Evidence: Recently Added
UNCLOS must be the legal bedrock of U.S. Arctic policy. UNCLOS is the framework of cooperation within the region. Other nations have rejected the push for an Arctic treaty, like the Antarctic Treaty, favoring instead the UNCLOS structure.245 By ratifying UNCLOS, the U.S. will advance a “remarkable treaty that expands U.S. sovereign rights, powerfully serves U.S. needs for the Navy and the Coast Guard, and provides American industry with the security necessary to generate jobs and growth.”246 By joining the UNCLOS alliance, the U.S. will be better able to settle maritime claims and disputes between other Arctic nations on issues such as outer continental shelf and maritime boundary line issues. The U.S. will also be in a better position to challenge the jurisdictional claims of both Russia (Northern Sea Route) and Canada (Northwest Passage). Only through UNCLOS can the U.S. make rightful claim to the Extended Continental Shelf and the natural resources within it. Implementation requires Congressional action and pressure by the Administration to get UNCLOS to a vote in the Senate.
Currently, the State Department's suggestion to the competing claims in the South China Sea is for all of the nations to follow UNCLOS.230 It is hypocritical for the United States to encourage another country to follow UNCLOS without actually acceding to it herself.
Further, China is less likely to listen to the United States from a "position of weakness."231 According to one commentator, conversations between the United States and China regarding foreign military activity in China's EEZ currently look like this:
Chinese official: Your navy ships have no right to be in our exclusive economic zone without our permission.
American official: Yes they do. The U.N. Law of the Sea Convention, which reflects customary international law, provides other states have freedom of navigation in exclusive economic zones.
Chinese official: You are not a party to convention, so it doesn't matter what it says-you have no standing to make that argument.232
If the United States acceded to UNCLOS, then China's response could no longer be, "You are not a party to the convention." Admiral Locklear, the U.S. Navy Commander in the U.S. Pacific Command, has mentioned that in the South China Sea, where "competing claims and counter claims in the maritime domain are becoming more prominent . .. the effectiveness of the U.S. message is somewhat less credible than it might otherwise be, due to the fact that we are not a party to the convention."233 The United States would finally have standing to make the argument that China needs to follow UNCLOS.
For example, the Arctic is a large area where multiple countries currently assert their jurisdiction. Countries have begun their expansion due to the effects of global warming.132 Because of rising ocean temperatures, ice caps have melted, causing areas that were once covered by ice to be accessible by ships.133 Countries have begun experimenting with new shipping routes and are actively searching for natural resources in the region.134 The search for natural resources has only just begun, as the resources are now accessible in the water.135 The ice caps that once served as a difficult obstacle to bypass are gradually disappearing, making access to the region much easier.
In particular, the United States has a large extended continental shelf in the Arctic, full of these untapped resources.136 The United States would be in a better position to argue disputes, such as one with Canada concerning the emerging neutral territory, if it acceded to UNCLOS.137 As Secretary Panetta noted:
Joining the Convention would maximize international recognition and acceptance of our substantial extended continental shelf claims in the Arctic. As we are the only Arctic nation that is not a party to the Convention, we are at a serious disadvantage in this respect. Accession would also secure our navigation and over-flight rights throughout the Arctic, and strengthen our arguments for freedom of navigation through the Northwest Passage and Northern Sea Route.138
Acceding to UNCLOS would help the United States solidify security over its jurisdiction in the Arctic, by providing both new trade routes and opportunities for deep seabed mining and the legal framework to support these activities.
The United States needs to invest in off-shore drilling for its national defense: "The U.S. requires an incredible number of military products for which rare earth minerals [which are found in abundance in the seabed] are essential.”116The Case for Ratification of the Law of the Sea Treaty — Andrew Langer. — Real Clear Politics — Nov 28, 2012 [ More ] In the past, military products were manufactured in the United States.117The Case for Ratification of the Law of the Sea Treaty — Andrew Langer. — Real Clear Politics — Nov 28, 2012 [ More ] Today, a "tremendous number of our bullets are manufactured in China ... meaning that if we find ourselves cross-wise with the Chinese, they can cut off our supply of bullets.118The Case for Ratification of the Law of the Sea Treaty — Andrew Langer. — Real Clear Politics — Nov 28, 2012 [ More ] It is a matter of national security that the United States be self-reliant on ammunition for its weapons."119The Case for Ratification of the Law of the Sea Treaty — Andrew Langer. — Real Clear Politics — Nov 28, 2012 [ More ] The United States needs to accede to UNCLOS to give companies the security to invest in offshore drilling, in order to be able to manufacture bullets independently from its own supply of rare minerals.120The Case for Ratification of the Law of the Sea Treaty — Andrew Langer. — Real Clear Politics — Nov 28, 2012 [ More ]
First, without the protection now guaranteed by UNCLOS, U.S. companies are not likely to invest in deep seabed mining.109Almost Everyone Agrees: The U.S. Should Ratify the Law of the Sea Treaty — Stewart M. Patrick. — The Atlantic — Jun 10, 2012 [ More ] At a hearing before the Senate Foreign Relations Committee, Jay Timmons, President and CEO of the National Association of Manufacturers, spoke on manufacturers' behalf and expressed the hesitancy to invest: "[t]he development of deep seabed claims is incredibly expensive. Companies in the U.S. are reluctant to invest heavily in deep seabed mining because of the risk that their activities would not withstand a legal challenge since the U.S. is not a party to the Convention."110"Statement of Jay Timmons: The Law of the Sea Convention: Perspectives from Business and Industry (June 28, 2012) ." Testimony before the Senate Foreign Relations Committee, June 28, 2012. [ More (5 quotes) ] For instance, the Pacific Ocean contains a large supply of nodules, rock-like substances that contain minerals such as nickel, copper, and cobalt.111Mining the Seafloor for Rare-Earth Minerals — William J. Broad. — New York Times — Nov 09, 2010 [ More ] There is currently no cost-effective way to remove these nodules from the ocean floor.112Mining the Seafloor for Rare-Earth Minerals — William J. Broad. — New York Times — Nov 09, 2010 [ More ] It is possible that developing a procedure to extract the metal from the nodules will be the most expensive part of the process."113Mining the Seafloor for Rare-Earth Minerals — William J. Broad. — New York Times — Nov 09, 2010 [ More ] Further, methane hydrates114 are another potentially enormous alternative energy source found in the ocean with extraction technology in its infancy.115 Unless the United States accedes to UNCLOS, U.S. companies will be less likely to invest in deep seabed mining of the nodules and exploitation of methane hydrates, leaving untouched great resources that would add much revenue to the U.S. Treasury.
