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Gaining exclusive sovereign rights over the full potential U.S. Arctic extended continental shelf will prove difficult, however, due to the close proximity among the United States, Russia, and Canada and the potential for overlapping claims to extended continental shelves. The Russian Federation was the first UNCLOS party to submit an extended continental shelf claim to the CLCS.97 The CLCS rejected Russia’s initial 2001 submission but permitted it to revise and resubmit its claim. Russia anticipates submitting its revised claim for its extended shelf in the Arctic by the end of the year.98 Denmark, Iceland, and Norway also submitted claims to the CLCS99 and Canada must do so by December 2013.100 This will leave the United States as the only Arctic nation that has not formally claimed the outer limits of an extended continental shelf. Moreover, if Russia accepts the commission’s recommendations, Russia’s extended continental shelf boundaries are final and binding (although it is not clear who is so bound). If the United States accedes and eventually perfects a claim to the outer limit of its extended shelf with the CLCS, there is a chance that its extended continental shelf will overlap with Russia’s. UNCLOS allows for two (or more) legitimate outer limit claims but leaves it to the parties to agree to terms that split the overlapping extended continental shelf between them. The United States has provided observations on submissions by two other states, but, as a non-party, it cannot submit a claim under Article 76.101
Conflict in the region, however, is not inevitable. Among the NATO allies, especially, there have been plenty of diplomatic successes to resolve differences. All the parties within the region have shown a willingness to work within the constraints of international law. Even Russia, despite its flag-planting antics, has accepted those constraints. In discussing Russia’s position on Arctic policy, its Ministry of Foreign Affairs released the following press statement, ―Russia strictly abides by the principles and norms of international law and firmly intends to act within the framework of existing international treaties and mechanisms. As was pointed out in the joint declaration of the ministerial meeting of the five Arctic coastal states held in Ilulissat, Greenland, this past May, these states, including Russia, are committed to the existing international legal framework that applies to the Arctic Ocean and to the orderly settlement of any possible overlapping claims.59 It is only in the Arctic areas where international law has failed that conflicts are escalating. Consequently, the United States must seek a way to bolster international law in order to provide stability in the region. To this end, U.S. Arctic policy must be guided by the following six steps.
The world is at a precipice of a potential new cold war in the Arctic between Russia and the NATO Arctic nations. Russia is in a position to win it. The number of icebreaking hulls a country operates is the simplest and most tangible measure that can be used to judge its ability to conduct northern operations. The United States has a total of four diesel-powered icebreakers (one of which is out of service for this year) whereas the Russians have 14.51 Of the 14, seven are nuclear-powered--capable of cutting through nine feet of ice without even slowing down. In comparison, the U.S. icebreakers can only make it through six feet of ice at a constant speed.52 Even China and South Korea, non-Arctic nations, have icebreakers in preparation for regional access.53
In addition to greater Arctic naval power, the Russians also have a superior support infrastructure. The Soviet Union, in sustaining the Northern Sea Route and oil development in the Barents Sea, invested tremendous capital in developing a robust infrastructure of rail lines and river transport services. It maintained this infrastructure by offering state workers huge subsidies and inflated wages. Following the collapse of the Soviet Union, and the loss of state jobs, the region experienced a significant reduction in population. However, the Russian North still has a fully functioning infrastructure in place.54 Meanwhile, the North American presence is ―naked and unguarded.55
Russia intends to use these weaknesses along with divisions among the NATO members to increase its power in the region. According to a leading Russian economic journal, ―...Russia’s main task is to prevent the opposition forming a united front. Russia must take advantage of the differences that exist [between NATO states]."56 Moreover, a prominent Russian Navy journal acknowledged that an increase in regional militarization could increase the possibility for local military conflict. ―Even if the likelihood of a major war is now small, the possibility of a series of local maritime conflicts aimed at gaining access to and control over Russian maritime resources, primarily hydrocarbons, is entirely likely."57
Arctic policymakers must also overcome the inertia arising from the fact that near-term prospects for industry action on the Arctic extended continental shelf and beyond seem remote. Potential Arctic benefits, no matter how lucrative, provide little political incentive for immediate action. Incentive is further reduced by the ease with which the United States has been able to enjoy many UNCLOS benefits without joining the convention. While this has contributed to a more stable maritime legal regime conducive to U.S. global interests, it has also led UNCLOS opponents to claim successfully—albeit unwisely, and, in some instances incorrectly—that the United States can continue to exploit all UNCLOS benefits without paying the minimal costs of UNCLOS membership. Application of this fallacy to the Arctic could be costly.
