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Senate delay may prove costly since treaties without leadership can decay. Shortly after World War II, a unilateral move by the U.S. in the Truman Proclamations of September 1945, declaring ownership of the continental shelf seabed resources and announcing a policy for extended US jurisdiction of coastal fisheries far out to sea beyond the then dominant three mile limit, diplomatically backfired for the U.S. as the Proclamations resulted in a bevy of national claims by other nations. These nations claimed jurisdiction or even sovereignty over waters as much as 200 miles off their coasts - a development fraught with negative consequences for U.S. naval operations, shipping, and distant water fishery interests. The next three decades of U.S. oceans diplomacy were dedicated to containing this explosion of offshore claims. The solution was formulated with the leadership and consistent support of the U.S. and was formalized in the comprehensive package of new law in the 1982 Law of the Sea Convention. The Convention's central innovation was the creation of a third type of ocean zone from the new 12-mile outer limit of the territorial sea to 200 miles past which the traditional "freedom of the high seas" is retained. That in-between zone of ocean (the Exclusive Economic Zone) mixes coastal ownership and high seas freedoms in a way that allows the U.S. to have sovereign rights in the fish for 200 miles off its coasts but still allows the U.S. Navy to operate up to 12 miles off of other coastlines. The crucial point is that the Exclusive Economic Zone is a complex zone and is, by its nature, unstable, easily tending to gravitate to more and more ownership claims by the nearby coastal state.
The Law of the Sea Convention sets forth the deal, has the institutions to enforce the deal, and may be one of the main things that prevent a collapse of zones from recurring.
Since at least 1994, a strong base of support for accession to the Law of the Sea Convention in the United States has existed in the federal government, industry and civil society. It is likely that no other treaty has ever been so widely supported and yet failed to be put to a vote in the Senate for such a long duration. The Defense Department, the State Department, the Commerce Department, the U.S. Coast Guard, the oil industry, the shipping industry, and the fishing sector, as well as environmental and conservation non-governmental organizations and religious organizations all support the treaty.[4] Additionally, both the National Commission on Oceans Policy and the Pew Oceans Commission in their recent reports strongly urged immediate action by the Senate and accession to the Convention.
Further reflecting broad bipartisan support, in a highly unusual statement in the history of U.S. treaty ratification practice, all living former Legal Advisers of the U.S. Department of State issued a joint letter on April l7, 2004 to Senators William H. Frist (then Majority Leader), Richard G. Lugar (then Chairman, Committee on Foreign Relations), and John W. Warner and Carl Levin (respectively, then Chairman and Ranking Member, Committee on Armed Services.[5] In that letter, the eight former Legal Advisers wrote:
We are unanimous in our view that it is in the best interests of the United States that the Senate, at its earliest opportunity, grant its advice and consent to United States accession to the 1982 United Nations Convention on the Law of the Sea and to United States ratification of the 1994 Implementing Agreement that modifies Part XI of the LOS Convention.
WATKINS: I'll just pick up on one that's very special to me, and that's on intelligence. There was a Senate Select Committee hearing on this intelligence issue on law of the sea in 2004. And witnesses came from the CIA, from Defense, and they all confirmed that the U.S. intelligence plus submarine activities would not be impaired by this convention.
And so, again, the hearings have gone into detail across some of the questions you raised and the myths that are thrown out there by the opponents that somehow this is going to do great damage. And you know, when our P-3 was very closely monitored by the People's Republic of China a few years ago, one of the things we were accused of is getting intelligence over international waters with our air phones headed towards China mainland. And we were sitting there as non-members of the Law of the Sea Convention and would have weak grounds on which to base -- we would have good grounds on which to base it, but whether they would be listened to was questionable.
So again, intelligence is not only gathering information in national waters but also international. So the whole issue of intelligence gathering is another one of these myths that's thrown out there that we're going to lose our ability to do what we have to do to be number one in our national security efforts through good intelligence gathering. So I think that that is, again, one thing that's thrown up there in the air that has no basis whatsoever.
