ocean order may be detrimental to the US national interests. By not acceding to the UNCLOS, the US is forgoing an opportunity to extend its sovereign rights over adjoining continental shelf, while simultaneously abdicating an opportunity to play a significant role in formal deliberations in the UNCLOS institutions. These shortcomings are further excerabated by the observed and potentail impacts of climate change in the Arctic region.
In this context, if we consider securing national interests as an outcome of the diplomatic bargain through inter-governmental negotiations concerning a particular ocean issue, then formal participation in the Convention processes is necessary for the US to remain at the helm of the ocean diplomacy in the contemporary world. Hence, it is imperative for the US to accede to the LOS convention, as it is a critical step toward advancing its national interests to ensure economic and strategic interests in ocean space. Imperatives of contemporary developments have given fresh impetus in the US in the direction of ratification of the LOS Convention. This section examines the factors and contemporary developments which have triggered the efforts to get consent of the US Senate to ratify LOS Convention.
Once long neglected in terms of governance and management, the Arctic is slowly attracting greater attention as a region in need of an effective legal regime following the observed and potential the impact of climate change in recent time.29 Science has provided overwhelming evidence of human-influenced Arctic climate change and the likelihood that the pace of change is accelerating. Scientists predict that the Arctic may be ice-free for the first time in recorded history by as early as 2013.30
An ice-free Arctic has two important implications. First, it will expose vast regions of seabed that are rich in natural resources, making extraction of these resources possible. It is estimated that about 30 per cent of undiscovered gas and 13 per cent of undiscovered oil can be found in the marine areas north of the Arctic Circle.31 According to the USGS estimates, Arctic region has the hydrocarbon reserves of 90 billion barrels of oil, 1,669 trillion cubic feet of natural gas, and 44 billion barrels of natural gas liquids.32 Second, an ice-free Arctic will open previously impassable shipping lanes, thereby, improving prospects for Arctic navigation. The most promising route, historically known as the "Northwest Passage" may become navigable, which would reduce the length of the voyage between the Atlantic and Pacific oceans by an astonishing 9000 kilometers.33
This will result in two separate but related problems. First, the increased value of the region due to commercial exploration and trade will prompt Arctic nations to rush to establish their claim over the region. In fact, many Arctic countries, pursuant to Article 76 of the UNCLOS, are preparing to submit requests to the United Nations Commission on the Limits of the Continental Shelf to establish the outer limits of their continental shelves.34 This has caused the spectre of rising tension over yet to be asserted maritime claims over the vast Arctic Ocean. The tension been further acerbated by the feasibility to extract the potential hydrocarbon resources in the Arctic seabed. The receding polar ice cap has ignited the competition for the mineral rights in the Arctic seabed. The competition arises from the fact that the Arctic is ―the only place where a number of countries encircle an enclosed ocean,35 which gives numerous countries a valid claim for the same territory.36