Evidence: Most Popular
Facially, it appears that the United Nations Convention on the Law of the Sea (UNCLOS), a comprehensive international maritime treaty establishing rights, responsibilities, and procedures for settling claims in the world’s oceans and seas, should be the proper mechanism to determine jurisdiction in the Artic.9 UNCLOS, how- ever, is not a viable option because not all of the interested parties have ratified the treaty and the UNCLOS component that recom- mends limits of the continental shelf has not achieved the status of customary international law.10 While the United Nations should take steps to address these shortfalls, it is highly unlikely that any amendment to the present regime will be proposed and accepted before anarchy on the high Arctic seas ensues. UNCLOS, therefore, is not the answer.
Despite the realist orientation of the analysis, this article nevertheless contends that the best course of action to resolve the territorial disputes in the Arctic is through multilateral initiatives on areas of common interest (counter-terror operations, search and rescue, crisis management, etc.) that can result in a political detente among Arctic powers that may incentivize Arctic powers enough to consider the benefits of a formal multilateral agreement. Failure to adopt such an approach will result in a continuation of the current status quo. As noted by the Ilulissat Declaration17, the Arctic states are , objectively, firmly entrenched in their belief that the current legal system is enough to provide answers to all the Arctic “questions”. Regardless of such belief, there is still no structure to provide orderly development in the unclaimed and disputed Arctic.18 "Note: Frozen Assets: Ownership of Arctic Mineral Rights Must be Resolved to Prevent the Really Cold War ." George Washington International Law Review. Vol. 41, No. 3 (2011): 651-680. [ More (5 quotes) ] But waiting for the issues to “work themselves out” may not be an option. The Arctic is rapidly changing19, and with such changes, what was once an inaccessible wasteland may be open to transportation, energy development, military deployments, and political posturing. Absent some multilateral initiatives, the Arctic may become a mad “scramble for territory and resources”.20
Additionally, UNCLOS contains specific provisions for extended Outer Continental Shelf (OCS) claims. Besides massive deposits of oil and gas, the Arctic contains major mineral deposits such as nickel, iron ore, tin, uranium, copper, and other rare earth minerals. Every Arctic nation is accessing locations and methods to extract these resources.224 In the massive land grab for natural resource rich areas that has been going on between the other seven Arctic nations, the U.N. as detailed in UNLCOS is the arbiter. As a non-party, the U.S. is left out in the cold with respect to OCS claims. The OCS is rich in natural resources and opportunities for positive economic impact. According to the U.S. Geological Service, the U.S. Arctic contains 29.96 billion barrels of oil and 72 billion barrels of natural gas (about 33 percent of technically recoverable oil and 18 percent of technically recoverable gas in the entire Arctic).225 Although the U.S. abides by the rules of UNCLOS without having ratified it, it trails behind the remainder of the Arctic states on its policy and in asserting its presence in the region.226 Signing and ratifying UNCLOS, like Canada, would prove to be an excellent framework for shaping U.S. Arctic policy and advancing the current blueprint for the region.
Some may argue that U.S. does not need UNCLOS due to the Arctic Council and the active role the U.S. has taken. Despite raising awareness about Arctic issues, the Arctic Council lacks any regulatory authority or the power to address military issues.227 As a result, the Arctic Council is limited in overall effectiveness and accession to UNCLOS is a better avenue to assert U.S. sovereignty in the region.
United States accession to UNCLOS is critical to ensure sovereignty in the Arctic. UNCLOS provides specific guidance for dealing with maritime borders disputes and the outer continental shelf claims through an international tribunal and arbitration.221 Currently as a non-signatory to UNCLOS, the U.S. is not able to avail itself of these provisions and can only engage bi-laterally as needed.
The consequences of this are becoming increasingly clear in relationships with Canada and Russia, with whom the U.S has active maritime border disputes. The U.S. is in dispute with the Russian Federation over the Bering Strait and with Canada over the waters of the Northwest Passage (NWP). The NWP crosses over North America, in an area that Canada claims are internal waters not subject to the conventions of “innocent passage” as established under customary international law and UNCLOS. On the contrary, the U.S. regards the waters of the NWP as an international strait for navigational purposes, through which ships can pass without interference by the coastal state (Canada).222 The opening of the Northwest Passage would have a global impact on marine transportation. It would cut shipping routes between ports in Asia and U.S. east coast by nearly 5,000 miles.223 Due to a lack of standing under the UCLOS treaty, the U.S. is arguing from a position of weakness with respect to the statuses of the Northwest Passage, the Northern Sea Route, and the Bering Strait and the subsequent threat to Freedom of Navigation.
Norway’s Arctic Strategy is a well-developed plan of action, which could be a lesson for U.S. policy makers. Unlike the U.S., Norway has always identified strongly with the Arctic and is dedicating resources and funding for Arctic projects. In order to build influence in the region, Norway has pushed to expand the Arctic Council to other nations. Through UNCLOS’ dispute resolution mechanism, Norway has been working to settle maritime border disputes with her neighbors in a manner that would likely not be possible in simply bi-lateral talks. Norway’s contemporary Arctic strategy is focused on cooperation with Arctic neighbors, not competition. This will be critical for ensuring sustainable natural resource management, security, and for upholding UNCLOS as a framework for Arctic governance.