Global warming is most dramatic in the Arctic. n10 In Alaska and western Canada, average winter temperatures have increased by as much as seven degrees Fahrenheit in the past 60 years.n11 Scientists agree that atmospheric warming will continue for years to come, and that this warming will significantly affect ice coverage in the Arctic. Many experts believe the particularly sharp increase in warming and melting throughout the last few decades can be attributed to both human and natural causes.n12 Because ice and snow are white, they have what is known as a "high albedo" and reflect most solar energy.n13 Albedo is a measure of how strongly an object reflects light from sources such as the sun. Water is darker and thus has a "low albedo" that absorbs most solar radiation. This creates a condition known as a "positive feedback loop" and, as a consequence, the Arctic region essentially amplifies any sort of warming trend.n14 The ocean exposed by melting ice soaks up more heat, which melts more ice and exposes more sea.n15 In the most extreme scenario, the positive feedback loop could cause extreme deterioration of Arctic sea ice, leaving the Arctic Ocean more like the Baltic Sea, covered by only a thin layer of seasonal ice in the winter.n16 At the current pace of retreat, transArctic voyages could be possible within the next five to ten years, but it remains extremely difficult to make an accurate prediction.n17
This paper began with an explanation of climate change and Arctic ice melt because predictions about future developments in the region rely on a basic understanding of these forces. As the ice melts, the Northwest Passage and the Northern Sea Route will become viable routes for summer shipping opening the region to a new reality. Merchants as well as politicians are calculating the dangers as well as the potential cost reductions associated with northern shipping routes. As the technology and infrastructure develop in the Arctic, it may become possible to utilize the region's rich natural resources. It is this prospect that has generated the most excitement among Arctic nations and precipitates the need for an effective legal regime in the area. It is my belief that UNCLOS and the Commission on Continental Shelves can provide the legal mechanisms necessary to delineate sovereignty over the continental shelves and ownership of the resources that may be discovered there. UNCLOS will inform the debates about the Northwest Passage; implicating the future of international trade. Finally, any dispute resolution in the Arctic would likely either involve a UNCLOS body, such as the International Tribunal for the Law of the Sea, or an application of UNCLOS principles. The United States' nonratification of the Convention acts as a major roadblock to advancing its national interests and settling the controversies in the region.
While it is probably already too late to prevent the Arctic ice melt, it is not too late to effectively resolve the sovereignty issues the melt will create. Thus far, the United States has not taken a significant role in the conflict or its resolution, but this type of ambivalence cannot continue as disputes escalate. Many suggest the United States join and support multilateral efforts that have already been established. Dispute resolution will be certainly be complicated and controversial; therefore, the full participation and engagement of all Arctic nations will be necessary. A geographical transformation of this magnitude has never occurred in the course of modern human history, and never has a physical change in landscape freed so many natural resources or created such new potential for trade. Therefore, it is essential that an adequate framework be developed to deal with these radical changes, and it is obvious that the framework needs not only the cooperation, but also the leadership of the United States.
Can UNCLOS be considered a powerful international agreement if the United States has not ratified it? Legitimacy relies on the internalization of external standards to substantiate the belief by an actor that a rule or institution ought to be obeyed. In the international sphere, very few laws or organizations have obtained recognition and approval of all countries. Because so few bodies govern the relations between states, any breach to the legitimacy of those bodies is clearly significant. Despite the destabilizing effect of the United States' nonratification of the UNCLOS, 157 countries and the European Community have joined in the Convention.n170 Moreover, in many areas, UNCLOS codifies preexisting customary international law of the sea that the United States already recognizes.n171 Therefore, while nonratification may weaken the UNCLOS, at the moment, it appears the rest of the world accepts the Convention as legitimate. UNCLOS will play an essential role in resolving disagreements in the Arctic, and it is critical for the United States ratify UNCLOS in the very near future.
However, even if the United States decides to ratify the treaty, there is still an inherent structural problem that may prevent the UNCLOS from solving disputes of any magnitude. This structural problems is that nations may opt-out of the UNCLOS dispute resolution procedures.134 In fact, every Arctic nation except Norway has chosen this method to avoid the binding language of the UNCLOS.135 The treaty’s substance hardly matters if there is no way to enforce its provisions.