Revision of U.S. can make claim to Arctic resources without being party to UNCLOS from Tue, 02/08/2022 - 16:16
The U.S. can exercise its rights under the 1958 Convention on the High Seas to assert that it is permitted to mine and navigate in its Extended Continental Shelf. Ratifying UNCLOS would constrict the ability of the U.S. to respond to challenges to these rights by forcing all further negotiation to occur through the CLCS.
Quicktabs: Arguments
Indeed, after Russia made its 2001 claim, five nations (Canada, Denmark, Japan, Norway, and the United States) submitted objections to the CLCS. The U.S. objection identified “major flaws” in the Russian claim, including an objection concerning whether the Alpha-Mendeleev and Lomonosov mid-ocean ridges in the central Arctic are a natural component of Russia’s continental shelf. However, the U.S. comments also noted that “the Russian submission utilizes the boundary embodied” in the 1990 U.S.–USSR treaty and that the “use of that boundary is consistent with the mutual interests of Russia and the United States in stability of expectations.”36
The CLCS agreed with the U.S. comments, stating that the U.S.– USSR boundary demarcated in 1990 reflects the boundary of the U.S.–Russia continental shelf in the Bering Sea. The CLCS recom- mended that Russia “transmit to the Commission the charts and coordinates of the delimitation lines as they would represent the outer limits of the continental shelf of the Russian Federation extended beyond 200 nautical miles in ... the Bering Sea.”37
In June 2002, in light of the objections to Russia’s ECS claim, the CLCS recommended to the Russians that they provide a “revised submission” on Russia’s claims in the central Arctic.38 Russia reportedly will make an amended submission to the CLCS at some point in the future. In addition, Canada and Russia recently signaled that they will cooperate with each other to demarcate their respective ECS boundaries in the Arctic.39
The U.S. objections to the Russian ECS submission and the CLCS’s subsequent rejection of the Russian claim call into question the repeated assertions by UNCLOS proponents that, absent U.S. accession to the convention, the United States is a helpless bystander in demarcation of Arctic ECS boundaries.40 In fact, the United States has raised objections to the CLCS on other ECS submissions, such as those made by Australia and Brazil.41
Much of the supposed distress voiced by UNCLOS proponents stems from Russia’s 2001 submission to the CLCS, in which Russia laid claim to a vast area of Arctic ECS. The proponents incorrectly imply that Russia’s claim will result in the loss of Arctic resources that rightfully belong to the United States. According to Senator Lisa Murkowski (R–AK), for example:
[I]f we do not become a party to the treaty, our opportunity to make [a claim to the CLCS] and have the international community respect it diminishes considerably, as does our ability to prevent claims like Russia’s from coming into fruition. Not only is this a negligent forfeiture of valuable oil, gas and mineral deposits, but also the ability to perform critical scientific research.30
However, Russia’s 2001 submission to the CLCS in no way overlaps or infringes on potential areas of U.S. ECS in the Arctic. To the contrary, Russia’s claim adheres to a boundary line that the United States and the USSR agreed upon in a 1990 treaty.31 Specifically, Russia’s submission to the CLCS divides its claimed conti- nental shelf and ECS from the U.S. shelf along an agreed boundary line that extends from the Bering Strait northward into the Arctic Ocean.
The United States must stand up, take notice, and resist any effort to grant Russia or any other nation exclusive control over the Arctic's resources. Because the United States is not a party to UNCLOS, it must argue for a solution outside the treaty. This dispute is likely to take place in multi-party negotiations, and it is imperative that the United States shore up its legal positions now.
As it has done for quite a long time, the United States may rely on the doctrine of the freedom of the high seas codified in the Convention on the High Seas to assert that it is permitted to mine and navigate the area that Russia is attempting to claim. In addition to allowing free navigation of the high seas, that doctrine, now a part of international custom, allows any nation to participate in exploitation of the resources of a vast majority of the oceans. By arguing that UNCLOS does not apply to non-parties, the United States will be able to rely on this widely-supported doctrine while extracting oil, natural gas, and minerals from the seabed. An application of this doctrine will provide the United States with the best opportunity to serve its own interests without sacrificing its sovereignty to an international tribunal.