Implications of Global Warming on State Sovereignty and Arctic Resources under the United Nations Convention on the Law of the Sea: How the Arctic is no Longer Communis Omnium Naturali Jure
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Further, UNCLOS does not allow any reservations to the treaty other than those explicitly provided for when acceding to the Convention. n341 It is possible to amend the Convention, but only as a full Member State. n342 UNCLOS established a ten year prohibition on amending the Convention subsequent to its entry into force. n343 Since UNCLOS entered into force in 1994, a year after the date of the sixtieth ratification, n344 this moratorium expired on November 16, 2004. n345 Accordingly, only Canada, Denmark, Norway, and Russia currently are able to proffer amendments to UNCLOS regarding Arctic mining. But should any such amendment be ratified before America accedes to the Convention, the U.S. would not be able to avoid its application when signing. The Senate's recalcitrance is based largely on a fear that the U.S. would be unable to play a dominant role within the Convention. Yet by refusing to ratify UNCLOS, the U.S. stands as one voice against the force of the entire Convention within the Arctic. Should [*242] the United States persist in its refusal to ratify UNCLOS, it will find itself in the same or weaker position if and when the CLCS recognizes the sovereign claims of other Arctic States that permit the exploitation of the pole's wealth. Indeed, regardless of American involvement, UNCLOS has established "a de facto regime governing the deep seabed, and U.S. interests are better served by active participation in the UNCLOS regime than by sitting on the sidelines."
The Convention provides institutional methods through which the other Arctic States are able to protect their rights under UNCLOS, which may well come at the expense of American interests. Instrumental bodies such as the ISA's executive body, the Council, will assume a highly influential role in the Arctic. In particular, the Council is responsible for promulgating the policies that would apply to Arctic mining. n335 The ability of the U.S. to play a part in the Arctic and protect against potentially inimical mining policies require participation in the Authority, and in the decisionmaking Council in particular. n336 The CLCS presents a similar problem. The CLCS process is kept secret, and only Member States may appoint commissioners to [*241] take part in the decision and review the data submitted by other countries. n337 Acceptance or rejection of a shelf proposal is final, and such a crucial decision may well depend on a variety of subjective factors, such as "the knowledge, the experience, and occasionally the bias of the scientist involved." Without an American commissioner, the U.S. cannot evaluate the content or feasibility of continental shelf submissions set to be filed by the other Arctic States. The element of time also adds to the sense of urgency, since a State must wait ten years from the date of ratification before submitting a continental shelf claim to the CLCS.