U.S. could rely on bilateral treaties as an alternative to UNCLOS regime
The United States can successfully pursue its national interests regarding its extended continental shelf by negotiating on a bilateral basis with nations with which it shares maritime borders to delimit and mutually recognize each other’s maritime and ECS boundaries.
Quicktabs: Arguments
Finally, one unique course may be to avoid a solution under public international law entirely, and instead, the Arctic coastal states may find a remedy through private international law, perhaps through the humble bilateral investment treaty. Interestingly, private enterprise has accommodated for an increasingly volatile environment of energy exploitation—an environment in which investors have grappled with governmental expropriation, unilateral changes to the tax regime, or other sources of economic and political instability.131 If the coastal states were to enter into a bilateral investment treaty specifically for the benefit of the oil and gas industry, the diplomatic negotiations over such a treaty may accomplish what an ATS-style structure, the CLCS, or any one of the formalists' legal “solutions” never could: provide the Arctic with a stable legal regime. Because bilateral investment treaties often include dispute resolution, security, investment protections, and a host of other facilitating mechanisms, many of the Arctic's chilling effects on energy development may be avoided.132 While the exact nature of such a bilateral investment treaty is beyond the scope of this Article, an agreement under private international law could be a plausible way forward.
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.