While some media reports have attempted to link Canada and Russia’s increased military focus on the Arctic as evidence of a desire for military confrontation over Arctic resources,53 there is little in terms of strategic intent that would lend credibility to such claims. In Canada’s case, it has long perceived the need to demonstrate a tangible presence over the vast Arctic territory it claims as its own. The sheer scale of the territory in question, and the costs and logistics associated with maintaining even a modest presence in the Arctic, has historically led to Canada talking tough on Arctic sovereignty, but doing little by way of action. As the Arctic now becomes more accessible, Canada merely recognises the need to match its actions more closely with its rhetoric. If the Canadian government follows through with the majority of the initiatives mentioned above, it would only serve to reinforce Canada’s Arctic sovereignty claims and be seen by its own public to be taking action on a highly topical issue. These actions will not destabilize the Arctic, provided that the Canadian government is clear and consistent in communicating its intent.
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Sharp, Todd L. "The Implications of Ice Melt on Arctic Security." Defence Studies. Vol. 11, No. 2 (June 2011): 297-322. [ More (6 quotes) ]
Both Canada and the Russian Federation have enacted regulations that the United States believes amount to unwarranted restrictions on the right of transit passage. Canada, for example, imposed a mandatory ship reporting and vessel traffic service system (NORDREG) that governs transit through the Northwest Passage.29 NORDREG covers Canada’s EEZ and the several Northwest Passage routes in the Canadian Arctic Archipelago.30 Canada specifically cites UNCLOS Article 234 to justify NORDREG, asserting that the reporting requirements are to prevent and reduce marine pollution from vessels in the delicate Arctic waters.31 Similarly, the Russian Federation has historically limited transit passage in the Northern Sea Route,32 using UNCLOS Article 234 to justify the limitations,33 and has recently implemented more extensive unilateral regulations to ensure shipping safety and environmental protection.34 With receding amounts of ice for significant portions of the year, whether the Northwest Passage or the Northern Sea Route meets Article 234’s climatic requirements for ice- covered areas is debatable.35
Under UNCLOS, coastal states seeking to prescribe sea-lanes and traffic separation schemes in straits used for international navigation must receive approval by a “competent international organization” prior to adoption.36 The International Maritime Organization (IMO) fills this role. The United States is working with other Arctic nations through the IMO to create a mandatory “Polar Code” that will cover all matters relevant to ships operating in both Arctic waters and the waters surrounding Antarctica.37 The IMO recently announced that the Polar Code will be operational as early as 2015 and will be implemented by 2016.38 The extent to which the Polar Code reconciles Russian and Canadian interests in regulating the Northern Sea Route and Northwest Passage with freedom of navigation interests will be critical.
The major remaining U.S. ECS boundary to be determined in the Arctic is shared by the United States and Canada. As was the case with Russia, the U.S. and Canada have approached the demarcation of this boundary cooperatively. The two nations have a mutual interest in determining the extent of their respective continental shelves and identifying their respective areas of ECS.
To that end, the U.S. and Canada have conducted a series of joint scientific operations in the Arctic to collect bathymetric and seismic data to map the continental shelf.40 These data will enable the United States and Canada to negotiate a bilateral treaty delimiting their respective continental shelves and areas of ECS in the Arctic Ocean in the same manner as the U.S. and Mexico did in the Gulf of Mexico. United States need not join the convention to demarcate areas of its Arctic EEZ and ECS, secure jurisdiction and control over these areas, and develop the hydrocarbon resources in these areas. Such demarcation has been and will continue to be conducted in cooperation with neighboring Arctic nations regardless of whether the U.S. is a UNCLOS member.
For example, the Arctic is a large area where multiple countries currently assert their jurisdiction. Countries have begun their expansion due to the effects of global warming.132 Because of rising ocean temperatures, ice caps have melted, causing areas that were once covered by ice to be accessible by ships.133 Countries have begun experimenting with new shipping routes and are actively searching for natural resources in the region.134 The search for natural resources has only just begun, as the resources are now accessible in the water.135 The ice caps that once served as a difficult obstacle to bypass are gradually disappearing, making access to the region much easier.
