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
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.