Evidence: Recently Added
The South China Sea is vital to the United States and world policy. Half of the world's gas, oil, and shipping tonnage navigate this area.143 Approximately $5.3 trillion of global trade passes via the South China Sea each year.144 Likewise, the area is particularly critical to U.S. trade;145 $1.2 trillion of the $5.3 trillion total global trade passes through U.S. ports.146 In addition, while the fish stocks in the South China Sea are both depleted and poorly controlled, there is still a growing demand due to local population increases.147 The South China Sea holds almost one-tenth of the world's fisheries used as food for people.148 Finally, the potential for natural resources is equally great. Recent reports found that the South China Sea holds about 1.6 billion barrels of recoverable petroleum, while some Chinese studies increase this estimate by a power of ten.149 Further, it is estimated that a large amount of methane hydrates are in the South China Sea-"initial median estimates [of methane hydrates] place . . . China's [reserves] at 5 trillion cubic meters.”150 Control of the South China Sea is thus very important.
Advances in deep sea resource exploration and exploitation technologies have also given rise to the prospect of accessing seabed resources not only within areas of outer continental shelf but in deeper waters and areas beyond national jurisdiction. While developments in the area are proceeding apace, notably in respect of the Clarion-Clipperton Zone in the Equatorial North Pacific Ocean and in the Central Indian Basin of the Indian Ocean,n areas of outer continental shelf subject to national jurisdiction are likely to be particularly attractive areas for development from the perspective of the coastal states, which hold sovereign rights over these areas. Indeed, it has been estimated that the Clarion-Clipperton Zone alone holds more than 27 billion tonnes of nodules containing of the order of 7 billion tonnes of manganese, 340 million tonnes of nickel, 290 million tonnes of copper and 78 million tonnes of cobalt as well as rare earths needed for the production of many hi-tech products such as smart phones.78 This led the International Seabed Authority's (ISA) Legal Counsel, Michael Lodge, to comment in May 2013 that "We are on the threshold of a new era of deep seabed mining."79 While the figures suggested may appear extraordinary, there seems little doubt that interest in the exploitation of these resources will be sustained so long as commodity prices remain high. The ISA's approval of exploration plans for the development of cobalt-rich manganese crusts by Chinese and Japanese concerns during its nineteenth session in July 2013 also appears to bear out the seriousness of this interest.80
In this context, marine species and microorganisms that have evolved to exist in extreme environments, so-called "extremophiles," are of particular interest. Such environments and habitats include the deep sea, as well as in the vicinity of seamounts, hydrothermal vents, methane seeps. Such features have been discovered on the extended continental shelf. Organisms living here have adapted to survive in the complete absence of light, in conditions of extremely high pressure, in either low or very high (for example in the vicinity of a hot water vent) temperatures, or in environments characterised by extreme salinity or acidity.
This has led to the emergence of "bioprospecting" and the deep seabed, including outer continental shelf areas, are likely to be a focus for these activities. This represents a potentially rich resource and opportunity for coastal states. Indeed, marine biotechnology-related products were estimated to be worth $100 billion (USD) in the year 2000 alone.86 The potential for further growth in marine bioprospecting is emphasised by the fact that around 1,000 new marine natural products are reported annually. This points to how biodiversity-rich yet under-explored and thus little known the oceans are. Indeed, it has been suggested that the oceans are ninety-five percent unexplored." Moreover, the number of ocean-dwelling species has been estimated at around ten million-a figure fifty times greater than the number of marine species reported thus far. In this context, deepwater areas hold particular promise as they are likely to host unique extremophiles and also because these areas are least explored, notwithstanding considerable advances in technologies applicable to exploring deep sea areas made in recent decades. This is illustrated by the fact that of over 30,000 marine natural products reported since the 1960s, less than two percent derive from the deep sea organisms.89
When we consider military presence in the Arctic, we must not assume that militarization is on the horizon. Nor should we assume that the Arctic is a chaotic panacea ripe for expansive commercialization. Rather, countless women and men, hailing from an expansive range of associations, nations, and Arctic indigenous groups have contributed invaluable knowledge toward fulfilling the desire for cooperation and peaceful relations between Arctic nations. At the very least, the spirit of the Arctic Council under which members negotiated not one, but two legally binding agreements within the span of two years must be maintained. To not question media headlines or bellicose political rhetoric aimed at stirring domestic passions, not only discredits the work that goes into negotiating the complexities of a warming Arctic, but it is also misleading, if not detrimental to future relations.