In particular, the United States has a large extended continental shelf in the Arctic, full of these untapped resources.136 The United States would be in a better position to argue disputes, such as one with Canada concerning the emerging neutral territory, if it acceded to UNCLOS.137 As Secretary Panetta noted:
Joining the Convention would maximize international recognition and acceptance of our substantial extended continental shelf claims in the Arctic. As we are the only Arctic nation that is not a party to the Convention, we are at a serious disadvantage in this respect. Accession would also secure our navigation and over-flight rights throughout the Arctic, and strengthen our arguments for freedom of navigation through the Northwest Passage and Northern Sea Route.138
Acceding to UNCLOS would help the United States solidify security over its jurisdiction in the Arctic, by providing both new trade routes and opportunities for deep seabed mining and the legal framework to support these activities.
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Gallagher, Marjorie Ellen. "The Time is Now: The United States Needs to Accede to the United Nations Convention on the Law of the Sea to Exert Influence over the Competing Claims in the South China Sea." Temple International and Comparative Law Journal. Vol. 28. (2014): 1-26. [ More (7 quotes) ]
The U.S. currently treats UNCLOS as customary international law, which means that where the U.S. can abide by the language of the treaty, it does. In practice, the U.S. recognizes the majority of the treaty as binding due to many years of custom, which renders most of the treaty as international law and therefore binding on all nations. Unfortunately, this does not allow the U.S. to participate in the dispute resolution guidelines laid out in the treaty because these are not recognized as customary international law. The dispute resolution guidelines are relatively new in the course of history, so the only way to benefit from these provisions is to accede to the treaty. As a result, current maritime boundary line disputes in the Arctic with Canada must be dealt with on a bi-lateral level only and not under the dispute resolution mechanisms established under UNCLOS. This is duplicative, wasteful, and lacks predictability of eventual resolution. The tools and mechanisms of UNCLOS appear to be a better way to deal with dispute resolution as it is seen as the standard method of resolution by all signatories.
The U.S. and Canada have long been in dispute over the waters of the Northwest Passage, which Canada claims are internal waters not subject to the conventions of “innocent passage” as established under customary international law and UNCLOS, while the U.S. regards these waters as an international strait for navigational purposes, through which ships can pass without interference by the coastal state (Canada).67 The Northwest Passage that crosses over North America would cut shipping routes between ports in Asia and U.S. east coast by nearly 5,000 miles.68 Since the U.S. lacks standing under the treaty, it is arguing from a position of weakness with respect to the Northwest Passage and threat to Freedom of Navigation.
United States accession to UNCLOS is critical to ensure sovereignty in the Arctic. UNCLOS provides specific guidance for dealing with maritime borders disputes and the outer continental shelf claims through an international tribunal and arbitration.221 Currently as a non-signatory to UNCLOS, the U.S. is not able to avail itself of these provisions and can only engage bi-laterally as needed.
The consequences of this are becoming increasingly clear in relationships with Canada and Russia, with whom the U.S has active maritime border disputes. The U.S. is in dispute with the Russian Federation over the Bering Strait and with Canada over the waters of the Northwest Passage (NWP). The NWP crosses over North America, in an area that Canada claims are internal waters not subject to the conventions of “innocent passage” as established under customary international law and UNCLOS. On the contrary, the U.S. regards the waters of the NWP as an international strait for navigational purposes, through which ships can pass without interference by the coastal state (Canada).222 The opening of the Northwest Passage would have a global impact on marine transportation. It would cut shipping routes between ports in Asia and U.S. east coast by nearly 5,000 miles.223 Due to a lack of standing under the UCLOS treaty, the U.S. is arguing from a position of weakness with respect to the statuses of the Northwest Passage, the Northern Sea Route, and the Bering Strait and the subsequent threat to Freedom of Navigation.