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
Is having a seat on the46 "U.S. Ratification of the U.N. Convention on the Law of the Sea: Passive Acceptance Is Not Enough to Protect U.S. Property Interests ." North Carolina Journal of International Law and Commercial Regulation. Vol. 31, No. 3 (2005-2006): 745-792. [ More (7 quotes) ] CLCS an important enough reason to join the Convention? Would having a seat on the CLCS really put the United States Government in a position to have a say in deliberations over other nations’ extended continental shelf claims? Again, the answer to both of those questions is, “no.” The CLCS was established to help facilitate the implementation of Article 76. As a body of scientific experts, however, the CLCS does not have veto power over coastal state submissions. It may only make rec- ommendations to the coastal state on matters related to the establishment of the outer limits of its continental shelf. Coastal states may accept or reject these recommendations. Annex II (Article 8) to the Convention and CLCS Rules of Procedure (Rule 53) simply require the coastal state to make a revised or new submission in the case of disagreement with the recommen- dations of the Commission. Additionally, Annex II (Article 2) limits the membership of the CLCS to 21 experts, so there is no guarantee that a U.S. representative would be elected to the Commission even if the United States was a party to the Convention. Moreover, even if elected, the U.S. repre- sentative would serve in a personal capacity (Annex II, Article 2(1); CLCS Rules of Procedure (Rule 11)) and would be precluded from voting on any submission tendered by the United States (Annex II, Article 5; CLCS Rules of Procedure (Rule 42)). Having a seat at the table on the CLCS would not put the U.S. Government in a position to have a say in deliberations over other nations’ claims and would therefore have minimal benefit for the United States.
However, pursuant to long-standing law and policy the United States already enjoys and exercises full jurisdiction and control over its ECS. In addition to the 1945 Truman Proclamation, in which President Harry S. Truman declared that the United States “regards the natural resources of the subsoil and sea bed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control,” in 1953 Congress passed the Outer Continental Shelf Lands Act, which defined the outer continental shelf as “all submerged lands lying seaward and outside of the area of lands beneath navigable waters...and of which the subsoil and seabed appertain to the United States and are subject to its jurisdiction and control.”
After the adoption of UNCLOS in 1982, the U.S. affirmed its jurisdiction over its entire continental shelf, including the ECS. Specifically, in November 1987 a U.S. government interagency group issued a policy statement declaring its intent to delimit the U.S. ECS in conformity with Article 76 of UNCLOS (which provides a formula for measuring the extent of a coastal state’s ECS). That statement read, in pertinent part, “The United States has exercised and shall continue to exercise jurisdiction over its continental shelf in accordance with and to the full extent permitted by international law as reflected in Article 76, paragraphs (1), (2) and (3).”
Indeed, after Russia made its 2001 claim, five nations (Canada, Denmark, Japan, Norway, and the United States) submitted objections to the CLCS. The U.S. objection identified “major flaws” in the Russian claim, including an objection concerning whether the Alpha-Mendeleev and Lomonosov mid-ocean ridges in the central Arctic are a natural component of Russia’s continental shelf. However, the U.S. comments also noted that “the Russian submission utilizes the boundary embodied” in the 1990 U.S.–USSR treaty and that the “use of that boundary is consistent with the mutual interests of Russia and the United States in stability of expectations.”36
The CLCS agreed with the U.S. comments, stating that the U.S.– USSR boundary demarcated in 1990 reflects the boundary of the U.S.–Russia continental shelf in the Bering Sea. The CLCS recom- mended that Russia “transmit to the Commission the charts and coordinates of the delimitation lines as they would represent the outer limits of the continental shelf of the Russian Federation extended beyond 200 nautical miles in ... the Bering Sea.”37
In June 2002, in light of the objections to Russia’s ECS claim, the CLCS recommended to the Russians that they provide a “revised submission” on Russia’s claims in the central Arctic.38 Russia reportedly will make an amended submission to the CLCS at some point in the future. In addition, Canada and Russia recently signaled that they will cooperate with each other to demarcate their respective ECS boundaries in the Arctic.39
The U.S. objections to the Russian ECS submission and the CLCS’s subsequent rejection of the Russian claim call into question the repeated assertions by UNCLOS proponents that, absent U.S. accession to the convention, the United States is a helpless bystander in demarcation of Arctic ECS boundaries.40 In fact, the United States has raised objections to the CLCS on other ECS submissions, such as those made by Australia and Brazil.41
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).”