These recent events in December 2013 suggest that the Arctic will be swept up in a vortex of militarization and territorial disputes, in a rush for Arctic riches and shipping opportunities.
This hawkish posturing, however, is not representative of 21st century Arctic relations, and could, in fact, contribute to a decline in ongoing regional cooperation, should it create an atmosphere of mistrust. Indeed, the U.S. Department of Defense (DoD) 2013 Arctic Strategy makes a compelling argument: “Political rhetoric and press reporting about boundary disputes and competition for resources may inflame regional tension.” Further, the policy report states, “Efforts to manage disagreements diplomatically may be hindered if the public narrative becomes one of rivalry and conflict.” In what could be seen as a highly unusual policy statement, the DoD takes a clear position on the adverse effects of bellicose or misinformed communication to redirect Arctic discourse toward a more accurate appraisal of the persistent multinational commitment to cooperation.
So, with over 300 in attendance from over 40 nations, Hagel outlined the department’s Arctic strategy emphasizing President Obama’s fundamental goal to ensure that “the Arctic region is peaceful, stable, and free of conflict.” Hagel explained how the U.S. would strengthen its military-to-military ties between Arctic nations, specifically referencing Russia, lest minds drift to the “us versus them” mentality of the past century. Indeed, all Arctic nations share a common interest in coordinating military activities for numerous reasons brought on by increasing interest in the Arctic region from nations far and wide.
For example, even though we have seen a drastic loss of multi-year Arctic ice, this does not mean that conditions for maritime activity are any less treacherous. Indeed, increasing marine transit and a desire for exotic tourism will assuredly accelerate the necessity for multinational search and rescue missions. The significance of multi-state cooperation was well illustrated when a Russian research ship, the Akademik Shokalskiy, was stranded in Antarctic ice pack on December 24, 2013. China’s icebreaker, the Xue Long, or Snow Dragon, made the first attempted rescue. But at 6.5 nautical miles from the 74 passengers including scientists, crew, journalists, and tourists, the Xue Long was also stalled in an estimated 4 meters (13 feet) thick ice.
French and Australian icebreakers followed, both of which were unable to break through the heavy ice. The passengers were eventually airlifted by a Chinese helicopter and transferred to an Australian icebreaker. The U.S. icebreaker, the Polar Ice, was en route, when the Akademik Shokalskiy and the Xue Long finally broke free on January 8, 2014. This rescue mission alone took the efforts of four countries, countless personnel, and a yet to be calculated financial expenditures shared among nations that came to the rescue. Simply put, rescue missions in the Polar Regions are costly and require multinational cooperation.
Delineate the Outer Limit of the U.S. Extended Continental Shelf
Objective: Develop the U.S. submission in support of delineating the outer limit of the U.S. Extended Continental Shelf in the Arctic.
Next Steps: Continue to conduct activities in support of the United States’ Extended Continental Shelf (ECS) in the Arctic, including:
- Process and interpret the seismic data, refine the base of slope, and develop a geologic framework for the U.S. ECS in the Arctic Ocean and Bering Sea through 2015.
- Complete the analyses and documentation necessary to delineate the outer limits of the U.S. ECS in the Arctic Ocean and Bering Sea through 2016.
Measuring Progress: Progress toward delineation of the outer limit of the U.S. continental shelf in the Arctic will be measured by the completion of the U.S. Extended Continental Shelf Task Force analysis, preparation of the necessary documentation, and submission of a well-supported delineation of the U.S. Extended Continental Shelf in the Arctic and elsewhere in accordance with the Convention on the Law of the Sea.