The United States should join UNCLOS to fully preserve U.S. Arctic interests. Although some of the convention’s most important advantages in the Arctic may not be immediately available, UNCLOS would allow the United States to preserve maximum flexibility today for developing offshore energy resources tomorrow. In addition, accession would reinforce a legal regime favorable to other important U.S. Arctic interests as well, and deter prospects for the UNCLOS to collapse or be revised to the detriment of U.S. interests.
These arguments have proven a successful rallying point for UNCLOS opponents and a potential political millstone for senators who might otherwise be inclined to support the convention. The arguments have retained force despite the fact that the United States itself originally conceived the royalty plan under the Nixon Administration, with the full support of U.S. industry—support that has remained consistent across nearly four decades. Royalties were proposed as a modest concession in return for agreement on the U.S.-sponsored extended continental shelf regime.138 Indeed, most of the oil and gas that may be recovered would be in the first six years and thus would not ever be subject to royalty payments. The “UN-style bureaucracy” argument has also endured despite the fact that opponents have presented no evidence that the ISA is either inefficient, overstaffed, or corrupt at any time throughout the nearly 19 years since its founding in 1994.
Many rare earth products and technologies possess dual-use attributes, meaning they are used for both commercial and military purposes. In the commercial sector, for example, today’s hybrid vehicles employ rare earths permanent magnets in their electric traction drives,27 which either replace or supplement internal combustion engines in hybrid automobiles, increasing energy efficiency.28 Additionally, the Toyota Prius has a nickel metal hydride (Ni-MH) battery for energy storage, which increases overall fuel economy.29 Wind turbines also integrate permanent magnets in gear- less generators for better reliability and online performance.30 The new fluorescent light bulbs on the market utilize rare earth phosphors. These light bulbs consume 70 percent less energy than the older incandescent bulbs.31 Finally, rare earths are found in automobile catalytic convertors to reduce dangerous emissions of CO2 and ozone, contributing to a cleaner environment.32
The potential implications of this extended continental shelf regime are profound. With one of the largest coastlines in the world, the United States is expected to have over 291,000 square miles of extended continental shelf.89 The U.S. continental margin off the coast of Alaska alone may extend to a minimum of 600 miles from the Alaskan baseline.90 Alaska’s extended continental shelf lies over the Arctic Alaska province, one of the many oil- and gas-rich basins in the Arctic.91 It is estimated that there may be almost 73 billion barrels of oil and oil-equivalent natural gas located in the Arctic Alaska province, the second highest estimated production capability of all Arctic provinces.92 The continental shelf within the 200-mile EEZ under the Beaufort and Chukchi Seas alone may have over 23 billion barrels of oil and 104 trillion cubic feet of natural gas.93 Not only would development of these resources promote energy independence, a U.S. national security objective,94 it would also create almost 55,000 jobs per year nationwide and generate over $193 billion in federal, state, and local revenue over a fifty-year period.95 Due to delays in Arctic oil and gas exploration in the Chukchi and Beaufort Seas, both within the U.S. 200-mile EEZ, the earliest estimated date of extraction is sometime after 2019.96
As most of the Arctic Ocean has not been explored, one of the U.S. policy goals in the Arctic is to increase understanding through scientific research.60 Currently, the foremost scientific research interest for the United States is to obtain data regarding the geologic composition of the continental margin. In addition, the United States is pursuing research in climate variability, Arctic marine ecosystems, oil spill effects, and unconventional energy and mineral resources.61 Marine Scientific Research (MSR) in Russian arctic waters, where Russia has the longest Arctic coastline, is hampered by Russian reluctance to permit U.S. researchers access to Russian waters.
