Revision of U.S. ratification of UNCLOS will not help resolve Arctic disputes with Russia from Tue, 10/17/2017 - 16:10
Other Nations' Claims to the Arctic Seabed. If the Senate ratified UNCLOS, thereby making the United States a party to the treaty, the United States would have no additional grounds on which to contest Russia's CLCS claim, because the CLCS does not settle disputes among nations with competing claims. Thus, U.S. participation in the UNCLOS regime would add nothing to its legal argument that it is permitted to mine the seabed and navigate the waters that Russia is attempting to claim. UNCLOS does not provide a compulsory dispute resolution technique, and because a dispute among nations is likely to arise, it is probable that the rights to the resources of the Arctic will be decided outside of its framework.
From Russia’s security strategy,40 and evidence of Russia’s pragmatism in its approach to the Arctic, it is possible to draw two broad security conclusions: First, Russia is unlikely to engage in any military confrontation that could potentially damage its economic security. This is consistent with Russia’s broadly conciliatory approach to the Arctic, despite its often-inflammatory rhetoric, and symbolic actions such as placing a Russian flag on the seabed beneath the North Pole. Russia’s approach is underpinned by a belief that it has both the law, and scientific evidence in its favour, and that it therefore has a legal right to a significant unclaimed portion of Arctic seabed, particularly along the Lomonosov Ridge. If Russia’s claim to the CLCS is eventually successful, it stands to gain approximately 460,000 square miles, or half of the Arctic’s seabed and the rich resources contained therein.41 The second conclusion this author can draw is that should Russia fail to gain the Arctic resources it expects through legal and procedural means, there is so much at stake in terms of Russia’s economic security, that other Arctic actors need to plan for the contingency that Russia might attempt to assert its control over Arctic resources and territory through alternate means.42
If the U.S. Senate ratifies the Convention on the Law of the Sea of 1982, Russia will not witness any significant changes in bilateral relations in the Arctic. It is obvious that the U.S. intends to apply the Convention only when it coincides with its national interests. Potential conflicts will be resolved through bilateral negotiations rather than UNCLOS provisions directly.
Since the Convention does not oblige all contentious issues to be decided within its rules and institutions, the United States can either appeal to precedent or refuse to discuss an inconvenient problem in terms of the Convention. Apparently, some Russian experts underestimate the fact that under international law, common law prevails over codified law. This allows the U.S. to bypass the Convention and is all the more reason to not consider it a universal source of law on Arctic issues.
In line with this logic, experts from the Ministry of Defense and the Department of State submitted their official conclusions to the U.S. Senate in which they found that ratification would not impose any restrictions on the military.
Moreover if the Convention was ratified, the U.S. could appeal to the right of transit in territorial waters enshrined in the Convention as grounds for legal military presence not only in the Barents Sea, but also anywhere in the world. In case of complaints about the inadmissibility of covert presence or military activities in territorial waters, the United States could exercise the right of self-interpretation, challenging what is meant by military activities in the particular case (Article 298-1 of the Convention).
U.S. military activities cannot be a matter of contention within the framework of the Convention. Similarly, Russia will not receive any positive changes to the delimitation of the Bering Sea or defining the boundary line in the Chukchi Sea and beyond the exclusive economic zone towards the pole.
Thus, strategic environment and level of cooperation between Russia and the United States in the Arctic will be based on the state of their bilateral relations in general, and not on the U.S. decision of whether or not to ratify the UN Law of the Sea.
While it is undeniable that the Arctic states are using international institutions focused on Arctic issues, they appear to do so out of political convenience—not out of a commitment to peaceful cooperation. The participating nations all actively pursue a combined environmental and safety agenda with their partners through the Arctic Council. Its charter, however, explicitly bans the organization from discussing issues related to military security, a point reinforced by the Ilulissat Declaration of the five Arctic states: that is, no legal enforcement regime other than the UNCLOS is needed in the region.216
To that end, the UNCLOS does indeed provide conflict resolution mechanisms for territorial disputes and continental shelf claims, but Russia exempted itself from discussing such matters in UNCLOS fora when it acceded to the Convention. Moreover, while the United States continues to observe the UNCLOS as customary international law, it remains outside the Convention and is unable and unwilling to use its dispute resolution mechanisms.