Lead Agency: Department of State
Supporting Agencies: Department of Commerce (National Oceanic and Atmospheric Administration), Department of Defense, Department of Homeland Security, Department of the Interior (United States Geological Survey)
Accede to the Law of the Sea Convention
Objective: Continue to seek the Senate’s advice and consent to accede to the Law of the Sea Convention.
Next Steps: The Administration is committed, like the last three Administrations, to pursuing accession to the Convention on the Law of the Sea and will continue to place a priority on attaining Senate advice and consent to accession.
Measuring Progress: Progress will be measured by gaining Senate approval for the Law of the Sea Convention.
Lead Agency: Department of State
Supporting Agencies: Department of Commerce (National Oceanic and Atmospheric Administration), Department of Defense, Department of Homeland Security, Department of the Interior, Department of Transportation
Promote International Law and Freedom of the Seas
Objective: The United States will continue to promote freedom of the seas and global mobility of maritime and aviation interests for all nations in accordance with international law. The United States will promote and conduct such activities in the Arctic region as appropriate.
Next Steps: The United States will exercise internationally recognized navigation and overflight rights, including transit passage through international straits, innocent passage through territorial seas, and the conduct of routine operations on, over, and under foreign exclusive economic zones, as reflected in the Law of the Sea Convention. Toward this end, the U.S. Government will, as appropriate:
- Conduct routine Arctic maritime exercises, operations, and transits consistent with international law.
- Inform the Arctic Council, International Maritime Organization, tribal organizations, and other interested governments of U.S. activities conducted.
- Engage the private commercial shipping and aviation sectors and involve stakeholders and experts in academia and non-governmental organizations to promote the rights and responsibilities of freedom of navigation and overflight in the Arctic region.
- Promote the global mobility of vessels and aircraft throughout the Arctic region by developing strong relationships and engaging in dialogue with international partners, especially Arctic states.
- Continue to document U.S. diplomatic communications in the Digest of U.S. Practice in International Law published by the Department of State.
- Continue to document the Department of Defense report on fiscal year freedom of navigation operations and other related activities conducted by U.S. Armed Forces
- Continue to deliver strategic communications at appropriate opportunities to reflect U.S. objections to unlawful restrictions in the Arctic on the rights, freedoms, and uses of the sea and airspace recognized under international law.
- Continue to encourage excessive maritime claims to be rescinded or otherwise reformed to comply with international law.
Measuring Progress: Progress will be measured through the continued preservation of the freedoms of navigation and overflight and other rights and uses of the seas consistent with customary international law as reflected in the Law of the Sea Convention throughout the Arctic region, including the Northwest Passage and Northern Sea Route.
This Author contends that the ideal model for solving the issues of Arctic jurisdiction combines elements of the multilateral solutions detailed above. An excellent first step would be for the United States to ratify UNCLOS, so that it may participate in the CLCS claim system so as to strengthen the force of CLCS decisions under customary international law.133 Admittedly, with the partisan deadlock in the US legislature, it may be some time before the Americans join UNCLOS. Ultimately, this Author concludes that a realist approach (and courses of action in line with that approach) to the Arctic situation would be the best for the continued stability of the region. For example, military, political, and energy concerns have become so intertwined that it would be difficult to analyze each interest separately vis-a-vis the Arctic.134 Thus, public international law should make like the proverbial pedestrian in front of a bus and should just get out of the way. Otherwise, if public international law stands opposite practical considerations, then states will have to make a difficult and damaging choice between the health of the international legal system and their own important interests. But that does not mean that international law should be emasculated, the previous contention simply rejects a formalist insistence on the primacy of public international law, rather, compliance with international law is of equal concern to the Arctic states in line with other concerns like cheap energy, secure borders, and a healthy environment. Thus, international jurists should encourage cooperation and the implementation of legal mechanisms when it is appropriate.