The United States has long accepted the UNCLOS regime for marine scientific research. UNCLOS gives coastal states exclusive control over scientific research in the territorial sea.62 Coastal states also have extensive rights in the EEZ, including the right to reject a request by a foreign nation or company for access to its EEZ or continental shelf if the project is of direct significance for the exploration and exploitation of natural resources63 or involves drilling into the continental shelf, the use of explosives, or the introduction of harmful substances into the marine environment.64 The convention provides all states the right to conduct marine scientific research in the high seas.65 A state’s ability to perform scientific research in the area is subject to the provisions of Part XI, the deep seabed mining regime.66 Article 143 states that all member states can conduct marine scientific research in the area, but they must provide the results of their research and analysis to the international community through the International Seabed Authority.67
No nation, including the United States, disputes the moral and economic imperative to protect the Arctic’s pristine environment. The United States understands the fragility of the region and the need to practice responsible stewardship while pursuing its Arctic interests.39 UNCLOS plays a prominent but not exclusive role in this regard.
UNCLOS creates an obligation to “protect and preserve the marine environment.”40 However, it avoids specific rules or standards in favor of creating zones of regulatory competence and providing a framework of principles designed to encourage the creation of more specific rules and standards through domestic regulation and separate international agreements.
UNCLOS provides states with exclusive, sovereign jurisdiction to regulate the environment within their territorial sea.41 States also have sovereign rights “for the purpose of exploring and exploiting, conserving and managing the natural resources . . . of the waters superjacent to the seabed and of the seabed and its subsoil,”42 and “jurisdiction . . . with regard to . . . the protection and preservation of the marine environment” in the exclusive economic zone (EEZ).43 In exercising rights and performing duties in the EEZ, coastal states must do so with “due regard” for the rights and duties of other states,44 not the least of which is freedom of navigation.
The most significant strength of international law—especially international treaty law—is its ability to establish norms of expected behavior among the community of sovereign states. This normative power of international law should not be underestimated for its ability to drive and shape the behavior of states toward stabilizing, predictable behavior. Maritime disputes in particular have benefited from the normative power of the United Nations Convention on the Law of the Sea (UNCLOS). One important normative aspect of UNCLOS was its establishment of a limit of a fully sovereign territorial sea to 12-nautical miles and creation of a 200-nautical mile exclusive economic zone. Prior to international negotiation of a final text in 1982, international claims reflected a hodgepodge of approaches. Indeed, as late as 1990, prior to the date in 1996 when UNCLOS came into force, thirteen states still claimed a 200 nautical mile territorial sea. By 2008, the normative power of UNCLOS reduced this number to seven. As of today six of these remaining seven States are party to UNCLOS, which through Article 3 explicitly limits the territorial sea to 12-nautical miles. Thus, on a global basis the number of states remaining beyond the normative reach of UNCLOS and continuing to claim a 200-nautical mile, fully sovereign territorial sea appears in fact to be only one—Peru.
In East Asia, in many ways there is a similar pattern of close conformity to the norms established in UNCLOS. China and Vietnam represent two countries that have not yet fully adopted its norms. In Vietnam’s case, its baselines remain grossly excessive. In China’s case, it too maintains numerous excessive, non-normative baseline claims, an ambiguous claim of historic or other rights within the 9-dashed line that has no basis under UNCLOS, and it remains a leaders among a small group of coastal states with non-normative perspectives on foreign military activities in the exclusive economic zone. Recent public coverage of Chinese naval activities in the exclusive economic zones of Japan and the United States suggest that perhaps this is one more way in which Chinese perspectives on international law will join the normative tide. However, even with the remaining deficiencies, both China and Vietnam are party to UNCLOS, have fully incorporated many of its other provisions into their domestic laws, and take an active part in the organizations established by this convention to further develop international law of the sea.