Evidence: Recently Added
There is also a significant problem with the generality of environmental protections in the UNCLOS. As mentioned previously, the treaty purports to regulate activity in all of the world’s oceans.136 It does not, therefore, deal explicitly with the very unique problems facing the Arctic environment.137 Unless the international community recognizes the region’s special needs, its natural environment will continue to worsen and become even more difficult to restore.
Yet history has repeatedly and definitively debunked the notion that recognition of U.S. ECS claims is contingent on U.S. membership in UNCLOS or on the approval of an international commission. To the contrary, through bilateral treaties with the Cook Islands, Cuba, Mexico, Russia, the united Kingdom, and Venezuela, the United States has successfully established its various maritime boundaries and the limits of its continental shelf and ECS.
The United States has also acted unilaterally through presidential proclamations and acts of Congress to set its maritime boundaries and lay claim to the natural resources within its maritime zones and continental shelf:
- In 1945, President Harry Truman issued two proclamations. The first, the Policy of the United States with Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf, claimed jurisdiction and control over the natural resources of the U.S. continental shelf.27 Truman’s second proclamation established a conservation zone for U.S. fishery resources contiguous to the U.S. coast.28
- In 1953, Congress codified Truman’s continental shelf proclamation by enacting the Outer Continental Shelf Lands Act, which declared that “the subsoil and seabed of the outer Continental Shelf appertain to the United States and are subject to its jurisdiction, control, and power of disposition.”29
- In 1983, in the wake of his decision not to sign UNCLOS, President Reagan proclaimed the existence of “an exclusive economic Zone in which the United States will exercise sovereign rights in living and nonliving resources within 200 nautical miles of its coast.”30 In 1988, Reagan followed up his EEZ proclamation by extending the breadth of the U.S. territorial sea from 3 nm to 12 nm.31
- In 1999, building on Reagan’s maritime proclamations, President Bill Clinton extended the U.S. contiguous zone from 9 nm to 24 nm.32 No nation or group of nations, much less the “international community” as a whole, has objected to or otherwise challenged the unilateral proclamations by Presidents Truman, Reagan, and Clinton. No nation disputes that the United States has a 12 nm territorial sea, a 24 nm contiguous zone, a 200 nm EEZ, or jurisdiction and control over the natural resources of its continental shelf and ECS. In fact, foreign nations recognize and respect U.S. maritime claims and boundaries, and vice versa, as long as those claims and boundaries conform to widely accepted international law, including provisions of customary international law reflected in UNCLOS.
In the Arctic, much of the supposed distress voiced by UNCLOS proponents stems from Russia’s vast claim of Arctic ECS that it submitted to the CLCS in 2001. The proponents incorrectly imply that Russia’s claim will result in the loss of Arctic resources that belong to the United States. According to Senator Lisa Murkowski (R–AK), for example, the U.S. failure to accede to UNCLOS would cause “a negligent forfeiture of valuable oil, gas and mineral deposits.”35
But the United States has not and will not “forfeit” a drop of Arctic oil to Russia or any other nation. For one thing, Russia’s claimed ECS area does not overlap any part of the U.S. Arctic ECS. To the contrary, Russia’s claim respects a boundary that the United States and the uSSR negotiated in 1990—the “Baker– Shevardnadze line.”36
The Russian claim extends the Baker–Shevardnadze line from the Bering Strait all the way to the North Pole, likely resulting in an excessive ECS claim in the central Arctic. However, Russia’s potentially excessive claim is located to the north of the limits of the U.S. ECS area. While the Russian claim may overlap with Canada’s ECS claim, it does not overlap any U.S. ECS area.37
In short, there is no conflict between the United States and Russia regarding the division of Arctic resources, including hydrocarbons. even if there were a conflict, Russia’s claim cannot be approved by the CLCS and would not be recognized by the United States (or Canada). Both UNCLOS and the CLCS’s procedural rules prevent the commission from considering any ECS area where there are overlapping claims: “In cases where a land or maritime dispute exists, the Commission shall not consider and qualify a submission made by any of the States concerned in the dispute.”38
The United States may object to excessive ECS claims made by any member of UNCLOS even though the U.S. is not a party to the convention. Indeed, after Russia made its 2001 claim, the United States, Canada, Denmark, Japan, and Norway each filed objections with the CLCS. In June 2002, as a result of the objections, the CLCS recommended to Russia that it provide a “revised submission” on its Arctic ECS claim.39 Russia reportedly will make an amended submission to the CLCS at some point in the future.
The major remaining U.S. ECS boundary to be determined in the Arctic is shared by the United States and Canada. As was the case with Russia, the U.S. and Canada have approached the demarcation of this boundary cooperatively. The two nations have a mutual interest in determining the extent of their respective continental shelves and identifying their respective areas of ECS.