In addition to large deposits of Arctic oil, gas, and other natural minerals, the Arctic Ocean is connected to several significant breeding areas of fish stocks, which are anticipated to move farther north as an apparent result of changes in Arctic water temperatures. The National Oceanic and Atmospheric Administration has stated that this shift has been going on for the past 40 years, with some stocks nearly disappearing from U.S. waters as the fish “seem to be adapting to changing temperatures and finding places where their chances of survival are greater.”23 In fear of uncontrolled new developments, the North Pacific Fishery Management Council decided in 2009 to ban all commercial fishing in a 200,000-square-mile Arctic area, from the Bering Strait to the disputed U.S.-Canadian maritime border. As a reshifting of fish stocks takes place, increased fishing oppor- tunities are likely to result in disputes over quotas and fishing areas. The U.S. Coast Guard (USCG) is already patrolling the Bering Sea border with Russia, which has been the source of some tension because of overfishing and boundary disputes. Norwegian and Russian cooperation on fishing in the Barents Sea has generally been promoted as a positive example of border cooperation, but incidents between the Norwegian Coast Guard and Russian trawlers have occurred from time to time, such as the arrest of the Russian trawler Sapphire II for illegal dumping of fish in waters around Svalbard in late Sep- tember 2011. While the company owning the trawler was given a €57,000 fine, both Russian Foreign Minister Sergey Lavrov and Norwegian Foreign Minister Jonas Gahr Støre moved quickly to diffuse the issue and stress that there was “no conflict” between the countries regarding fisheries.24 With increased fishing activity in the Arctic, such issues are again likely to develop. At the same time, increased activity demands increased capacity from the national coast guards, as a large part of search-and-rescue activity revolves around fishing vessels.
The foundational element of any U.S. security strategy for the Arctic, including NSPD-66, is to ensure freedom of navigation. As a nation heavily dependent on shipping and maritime access, the United States has a vital national interest in supporting the most stringent enforcement of open sea lanes of communication. The most effective tool for governing and enforcing the right of free passage in international straits is the UNCLOS treaty.
The fact that the United States has not ratified the treaty is of key relevance to its efforts to ensure freedom of navigation in the Arctic and to take full advantage of the region’s economic benefits. A product of nine years of international collaboration and active U.S. participation, UNCLOS entered into force in 1994 and provides the most comprehensive framework available for governing the world’s oceans, including the Arctic. The treaty established internationally rec- ognized measures to claim sea areas and rights to territorial waters, exclusive economic zones, and extensions of national underwater continental shelves. Currently 161 countries and the European Union have joined the convention.32 While the United States has not ratified the treaty, it does view the treaty as international customary law and abides by nearly all its articles. It is unclear when the U.S. Senate will ratify the treaty, although both the Bush and the Obama administrations have sought ratification.
UNCLOS holds specific value for the Arctic security environment as it lays out a set of rules on how to divide disputed territory and resolve possible tensions. It also represents the only path for Arctic coastal states to submit scientific claims to extend their outer continental shelf, which provides important clarity for future economic development. While the five Arctic coastal states are limited by their exclusive economic zone of 200 nautical miles from their coasts, the convention allows them to extend their economic zone if they can prove that the Arctic seafloor’s underwater ridges are a geological extension of the country’s own continental shelf. Within 10 years of ratifying the UNCLOS, countries must submit evidence to the UN Commission on the Limits of the Continental Shelf, the governing body created to deliberate on these submissions, to make their case for an extended continental shelf.
Unfortunately, as UNCLOS nears its 40th anniversary, the United States has yet to ratify the treaty despite strong urging from the U.S. Defense and State Departments, as well as from the Joint Chiefs of Staff. In its “Arctic Roadmap,” the U.S. Navy actively supports accession to UNCLOS because it provides “effective governance: freedom of navigation, treaty vs. customary law, environmental laws, and extended continental shelf claims.”33 Joining UNCLOS would give the U.S. government a clear framework in which it could more effectively confront growing difficulties pertaining to freedom of navigation in the Arctic region. By not ratifying the U.N. Convention on the Law of the Sea, the United States is at a considerable economic disadvantage as the other Arctic coastal states submit their claims. The United States maintains the world’s largest EEZ and has 360 major commercial ports. With potential claims of up to 600 miles of possible resource-rich continental shelf territory in the Arctic, remaining outside the UNCLOS only erodes the position of the United States in the region.
