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
The United States has basic and enduring national interests in the oceans. These diverse interests—security, economic, scientific, dispute settlement, environmental, and leadership—are best protected through a comprehensive, widely accepted international agreement that governs the varying (and sometimes competing) uses of the sea. Although the United States has lived outside the Convention for 30 years, climate change in the Arctic provides the current Administration with a new and urgent incentive to re-engage the Senate and urge that body to provide its advice and consent to U.S. accession to the treaty at the earliest opportunity. As a nation with both coastal and maritime interests, the United States would benefit immensely from becoming a party to UNCLOS—accession will restore U.S. oceans leadership, protect U.S. ocean interests and enhance U.S. foreign policy objectives, not only in the Arctic, but globally.
As the global climate is warming up rapidly, leading to ice-free summers in the Arctic Ocean, Arctic nations are confronting the prospect of new rights over the Arctic’s vast natural resources. All Arctic nations— Canada, Denmark, Norway, Russia—except for the United States, ratified the Convention and have already submitted, or are preparing to submit, proposed limits for their extended continental shelves to the Commission. The submissions will enable these countries to obtain international recognition over their extended continental shelves in the Arctic, including exclusive rights over oil and gas reserves.
As a nation with an extensive coastline and a continental shelf with enormous oil and gas reserves, the United States has much more to gain than lose from joining the Convention. Furthermore, the uncertainties stemming from the customary law make it a less effective measure to protect American interests. Only a universal regime such as the Convention can adequately safeguard the United States’ interest in the Arctic Ocean. The best way to guarantee access to the Arctic’s resources is for the United States to become a party to the Convention.
In May 2013, five Asian nations—including China—were granted ob- server status in the Arctic Council, and China has stated it does not intend to be a “wallflower” in the forum.33 Beijing has expressed an interest in developing new shipping routes through the Arctic that will connect China with its largest export market—the European Union. To that end, in August 2013, a Chinese merchant vessel loaded with heavy equipment and steel set sail from Dalian en route to Rotterdam via the Arctic’s Northern Sea Route (NSR).34 China has also expressed an interest in developing Arc- tic resources. In March 2010, Rear Admiral Yin Zhou of the People’s Liberation Army Navy stated at the Eleventh Chinese People’s Political Consultative Conference that “under . . . UNCLOS, the Arctic does not belong to any particular nation and is rather the property of all the world’s people” and that “China must play an indispensable role in Arctic exploration as it has one-fifth of the world’s population.”35 Officials from the State Oceanic Administration have similarly indicated that China is a “near Arctic state” and that the Arctic is an “inherited wealth for all humankind.”36 As a party to UNCLOS, the United States could claim an ECS in the Arctic and forestall any encroachment of U.S. ocean resources by China or any other nation.
In the case of the Arctic Ocean, the five Arctic coastal states are Canada, Denmark, Norway, Russia, and the United States. Russia ratified UNCLOS in 1997. In December 2001, Russian officials submitted a claim that 120 million hectares of underwater terrain between the Lomonosov and Mendeleev ridges be confirmed as a continuation of the Siberian shelf. Norway ratified UNCLOS in 1996 and submitted its claim in November 2006. Canada and Norway ratified UNCLOS in 2003 and 2004, respectively, and are in the process of preparing claims for submission. The United States has not ratified UNCLOS. However, the United States is working closely with Canada to gather and analyze data through the Extended Continental Shelf Project for the submission of Canada’s claim. This effort is led by the U.S. Continental Shelf Task Force, an interagency body, chaired by the Department of State with co-vice chairs from NOAA and the Department of the Interior. Both U.S. Navy and U.S. Coast Guard representatives participate on the Task Force. According to the U.S. Arctic Research Commission, the United States could lay claim to an area in the Arctic of about 450,000 square kilometers and the seabed resources therein. However, as a non-party to UNCLOS, the United States cannot participate as a member of the Commission on the Limits of the Continental Shelf; neither can the United States submit a claim under Article 76.
The Arctic nations are preparing submissions for the extended shelves; Russia’s is currently under review. Under the terms of the convention, the American zone would be the largest in the world— more than 3.3 million square miles, an area greater than the lower 48 states combined.74 In addition to protection of shelf claims, the convention is good for the United States because it sets pollution standards and requires signatories to protect the marine environment. The United States has not submitted a claim because it has not ratified the Convention.75
Ratification is also important for U.S. long-term presence in the region. In the absence of shared law, countries often make unreasonable and irres- ponsible claims in the maritime environment—the Arctic will be no different.76 Without binding law, the United States gambles on long-term credibility to enforce international law, freely navigate the oceans, and protect the business ventures that rely on uniform laws.
Because of the accelerated Polar Ice Cap melting, Arctic nations now have unprecedented access to vast wealth through their extended territorial claims. As explained by Senator Richard Lugar, an UNCLOS supporter, "the CLCS '[w]ill soon begin making decisions on claims to continental shelf areas,"' and if the United States does not ratify the Convention, the United States 'will not be able to protect our national interest."'262 Critics of UNCLOS assert the Convention would permit other nations to intrude on the United States' sovereignty, thereby undermining its national security interests.263 Those arguing for UNCLOS' ratification, however, postulate that ratification would strengthen U.S. sovereignty and security.264 In fact, unless the United States ratifies UNCLOS, the United States will be less able to promote and protect its self-interest as it will be "left without a voice when the Arctic region is being divided amongst other nations."265 Specifically, the United States will not be able to participate in the extended continental shelf process pursuant to Article 76 when Russia and other Arctic nations submit their extended territorial claims to the CLCS.266 This will not only put the United States at a significant disadvantage in the Arctic region, but will also undermine the current balance of socioeconomic power among the Arctic nations. For example, without UNCLOS ratification by the United States, Russia will be able "to pursue its [Arctic] claims without opposition from America" via UNCLOS.
The United States stands atop a precipice, faced with a momentous opportunity to take advantage of trillions of dollars in natural resources, while sim- ultaneously restoring the nation’s economic security through governance and job creation. Governance is the first step. Ratifying the Law of the Sea Conven- tion must be a priority for the administration or the United States will lose economically and could be challenged as the global maritime leader. The Inter- national Maritime Organization will remain the key vehicle for governance mechanisms. AIS expansion, as well as mandated Arctic shipping guidelines and establishing traffic patterns should be top priorities for the United States. Governance needs to be accompanied by a significant acquisition program to keep pace with the other Arctic nations. Ice- breakers, additional aircraft, and infrastructure can no longer be shoehorned into a Coast Guard budget, which has inadequate funding even for recapitaliza- tion of its Vietnam-era fleet.
The United States needs an Arctic economic development strategy that incorporates the departments of Defense, Homeland Security, Commerce, and Energy. Such strategy should include plans for shore-based infrastructure, communications, and surveillance technology, icebreakers, and response aircraft for the region. In an era of declining budgets, the simplest course of action would be to ignore the tremendous potential of investment in the Arctic. However, such willful turning away reduces our ability to reap tremendous economic benefits and could harm U.S. national security interests.