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Those in favor of UNCLOS ratification have asserted that, unless the United States becomes a party to the treaty, it will not be able to adequately protect its interests. Proponents argue that the United States will be left without a voice when the Arctic region is being divided amongst other nations. They suggest that unless the United States is able to participate in the formal processes codified in UNCLOS, Russia and the other relevant nations who may go before the CLCS will have a substantial advantage in claiming Arctic territory. But, as discussed above, the CLCS is a semi-secretive process where a nation, whether it is a party to UNCLOS or not, will not be able to contest another nation's scientific findings to the Commission." Moreover, if the matter is indeed settled through multiparty negotiations, the status of UNCLOS in the United States will likely be irrelevant because the matter will be settled outside of the treaty.
Despite UNCLOS's mandate that the CLCS examine a nation's claim to a physically connected continental shelf, problems arise with the Commission's structure. Sessions of the CLCS are secret."' The only nation that is privy to the CLCS deliberations is the one that submitted the scientific data purporting to support an extended continental shelf claim.20 Because the CLCS "considers itself bound by States' requests to keep their submissions information confidential,"21 the executive summaries of the CLCS sessions do not contain any details. Moreover, the CLCS process itself seems to be the only check on possible abuse by a nation making a fraudulent or erroneous extended continental shelf claim. Written interventions by nations that are not opposite from or adjacent to a submitting state are not allowed.
The United States must stand up, take notice, and resist any effort to grant Russia or any other nation exclusive control over the Arctic's resources. Because the United States is not a party to UNCLOS, it must argue for a solution outside the treaty. This dispute is likely to take place in multi-party negotiations, and it is imperative that the United States shore up its legal positions now.
As it has done for quite a long time, the United States may rely on the doctrine of the freedom of the high seas codified in the Convention on the High Seas to assert that it is permitted to mine and navigate the area that Russia is attempting to claim. In addition to allowing free navigation of the high seas, that doctrine, now a part of international custom, allows any nation to participate in exploitation of the resources of a vast majority of the oceans. By arguing that UNCLOS does not apply to non-parties, the United States will be able to rely on this widely-supported doctrine while extracting oil, natural gas, and minerals from the seabed. An application of this doctrine will provide the United States with the best opportunity to serve its own interests without sacrificing its sovereignty to an international tribunal.
Still, another declaration asserts that Article 65, the UNCLOS provision pertaining to conservation and management of marine mammals, lends direct support to the present moratorium on commercial whaling and the establishment of sanctuaries and other conservation measures. The same declaration also asserts that states must cooperate with respect to all cetaceans not just large ones. This declaration is a clear reference to the work of the International Whaling Commission (IWC) although it does not identify the IWC by name. To understand the context of this declaration, the moratorium on commercial whaling, which has been in effect since the mid-1980s, has come under assault in recent years by pro-whaling states that find no basis in law for the continuation of the moratorium. Furthermore, the reference to "all cetaceans" not just large whales speaks to an ongoing debate in the IWC: that is, whether or not the IWC is competent to regulate small cetaceans (i.e., dolphins and porpoises) as well as the great whales. The effect of this declaration will likely be to lend greater U.S. support to the efforts of the IWC which today has a solidly conservationist agenda.
By most accounts, U.S. ratification of UNCLOS will have a positive effect on the environment. This is not because the U.S. will be binding itself to any new substantive norms. On the contrary, most substantive provisions of UNCLOS are already part of U.S. policy and have been for many years. Despite this, the conservation of ocean wildlife, the protection of delicate marine ecosystems, and the control of marine pollution are by their very nature multilateral issues. U.S. ratification will demonstrate U.S. commitment to address these problems in a cooperative manner at a time when some view U.S. policy as generally antithetical to multilateral arrangements. The environmental community strongly favors UNCLOS and U.S. ratification would send a message of support.
