Revision of U.S. is losing emerging Arctic race by not being party to UNCLOS from Thu, 02/10/2022 - 17:40
By remaining outside of UNCLOS, the U.S. is ceding its leadership role in the region in a number of ways. First, and most importantly for the U.S. strategic and economic interests, by remaining outside of the treaty the U.S. is not able to submit its claims for the extended continental shelf in the Arctic to the CLCS, preventing U.S. industries from claiming mineral rights. Secondly, existing Arctic governance regimes are based on and rely on UNCLOS and the U.S. non-party status prevents it from contributing as a full partner, weakening the overall Arctic governance regime. Finally, U.S. efforts to develop a strategy for the Arctic are constrained by the continual question of its non-party status and legitimacy as a leader.
Quicktabs: Arguments
Corollary to the non-accession to the LOS convention, the US can not access the institutions and mechanisms operating under the legal regime of the Convention. In the present scenario, therefore, the United States lacks legal basis to submit claims for enlarging its continental shelf beyond 200 NM to the CLCS Commission until it ratifies the LOS Convention. This in turn will hamper the US prospects of accessing the Arctic resources. In the meantime, however, state parties to the Convention - Canada, Denmark, Finland, Iceland, Norway, Sweden, and Russia - are all currently competing for valuable sea-bed overlapping rights in the Arctic and collecting evidences to make claim for an extended continental shelf (ECS) in the Arctic region. While the CLCS Commission may begin evaluating their respective ECS claims after receiving submissions at any time, the US continues to have its hands tied for its inability to use the CLCS procedure until it ratifies the LOS Convention. In sum, until the US becomes a party to the LOS Convention, it cannot access the CLCS Commission to gain legal rights to the Arctic seabed resources, nor can it enjoy voting privileges on the influential ISA Authority in influencing decision-making in deep-seabed mining in the ―Area‖ beyond the national jurisdiction.
Given that the United States has not ratified UNCLOS, U.S. nationals may not serve as members of the Commission on the Limits of the Continental Shelf. It is not clear whether the United States, as a non-state party, can even make a legally recognized submission to the commission to assert its claim and fully protect its proprietary rights and energy interests. In contrast, Russia, which may be entitled to almost half of the Artic region’s area and coastline, has already made its submission for vastly extending its continental margin, including a claim to the Lomonosov Ridge, an undersea feature spanning the Arctic from Russia to Canada. Russia and Canada are the two countries with which the United States has potentially overlapping extended continental shelf claims.
This maritime boundary dispute is no small matter. The U.S. Geological Survey estimates that the Arctic holds 22 percent of the world’s undiscovered oil and gas, amounting to more than 412 billion barrels of oil equivalent. Legal certainty in maritime delimitation is critically important for Arctic states and their respective energy companies. On June 8, 2012, Rex Tillerson, as chairman and CEO of ExxonMobil, wrote to the Senate Foreign Relations Committee to vociferously urge U.S. accession to UNCLOS:
“Perhaps the best example of the need for certainty in an area with great unexplored potential involves the Arctic Ocean…Several countries, including the United States, are provided with a claim to extended exploitation rights under the application of UNCLOS in the Arctic. The legal basis of claims is an important element to the stability of property rights.”
In the absence of treaty ratification, Tillerson noted that the United States suffers from the dual disadvantage of having both a cloud over the international status of U.S. claims and a weakened ability to challenge other states’ conflicting claims.
Ratification of the Convention is an urgent matter. Although a state has up to ten years after it has ratified the Convention to map and submit proposed limits of its continental shelf to the Commission on the Limits of the Continental Shelf, by that time it may be too late.196 Global climate change has caused parts of the Arctic Seacap to begin melting, making it navigable for the first time.197 While this is promising for underwater mining industries, these environmental effects have attracted a great deal of attention and the international community is cooperating to reverse them.198 Instead of engaging in fruitless political battles with its strategic adversaries, the United States should move quickly to ratify the Convention and focus its energy on extracting the resources beneath the Arctic as quickly as possible.199 Ratification “would allow full implementation of the rights afforded by the convention, [allowing member nations] to protect coastal and ocean resources.”200
In terms of capabilities, the US is like most Arctic neighbours in not being adequately equipped to optimally operate year-round in an arctic maritime environment. After the events of September 11, 2001 funding for polar research was dramatically cut, and the US was left with only three Arctic-capable icebreakers.61 The disparity between the growing importance of the Arctic and the lack of capability to adequately patrol it has been recognised by the US government.62 The issue evidently has not reached a point yet where significant resources will be diverted to the Arctic at the expense of other priorities. Thus like most Arctic states at the moment, with the possible exception of Russia and to a lesser degree Canada, the US chooses to substitute rhetoric over substance.
From a security perspective, this may in fact be viewed in a positive light. While the US and other Arctic states recognise that access to the region may dramatically increase in coming years, the current reality is that Arctic sea ice will dramatically limit marine traffic and resource exploitation for the immediate future. The longer the sea ice serves as a deterrent for any possible ‘scramble for the Arctic’, the more time is available for stakeholders to use dialogue to diffuse stress points and find compromise positions on contentious issues such as boundary disputes. One such area of friction that the US could eliminate is its non-ratification of UNCLOS. Ratifying the Convention would send a signal to all Arctic and maritime stakeholders that the US is not simply a hegemonic state that abides by only its own rules, but a member of the global community that values and upholds international law.
Another strategy that could boost U.S. influence in the Arctic, buffer looming conflicts, and help clarify seabed claims would be for the Senate to ratify the United Nations Convention on the Law of the Sea.