Like the other Arctic nations, except the U.S., Russia is a signatory to UNLOS. The USSR became a signatory in 1982; UNCLOS was later ratified in 1997 by the Russian Federation.117 Russia has utilized the provisions of UNCLOS to advance sovereignty, especially along the Northern Sea trade route, which passes through Russia’s northern Exclusive Economic Zone (EEZ). Russia is using UNCLOS provisions in an attempt to exercise control over the Northern Sea route by requiring vessels to seek permits and submit their vessels to inspection due to the ice conditions. This is considered an overreach of authority by the U.S., which is protesting the plans.118 As a non-party to UNCLOS, the U.S. cannot utilize the established means of the treaty to protest.
The U.S. currently treats UNCLOS as customary international law, which means that where the U.S. can abide by the language of the treaty, it does. In practice, the U.S. recognizes the majority of the treaty as binding due to many years of custom, which renders most of the treaty as international law and therefore binding on all nations. Unfortunately, this does not allow the U.S. to participate in the dispute resolution guidelines laid out in the treaty because these are not recognized as customary international law. The dispute resolution guidelines are relatively new in the course of history, so the only way to benefit from these provisions is to accede to the treaty. As a result, current maritime boundary line disputes in the Arctic with Canada must be dealt with on a bi-lateral level only and not under the dispute resolution mechanisms established under UNCLOS. This is duplicative, wasteful, and lacks predictability of eventual resolution. The tools and mechanisms of UNCLOS appear to be a better way to deal with dispute resolution as it is seen as the standard method of resolution by all signatories.
The U.S. and Canada have long been in dispute over the waters of the Northwest Passage, which Canada claims are internal waters not subject to the conventions of “innocent passage” as established under customary international law and UNCLOS, while the U.S. regards these waters as an international strait for navigational purposes, through which ships can pass without interference by the coastal state (Canada).67 The Northwest Passage that crosses over North America would cut shipping routes between ports in Asia and U.S. east coast by nearly 5,000 miles.68 Since the U.S. lacks standing under the treaty, it is arguing from a position of weakness with respect to the Northwest Passage and threat to Freedom of Navigation.
There are a few conservative policy makers who believe UNCLOS is an impediment to U.S. sovereignty; they do not support the U.S. joining UNCLOS.62 But they are in the minority.63 According to the University of Virginia Center for Oceans Law and Policy, the Secretary of Defense, Commandant of the Coast Guard, Chairmen of the Joint Chiefs of Staff and numerous elected officials support the U.S. joining UNCLOS.64 Additionally, every president since Clinton has pushed for ratification, but the treaty has not survived the Senate, most recently in 2004.65 The ratification of UNCLOS would help the U.S. gain greater influence, sovereignty, and improve strategic vision and cooperation in the Arctic region.66 It appears there are a minority of influential members of the Senate who do not want the U.S. subject to the jurisdiction of an international tribunal (International Law of the Sea Tribunal), which accession would require.
China pursues its security through interior strategies that involve the development of rings of security around central areas of national interest. The Chinese have long felt vulnerable from the sea, and their current maritime strategy seeks to reduce that vulnerability by extending a ring of maritime control around China’s periphery. China pursues this control through a combination of force-structure development and legal assertions. Tensions arise because China’s strategy conflicts with the territorial claims, resource interests, and security concerns of other states in East Asia. China’s strategy also causes friction with the United states, which relies on freedom of navigation in maritime East Asia for American security interests and which must reassure regional allies and partners that american security guarantees are meaningful. In order to ensure the position of the United States in East Asia, american policies must focus on maintaining the region as an open, maritime system. This requires continuous development of technological advantages to ensure that the center of power in Asia does not migrate from the maritime domain to the continent. It also requires the United states to support the ability of allies, friends, and partners to resist China’s non-militarized coercion, as well as to reinforce the normative structure that supports the efficacy of maritime power in the region and around the globe.
Third, American policy makers must realize that the contest for East Asia is one of both power and law. International law supports and legitimizes the exercise of American power. It ensures that the landscape of domestic and international opinion is favorable to american objectives, policies, and actions. International law of the sea in particular, through its assurances of freedom of navigation for security as well as commercial purposes, supports the continued nature of East Asia as a maritime system. International law regarding the free use of international airspace operates similarly. accordingly, to ensure its future position in east asia the United States should take specific actions to defend the international legal architecture pertaining to the maritime and aerial commons. acceding to the United Nations Convention on the law of the sea and once again exercising direct leadership over the development of its rules and norms is the first and most critical step. The Department of State should also reenergize its limits in the seas series to reinforce, publicly and repeatedly, international law related to sea and airspace. a good place to begin the new series would be with a detailed assessment of why international law explicitly rejects China’s “U-shaped line” in the South China Sea as the basis for Chinese jurisdiction there. others could be written to describe why China’s east China sea continental-shelf claim misapplies international law and why China’s ADIZ unlawfully asserts jurisdiction in the airspace. My sense is that East Asian states, indeed many states around the world, are desperate for active american leadership with regard to the norms and laws that govern legitimate international action.