U.S. would be better able to contest Russian and Canadian excessive claims in the Arctic if it were party to UNCLOS
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U.S. freedom of navigation interests in the Arctic would be bolstered by joining UNCLOS. Both Russia and Canada have maritime claims in the Arctic that are inconsistent with the rules contained in the Convention. Russia37 and Canada38 draw excessive straight baselines in the Arctic and restrict the right of transit passage in various international straits in the Arctic, including the Northeast Passage, the Northwest Passage and vari- ous straits located within Russia’s Northern Sea Route (NSR)—the Demitri, Laptev and Sannikov Straits. Russia’s straight baselines closing the NSR straits and Canada’s straight baselines around its Arctic Islands do not meet the legal criteria contained in Article 7 of the Convention.39 According to UNCLOS Article 5, the correct baseline for these areas is the low-water line. UNCLOS Article 38 also provides that the right of transit pas- sage through international straits cannot be suspended or impeded by the bordering States. Use of straight baselines by Russia and Canada to close these international straits is therefore inconsistent with the Convention. Furthermore, under UNCLOS Article 8(2), all nations enjoy at least the right of innocent passage in areas within newly drawn straight baselines. The United States has diplomatically protested and operationally challenged these excessive straight baseline claims under the U.S. Freedom of Navigation Program, citing the provisions of UNCLOS and customary international law.40 However, the U.S. legal position would be on better footing if the United States was a party to the Convention.
Tension between Russia and other Arctic nations will remain high as they continue to compete for Arctic territory. Maintaining UNCLOS as a viable legal framework for settling Arctic territorial claims should help avert potential confrontations between Russia and other UNCLOS members.