The Law of the Sea took effect in 1994 and established rules for how the oceans and ocean resources are used and shared. That includes determining how countries can claim parts of the seabed. The U.S. initially objected over a section that limited deep seabed mining, but that section was amended to alleviate some of those concerns. Presidents Bill Clinton, George W. Bush and Barack Obama all urged the Senate to ratify it, but that still has not happened.
Ratification would give the U.S. a stronger international legal position in contested waters. It also would enable the U.S. to claim more than 386,000 square miles – an area twice the size of California – of Arctic seabed along its extended continental shelf and fend off any other country’s overlapping claims to that area.
Without ratification, the U.S. will be forced to rely on customary international law to pursue any maritime claims, which weakens its international legal position in contested waters, including the Arctic and the South China Sea.
The urgency for the United States joining the convention is twofold. First, by not being a state party to the convention, the United States is unable to nominate or elect the expert commissioners who carry out the work of the CLCS. That reduces the ability of the United States to contribute to the work of the commission and ensure that the convention is applied fairly and objectively. Moreover, when Russia submitted what many considered an overly expansive claim in the Arctic Ocean in 2001, the U.S. ambassador to the UN, John Negroponte, could only file a demarche listing U.S. objections. By not acceding the convention, the United States has no standing before the commission in what will be the largest adjudication of state jurisdiction in world history. Remaining a nonparty also prevents the United States from making its own submission to the commission. The State Department is currently overseeing an effort to collect evidence for an eventual American claim to the extended continental shelf, but the United States cannot formally submit this package for review by the CLCS until it formally joins the convention. By not joining, the United States is actually giving up sovereign rights—missing an opportunity for international recognition for a massive expansion of U.S. resources jurisdiction over as much as one million square kilometers of ocean, an area half the size of the Louisiana Purchase. Remaining outside the convention prevents the United States from participating in the process of overseeing the claims of other countries to the extended continental shelf and from formally making its own.
Unfortunately, as UNCLOS nears its 40th anniversary, the United States has yet to ratify the treaty despite strong urging from the U.S. Defense and State Departments, as well as from the Joint Chiefs of Staff. In its “Arctic Roadmap,” the U.S. Navy actively supports accession to UNCLOS because it provides “effective governance: freedom of navigation, treaty vs. customary law, environmental laws, and extended continental shelf claims.”33 Joining UNCLOS would give the U.S. government a clear framework in which it could more effectively confront growing difficulties pertaining to freedom of navigation in the Arctic region. By not ratifying the U.N. Convention on the Law of the Sea, the United States is at a considerable economic disadvantage as the other Arctic coastal states submit their claims. The United States maintains the world’s largest EEZ and has 360 major commercial ports. With potential claims of up to 600 miles of possible resource-rich continental shelf territory in the Arctic, remaining outside the UNCLOS only erodes the position of the United States in the region.
These difficulties have been made explicitly clear in recent reports from the Department of Defense and the U.S. Navy. The Department of Defense has noted that its “lack of surface capabilities able to operate in the marginal ice zone and pack ice will increasingly affect accomplishment of this mission area [sea control] over the mid- to far-term.”34 Moreover, the U.S. Navy “acknowledges that while the Arctic is not unfamiliar for the Navy, expanded capabilities and capacity may be required for the Navy to increase its engagement in this region.”35 These challenges are likely to increase moving forward unless further action is taken. As discussed below in further detail, the fact that the United States has yet to ratify UNCLOS compounds these issues.
Though the United States lacks the ability to submit claims to enlarge its coastal territory until it ratifies UNCLOS, some commentators stress that because of the length of the ISA and CLCS review process, the United States might not be out of the running for these Arctic treasures quite yet.120 In the meantime, however, the UNCLOS member nations of Canada, Denmark, Finland, Iceland, Norway, Sweden, and Russia are all currently competing for these valuable overlapping rights.121 While these countries may begin evaluation by the ISA of their claims at any time, the United States continues to have its hands tied—unable to use the ISA procedure (the only treaty-sanctioned procedure) until it ratifies UNCLOS.
UNCLOS holds specific value for the Arctic security environment as it lays out a set of rules on how to divide disputed territory and resolve possible tensions. It also represents the only path for Arctic coastal states to submit scientific claims to extend their outer continental shelf, which provides important clarity for future economic development. While the five Arctic coastal states are limited by their exclusive economic zone of 200 nautical miles from their coasts, the convention allows them to extend their economic zone if they can prove that the Arctic seafloor’s underwater ridges are a geological extension of the country’s own continental shelf. Within 10 years of ratifying the UNCLOS, countries must submit evidence to the UN Commission on the Limits of the Continental Shelf, the governing body created to deliberate on these submissions, to make their case for an extended continental shelf.
In light of a global climate crisis and the escalating battle over the valuable resources below the North Pole, Congress should make ratification of UNCLOS one of its top priorities. Until the United States is a treaty member, it cannot enjoy voting privileges on the influential ISA (on which it would be granted a permanent seat) nor submit claims to the CLCS to gain legal rights to the resources in the North Pole‘s seabed. The concerns that influenced President Reagan not to sign the treaty in 1982 have largely disappeared, and the remaining concerns are easily refuted. U.S. ratification of UNCLOS makes sense not just for economic, national security, and environmental reasons, but also to enhance the diplomatic standing of the United States. Accession to UNCLOS now would be a powerful and meaningful gesture on behalf of the United States, symbolizing a recommitment to global cooperation.