Revision of U.S. is losing emerging Arctic race by not being party to UNCLOS from Sat, 07/20/2013 - 23:34
Quicktabs: Arguments
While the other Arctic powers are racing to carve up the region, the United States has remained largely on the sidelines. The U.S. Senate has not ratified the UN Convention on the Law of the Sea (UNCLOS), the leading international treaty on maritime rights, even though President George W. Bush, environmental nongovernmental organizations, the U.S. Navy and U.S. Coast Guard service chiefs, and leading voices in the private sector support the convention. As a result, the United States cannot formally assert any rights to the untold resources off Alaska's northern coast beyond its exclusive economic zone -- such zones extend for only 200 nautical miles from each Arctic state's shore -- nor can it join the UN commission that adjudicates such claims. Worse, Washington has forfeited its ability to assert sovereignty in the Arctic by allowing its icebreaker fleet to atrophy. The United States today funds a navy as large as the next 17 in the world combined, yet it has just one seaworthy oceangoing icebreaker -- a vessel that was built more than a decade ago and that is not optimally configured for Arctic missions. Russia, by comparison, has a fleet of 18 icebreakers. And even China operates one icebreaker, despite its lack of Arctic waters. Through its own neglect, the world's sole superpower -- a country that borders the Bering Strait and possesses over 1,000 miles of Arctic coastline -- has been left out in the cold.
The United States has also taken steps to tie its continental shelf to the Arctic Seacap in an effort to claim some of the re- sources beneath it.192 The most recent U.S. expedition may have found evidence to extend the continental shelf north of Alaska 100 miles from where it was originally thought to be.193 This could provide a challenge to Russia, Denmark and even Canada’s claims to the territory in the Arctic Seacap. However, as a non-party to the Convention, the United States has limited recourse for its claim.194 As a party, the United States may (and likely would) submit evidence of its expansive continental shelf to the Commission on the Limits of the Continental Shelf and conclusively establish the outer limits of its territorial sea in the Arctic.195 Should another state try to infringe upon these limits, the United States would have evidence supported by international law to protect itself. The states most likely to pose a threat to the United States in the Arctic—Denmark, Canada and Russia—are all parties to the Convention and therefore must adhere to the findings of the Commission on the Limits of the Continental Shelf. Absent ratification of the Convention, the United States could have taken Russia’s approach. In the unlikely event that terra nullius is found to be an acceptable method for claiming territory on the seas, this action, nevertheless, would have been futile since Russia was the first to assert a claim over the Arctic.
Imperative impetus for this change in the US ocean policy comes from the ongoing climate change in the Arctic region and its potential implications for the US. Indeed, receding ice in the Arctic provides new opportunities to the US to secure its energy security and to gain economically by extracting hitherto inaccessible offshore Arctic resources and utilizing navigable Northwest Arctic Passage for commercial shipping. However, its legal status as a non-Party to the LOS Convention has kept the US ―hobbled on the Arctic‘s geopolitical sidelines‖ and acts as a stumbling block in its active participation in important international policymaking bodies- CLCS and ISBA. The US has no say in the CLCS commission with the authority to validate its national claims for extended continental shelf, which may adverserly affect the US Arctic interests. Further, non-participation in the ISBA authority may also marginalise the US interests in the deep seabed mining in the Area, beyond national jurisdiction. All these factors have point out the need for a change in the US ocean policy in recent time. These imperatives emphasize on the need to accede to the LOS Convention to advance US economic and strategic interests in the contemporary world.
UNCLOS must be the legal bedrock of U.S. Arctic policy. UNCLOS is the framework of cooperation within the region. Other nations have rejected the push for an Arctic treaty, like the Antarctic Treaty, favoring instead the UNCLOS structure.245 By ratifying UNCLOS, the U.S. will advance a “remarkable treaty that expands U.S. sovereign rights, powerfully serves U.S. needs for the Navy and the Coast Guard, and provides American industry with the security necessary to generate jobs and growth.”246 By joining the UNCLOS alliance, the U.S. will be better able to settle maritime claims and disputes between other Arctic nations on issues such as outer continental shelf and maritime boundary line issues. The U.S. will also be in a better position to challenge the jurisdictional claims of both Russia (Northern Sea Route) and Canada (Northwest Passage). Only through UNCLOS can the U.S. make rightful claim to the Extended Continental Shelf and the natural resources within it. Implementation requires Congressional action and pressure by the Administration to get UNCLOS to a vote in the Senate.
Other Benefits. We should also join the Convention now to steer its implementation. The Convention’s institutions are up and running, and we – the country with the most to gain or lose on law of the sea issues – are sitting on the sidelines. As I mentioned, the Commission on the Limits of the Continental Shelf has received submissions from over 40 countries without the participation of a U.S. commissioner. Recommendations made in that body could create precedents, positive and negative, on the future outer limit of the U.S. shelf. We need to be on the inside to protect and advance our interests. Moreover, in fora outside the Convention, the provisions of the Convention are also being actively applied. Only as a party can we exert the level of influence that reflects our status as the world’s foremost maritime power.
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.