Among the benefits the U.S. will receive from UNCLOS membership is the ability to have a judge of U.S. nationality serve on the ITLOS and the right to participate in the amendment process of the treaty as provided for in Article 312. The power to amend the treaty is vested in the parties 10 years after the treaty has entered into force.18 The 10-year anniversary was November 16, 2004. The U.S. would be entering the game just as amendments become possible. Admittedly, the question of amendment to such a comprehensive legal instrument is fraught with difficulties, but U.S. membership ensures that any future amendments will only be adopted when the U.S. is a full participant in the process.
As previously discussed, less than two weeks before President George W. Bush left the White House, the Bush Administration issued a Presidential Directive asserting that "[t]he United States is an Arctic nation."268 The Directive declares that "[t]he United States has broad and fundamental national security interests in the Arctic region and is prepared to operate either independently or in conjunction with other states to safeguard these interests."269 In addition to asserting "lawful claims of United States sovereignty, sovereign rights, and jurisdiction in the Arctic region,"270 the Directive encourages U.S. agencies to "[tlake all actions necessary to establish the outer limit of the continental shelf appertaining to the United States, in the Arctic and in other regions, to the fullest extent permitted under international law."
The terms of the Directive essentially instruct the United States to abide by UNCLOS and map the U.S. continental seabed in order to submit an extended continental shelf claim to the CLCS.272 In fact, when President Bush issued the Directive, he expressly called on the U.S. Senate to ratify UNCLOS, explaining that UNCLOS offers "[tihe most effective way to achieve international recognition and legal certainty for our extended continental shelf."273 Succeeding Vice President Biden as Senate Foreign Relations Committee Chairman, Senator John Kerry also said he would advocate for ratification of UNCLOS274 and would like to bring the Convention to a vote this year.275 As explained by Kerry, "'[i]n order to guarantee secure borders ... and protect our marine resources, we must become full partners with the other Arctic nations and ratify the U.N. Convention on the Law of the Sea."'276 Secretary of State Hillary Clinton also endorses the UNCLOS and stated during her confirmation hearings that ratifying the Convention would be a priority.
Because nations that actively seek Arctic resources stand to obtain strategic advantages, efficient and effective resolutions of Arctic boundary disputes are of vital importance. As the Polar Ice Cap continues to melt, Arctic nations will continue to compete for Arctic territory and accompanying natural resources. The efficient, effective, and peaceful resolution of Arctic territorial disputes will have a profound impact on geopolitics, property ownership, and international law- especially in an economic climate of escalating oil prices.284 Although the international resolution of Arctic territorial disputes will require immediate and bold diplomatic action, as explained by scholar Bruce Jackson, "[t]he fact that the Arctic, more than any other populated region of the world, requires the collaboration of so many disciplines and points of view to be understood at all, is a benefit rather than a burden."
Because of the accelerated Polar Ice Cap melting, Arctic nations now have unprecedented access to vast wealth through their extended territorial claims. As explained by Senator Richard Lugar, an UNCLOS supporter, "the CLCS '[w]ill soon begin making decisions on claims to continental shelf areas,"' and if the United States does not ratify the Convention, the United States 'will not be able to protect our national interest."'262 Critics of UNCLOS assert the Convention would permit other nations to intrude on the United States' sovereignty, thereby undermining its national security interests.263 Those arguing for UNCLOS' ratification, however, postulate that ratification would strengthen U.S. sovereignty and security.264 In fact, unless the United States ratifies UNCLOS, the United States will be less able to promote and protect its self-interest as it will be "left without a voice when the Arctic region is being divided amongst other nations."265 Specifically, the United States will not be able to participate in the extended continental shelf process pursuant to Article 76 when Russia and other Arctic nations submit their extended territorial claims to the CLCS.266 This will not only put the United States at a significant disadvantage in the Arctic region, but will also undermine the current balance of socioeconomic power among the Arctic nations. For example, without UNCLOS ratification by the United States, Russia will be able "to pursue its [Arctic] claims without opposition from America" via UNCLOS.