Secondly, as mentioned previously, Article 4 of the Convention asserts a ten-year limit for Parties to submit “excessive” continental shelf claims to the CLCS for adjudication. Adjudication, however, only provides an internationally recognized delineation of the claim and not a final delimitation where such a claim may be disputed by a state with an opposite or adjacent coast. Such disputes must be settled by mutual agreement of the contesting parties, or submitted to one of the aforementioned bodies for a binding resolution.
In the case of Russia in particular, upon acceding to the UNCLOS in 1997 and in accordance with Article 298 therein, it declared that it
"does not accept the procedures, provided for in Section 2 of Part XV of the Convention, entailing binding decisions with respect to disputes concerning the interpretation or application of articles 15, 74 and 83 of the Convention, relating to sea boundary delimitations, or those involving historic bays or titles; disputes concerning military activities, including military activities by government vessels and aircraft, and disputes concerning law-enforcement activities in regard to the exercise of sovereign rights or jurisdiction; and disputes in respect of which the Security Council of the United Nations is exercising the functions assigned to it by the Charter of the United Nations.151
In effect, Moscow declared that it would accept delimitation of disputed boundaries only on a bilateral basis, negotiated outside the UNCLOS regime. Russia’s pending resubmission152 to the CLCS of its excessive continental shelf claims has been interpreted as merely a diplomatic maneuver of convenience to gain recognition for its claims and not an earnest effort to use the UNCLOS as a peaceful dispute resolution mechanism.
In the Arctic, much of the supposed distress voiced by UNCLOS proponents stems from Russia’s vast claim of Arctic ECS that it submitted to the CLCS in 2001. The proponents incorrectly imply that Russia’s claim will result in the loss of Arctic resources that belong to the United States. According to Senator Lisa Murkowski (R–AK), for example, the U.S. failure to accede to UNCLOS would cause “a negligent forfeiture of valuable oil, gas and mineral deposits.”35
But the United States has not and will not “forfeit” a drop of Arctic oil to Russia or any other nation. For one thing, Russia’s claimed ECS area does not overlap any part of the U.S. Arctic ECS. To the contrary, Russia’s claim respects a boundary that the United States and the uSSR negotiated in 1990—the “Baker– Shevardnadze line.”36
The Russian claim extends the Baker–Shevardnadze line from the Bering Strait all the way to the North Pole, likely resulting in an excessive ECS claim in the central Arctic. However, Russia’s potentially excessive claim is located to the north of the limits of the U.S. ECS area. While the Russian claim may overlap with Canada’s ECS claim, it does not overlap any U.S. ECS area.37
In short, there is no conflict between the United States and Russia regarding the division of Arctic resources, including hydrocarbons. even if there were a conflict, Russia’s claim cannot be approved by the CLCS and would not be recognized by the United States (or Canada). Both UNCLOS and the CLCS’s procedural rules prevent the commission from considering any ECS area where there are overlapping claims: “In cases where a land or maritime dispute exists, the Commission shall not consider and qualify a submission made by any of the States concerned in the dispute.”38
The United States may object to excessive ECS claims made by any member of UNCLOS even though the U.S. is not a party to the convention. Indeed, after Russia made its 2001 claim, the United States, Canada, Denmark, Japan, and Norway each filed objections with the CLCS. In June 2002, as a result of the objections, the CLCS recommended to Russia that it provide a “revised submission” on its Arctic ECS claim.39 Russia reportedly will make an amended submission to the CLCS at some point in the future.
The author challenges the argument that U.S. ratification of UNCLOS would help improve relations or resolve disputes between U.S. and Russia in the Arctic.