Two decades of widespread UNCLOS observance in Arctic have given treaty status of binding customary international law

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."