U.S. can make claim to Arctic resources without being party to UNCLOS
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
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.
Those in favor of UNCLOS ratification have asserted that, unless the United States becomes a party to the treaty, it will not be able to adequately protect its interests. Proponents argue that the United States will be left without a voice when the Arctic region is being divided amongst other nations. They suggest that unless the United States is able to participate in the formal processes codified in UNCLOS, Russia and the other relevant nations who may go before the CLCS will have a substantial advantage in claiming Arctic territory. But, as discussed above, the CLCS is a semi-secretive process where a nation, whether it is a party to UNCLOS or not, will not be able to contest another nation's scientific findings to the Commission." Moreover, if the matter is indeed settled through multiparty negotiations, the status of UNCLOS in the United States will likely be irrelevant because the matter will be settled outside of the treaty.
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.
The Rights to the Arctic Likely Will Be Decided through Multi-party Negotiations Outside the Scope of UNCLOS. UNCLOS does not create a dispute resolution process through the CLCS, and there is an inherent difficulty ofproving beyond refute that the area at issue is the extension of only one nation's continental shelf. Thus, the most probable result is that the nations with competing claims will negotiate amongst themselves to reach a settlement. This makes it imperative that the United States refrain from any action that may weaken its bargaining position. By ratifying UNCLOS the United States could substantially erode its bargaining power. By becoming a party to the treaty and thus subject to the adjacent-or-opposite limitation, the United States would weaken its negotiating position if the U.S. continental shelf is not physically connected to the Arctic seabed. If the United States is a party to UNCLOS, then other nations may argue that the United States' only option is to submit a claim to the CLCS as provided in the treaty. If, however, the United States is not a party to UNCLOS, then there would be less pressure from other nations for it to proceed under UNCLOS provisions to ultimately determine the validity of any U.S. claim. Also, as a party to the treaty, the United States would lose credibility in any external settlement negotiations since it would only be subscribing to some of UNCLOS's mandates.
If UNCLOS has not become customary international law and thus does not bind the United States with respect to the Arctic area, then the United States is free to argue that the Convention on the High Seas allows it and other nations to freely mine the seabed and navigate the waters of the Arctic. The freedom to navigate the high seas is explicitly guaranteed by the Convention. The United States must argue that the Convention governs the dispute and provides all nations the ability to navigate the Northwest Passage free from interference from Canada or any other nation claiming to own the area. As a result, the United States would be claiming that the Northwest Passage is part of the "common heritage" and that any nation could navigate through it.
The most significant benefit to the United States' argument that the doctrine of the high seas still governs the Arctic Ocean and its seabed is that the United States would be able to exploit the vast natural resources through deep sea mining activities. Unlike the freedom to navigate the high seas, the freedom to mine that area is not explicitly guaranteed, although it is clearly protected. By securing the right to mine and exploit the resources beneath the Arctic Ocean, the United States would be taking a step to guarantee its energy independence and encouraging U.S. businesses to invest in deep sea mining. These two things will, of course, be critical to the U.S. economy in the foreseeable future.
By relying on the Convention and the doctrine of the high seas, the United States may bypass the UNCLOS regime altogether and begin exploration and exploitation of the Arctic area immediately. As a further benefit, the United States will not have to ratify UNCLOS in order to secure these rights. In fact, if the United States does ratify UNCLOS as many have called for, it may be relinquishing these rights completely if no valuable territory is an extension of its continental shelf. Thus, it is clearly in the United States' interest not to ratify UNCLOS and to contest the Russian land claim outside that regime's jurisdiction.
While I agree completely with Cartner and Gold "Commentary in Reply to “Is it Time for the United States to Join the Law of the Sea Convention”." Journal of Maritime Law & Commerce. Vol. 42, No. 1 (January 2011): 49-70. [ More (6 quotes) ] that UNCLOS “reduces uncertainty and confusion for all states parties” claiming an extended continental shelf, the United States must be prepared to act unilaterally if the Senate does not give advice and consent in the near future. Clearly, as indicated in the NWC Global Shipping Game report, accession to UNCLOS would provide greater certainty and predictability “of the future security and political environment that industry desires in order to invest in economic development of the Arctic region.” However, even without U.S. accession, if there is money to be made, U.S. industry will invest in the region if the U.S. Navy is there to guarantee and protect access. Therefore, while unilateral action may not be the “best” option, it remains a viable (and perhaps the only) option and we should not undercut our ability to claim an extended continental shelf based on the 1958 Continental Shelf Convention by allowing Administration officials to incorrectly state that the United States can only claim an extended continental shelf if we join UNCLOS. Fortunately, not all Administration officials are misinformed on the law. While recognizing the importance of UNCLOS, Margaret Hayes, the chair of the Department of State Extended Continental Shelf Interagency Task Force, acknowledged that “the existence of an extended continental shelf does not depend on a coastal nation having joined the convention” and “that there are other ways to establish what the outer limits might be (emphasis added).”
The United States was able to play a role in the Commission’s non- acceptance of Russia’s first claim to the Arctic seabed back in 2001, even though it was not a party to LOST – and, therefore, not at risk of being bound by adverse Commission decisions. This episode demonstrates that, by remaining outside of the Treaty, America can retain its freedom of action (including the use of bilateral diplomacy and more constructive multilateral mechanisms, such as the Arctic Council) and still challenge such over-reaching Russian claims and win.
What of the Arctic? A 2011 Bloomberg BusinessWeek editorial argued:
“The U.S. continental shelf off Alaska extends more than 600 miles into the Arctic Ocean. American companies have been reluctant to invest in exploiting this underwater terrain, which contains vast untapped reserves of oil and natural gas. That’s because the U.S., as a nonparticipant in the sea convention, has no standing to defend its ownership of any treasures that are found there.”32
Yet this is exactly the same case as in the Gulf of Mexico. Only three nations contest the ownership of resources in the extended North American continental shelf in the Arctic: the United States, Canada and Russia. American relations with Canada are friendly; therefore, a United States-Mexico-style treaty with Canada demarcating appropriate lines north of Alaska should be relatively easy to achieve. Russia might be perceived as a more intractable problem; but a 1990 treaty between the United States and the Soviet Union defines the maritime boundary between the two powers.33
Under the Treaty, Russia has claimed vast areas beneath the Arctic Ocean, but these claims in no way infringe upon the 1990 Treaty. Actually, they are a challenge to Canada rather than the United States. South of the Arctic Ocean, the treaty line protects U.S. claims to large areas of extended continental shelf in the Bering Sea and in the Pacific Ocean southwest of the Alaskan Aleutian Islands. Accordingly, there is no barrier (barring the low one of a necessity to negotiate a treaty with Canada) to the United States developing the extended continental shelf in the Arctic and its environs in the same way it has in the Western Gap.
LOST in the Arctic. The U.S. Arctic Region Pol- icy urges the Senate to approve U.S. accession to LOST. However, the U.S. can execute its Arctic policy without ratifying LOST.
At present, America is not bound by the treaty’s procedures and strictures, but the U.S. is pursuing its claims under international law as an indepen- dent, sovereign nation, relying on President Harry S. Truman’s Presidential Proclamation No. 2667, which declares that any hydrocarbon or other resources discovered beneath the U.S. continental shelf are the property of the United States.4 The U.S. has shown that it can successfully defend its rights and claims through bilateral negotiations and in multi- lateral venues, such as through the Arctic Ocean Conference, which met in Greenland in May 2008.