Bilateral agreements are problematic for addressing Arctic disputes for a number of legal reasons
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When discussing the Arctic legal regime, the whole is not the sum of its parts. Returning briefly to the Ilulissat Declaration, the coastal Arctic states agreed together to leave the Arctic region largely unregulated, a problematic course of action given the increasing level of activity in the region.90 In addition to remembering the inadequacy of the Ilulissat Declaration, especially as perhaps the exemplification of the failures of purely bilateral talks, there are some general concerns to also consider when evaluating the salience of a bilateral solution. First, any solution crafted through using UNCLOS is a erroneous course given the US' reluctance to ratify the treaty.91 Second, any solution to the Arctic problem is only as effective insofar as the sovereigns are willing to implement that solution92, and given the previously noted insistence on the Ilulissat Declaration's sufficiency, why would states then decide to negotiate a new regime amongst ￼￼themselves bilaterally? Third, communal concepts like the “common heritage of mankind”93 or mediation processes are likely to fail because Arctic states not only disagree on the legal standards upon which such mediation would be made94, but it is also unclear under customary international law (as codified by UNCLOS) about what ￼￼￼￼level of responsibility each state owes to the other given the geographic nature of the Arctic Ocean.95 Fourth, bilateral agreements and negotiations have failed to truly resolve some key border disputes, and if after all of this time, why should the international ￼￼￼community assume that the states will solve these issues sua sponte?96 Finally, and most perniciously, the nature of the substantive problems in the Arctic virtually guarantee ￼￼￼that bilateral legal methods will be unable to achieve a resolution. Mostly because each of the state's individual policy goals are inopposite to other state's goals, and because each state may believe that it can achieve a superior outcome through its own means than through voluntary dispute resolution.97 This final point, of course, opens up a large range of additional issues that are surveyed below.
Bilateral arrangements between states over ECS claims are not a viable alternative to the existing UNCLOS regime. The comprehensive international UNCLOS regime was proposed in the first place as a way of reducing the transaction costs of formulating all of these bilateral treaties. Additionally, they would have dubious legal validity, especially in regions like the Arctic where all other nations besides the U.S. have already ratified the treaty.