These difficulties have been made explicitly clear in recent reports from the Department of Defense and the U.S. Navy. The Department of Defense has noted that its “lack of surface capabilities able to operate in the marginal ice zone and pack ice will increasingly affect accomplishment of this mission area [sea control] over the mid- to far-term.”34 Moreover, the U.S. Navy “acknowledges that while the Arctic is not unfamiliar for the Navy, expanded capabilities and capacity may be required for the Navy to increase its engagement in this region.”35 These challenges are likely to increase moving forward unless further action is taken. As discussed below in further detail, the fact that the United States has yet to ratify UNCLOS compounds these issues.
While Arctic coastal states will play a dominant role in the Arctic, non-Arctic states that benefit from Arctic hydrocarbons and ice-free shipping routes will also seek a role. China, in particular, has focused financial, scientific, and political capital in the Arctic. As the world’s largest shipping nation, with 46 percent of gross domestic product40 derived from the shipping industry, China is aware that any changes to world shipping routes will have “a direct impact on [its]...economy and potential trade with respect to both imports and exports.”41 China is concerned that “the advantage of the Arctic routes would substantially decrease if Russia were to unilaterally charge exorbitant service fees for ships passing through its EEZ waters”42 and thus is advocating strong international cooperation within multilateral governing structures. In response to future Arctic opportunities, China has built the world’s largest non-nuclear-powered icebreaker, Xuelong (Snow Dragon), which has completed four scientific expeditions to the Arctic Circle to conduct oceanographic surveys and scientific research.43 In September 2010, the Polar Institute of China concluded an agreement on polar research cooperation with the Norwegian Polar Institute, to which China will contribute advanced instruments and laboratories, and will build a research center and a new ice- class research vessel.44 China has already engaged Canada in bilateral meetings to confront poten- tial issues that could arise from the changing Arctic environment; it is also eager to build relations with the Nordic countries in hopes of establishing cooperation between Chinese and Norwegian companies in extracting Arctic energy resources.
In terms of capabilities, the US is like most Arctic neighbours in not being adequately equipped to optimally operate year-round in an arctic maritime environment. After the events of September 11, 2001 funding for polar research was dramatically cut, and the US was left with only three Arctic-capable icebreakers.61 The disparity between the growing importance of the Arctic and the lack of capability to adequately patrol it has been recognised by the US government.62 The issue evidently has not reached a point yet where significant resources will be diverted to the Arctic at the expense of other priorities. Thus like most Arctic states at the moment, with the possible exception of Russia and to a lesser degree Canada, the US chooses to substitute rhetoric over substance.
From a security perspective, this may in fact be viewed in a positive light. While the US and other Arctic states recognise that access to the region may dramatically increase in coming years, the current reality is that Arctic sea ice will dramatically limit marine traffic and resource exploitation for the immediate future. The longer the sea ice serves as a deterrent for any possible ‘scramble for the Arctic’, the more time is available for stakeholders to use dialogue to diffuse stress points and find compromise positions on contentious issues such as boundary disputes. One such area of friction that the US could eliminate is its non-ratification of UNCLOS. Ratifying the Convention would send a signal to all Arctic and maritime stakeholders that the US is not simply a hegemonic state that abides by only its own rules, but a member of the global community that values and upholds international law.
While some media reports have attempted to link Canada and Russia’s increased military focus on the Arctic as evidence of a desire for military confrontation over Arctic resources,53 there is little in terms of strategic intent that would lend credibility to such claims. In Canada’s case, it has long perceived the need to demonstrate a tangible presence over the vast Arctic territory it claims as its own. The sheer scale of the territory in question, and the costs and logistics associated with maintaining even a modest presence in the Arctic, has historically led to Canada talking tough on Arctic sovereignty, but doing little by way of action. As the Arctic now becomes more accessible, Canada merely recognises the need to match its actions more closely with its rhetoric. If the Canadian government follows through with the majority of the initiatives mentioned above, it would only serve to reinforce Canada’s Arctic sovereignty claims and be seen by its own public to be taking action on a highly topical issue. These actions will not destabilize the Arctic, provided that the Canadian government is clear and consistent in communicating its intent.