To that end, the U.S. and Canada have conducted a series of joint scientific operations in the Arctic to collect bathymetric and seismic data to map the continental shelf.40 These data will enable the United States and Canada to negotiate a bilateral treaty delimiting their respective continental shelves and areas of ECS in the Arctic Ocean in the same manner as the U.S. and Mexico did in the Gulf of Mexico. United States need not join the convention to demarcate areas of its Arctic EEZ and ECS, secure jurisdiction and control over these areas, and develop the hydrocarbon resources in these areas. Such demarcation has been and will continue to be conducted in cooperation with neighboring Arctic nations regardless of whether the U.S. is a UNCLOS member.
Nevertheless, some proponents of U.S. accession maintain that joining the convention would assist the United States in attaining its interests because it establishes a legal framework for virtually all maritime issues and codifies widely accepted international law. It is challenging to assess with any certainty the merits of such vague claims promising intangible benefits.
The intangible benefits, if any, that may or may not come from having a “seat at the table” at the UNCLOS annual meetings of states parties is by its nature difficult to prove or quantify in any meaningful way. The agenda of these conferences in New York is concerned with nonsubstantive matters— e.g., the nomination, election, and remuneration of representatives to the International Tribunal for the Law of the Sea and the CLCS, budgetary matters, and credentialing for conference attendees.66
No great debates are taking place at these annual meetings regarding maritime hydrocarbon resources, excessive maritime claims, proper and improper activities within the EEZ, commercial fishing, development of the continental shelf, or seemingly any other substantive matter dealing with the law of the sea in the Arctic or elsewhere.
Many UNCLOS proponents maintain that the United States would benefit from joining the convention because it could nominate a U.S. national to the CLCS. These proponents imply that a U.S. national on the CLCS will directly benefit the United States and help to advance its ECS claims. Secretary Clinton, for example, testified, “We need to be on the inside [of the CLCS] to protect and advance our interests.”67 Yet any U.S. national elected to the commission serves in his “personal capacity,” meaning that he cannot defend or otherwise represent the views or interests of the United States on any U.S. ECS claim.68 Additionally, the substantive analysis of any ECS claim made by the United States would be conducted by a seven-member subcommission on which the U.S. member may not sit.69
In 1994, more than 100 nations adopted a set of rules governing deep seabed mining. The 1994 agreement applies free market principles to deep seabed mining, establishing a mechanism for vesting title in minerals in the entity that recovers them from the ocean floor. The agreement establishes an International Seabed Authority (ISA) with responsibility for supervising this process. The ISA is an independent international organization— not a part of the United Nations.
It is governed by a Council (with principal executive authority) and an Assembly (which gives final approval to regulations and budgets). As a party to the Convention, the United States would be a permanent member of the Council and have the ability, under relevant voting rules, to block most substantive decisions of the Authority, including any decisions with financial or budgetary implications and any decisions to adopt rules, regulations, or procedures relating to the deep seabed mining regime.
The 1994 agreement also recognized the longstanding view that the deep ocean floor is part of the global commons and beyond the reach of national jurisdiction. The agreement addresses in full all concerns identified by President Reagan a decade earlier. Technology transfer requirements—a principal objection in 1982—were deleted from the agreement.
The 1994 agreement is a legally binding modification of Part XI the Law of the Sea Convention.
First, there is a risk that important provisions could be weakened by amendment, beginning in November 2004, when the treaty is open for amendment for the first time. Currently, for example, the Convention prohibits coastal states from denying transit rights to a vessel based upon its means of propulsion. Some states, however, may propose to amend this provision to allow exclusion of nuclear-powered vessels. Under the Convention, no amendment may be adopted unless the parties agree by consensus (or, if every effort to reach consensus failed, more than two-thirds of the parties present agree both on certain procedural matters and on the proposed amendment). As a party, the United States would have a much greater ability to defeat amendments that are not in the U.S. interest, by blocking consensus or voting against such amendments.
Second, by staying outside the Convention, the United States increases the risk of backsliding by nations that have put aside excessive maritime claims from years past. Pressures from coastal states to expand their maritime jurisdiction will not disappear in the years ahead—indeed such pressures will likely grow. Incremental unraveling of many gains under the Convention is more likely if the world’s leading maritime power remains a non-party.
Some opponents of ratification have objected to the Convention’s provisions concerning revenue sharing of proceeds from the outer continental shelf. Under the Convention, no payments are owed for the first five years of production (which are typically the most productive). Beginning in year six, payments equal to 1 percent of the value of production at the site, increasing 1 percent each year to a maximum of 7 percent, are owed to the International Seabed Authority.
Significantly, the U.S. oil and gas industry, which would likely make these payments, does not oppose the Convention’s revenue sharing provisions. After noting “the significant resource potential of the broad U.S. continental shelf,’’ Paul Kelly of Rowan Industries, representing the American Petroleum Institute and other major industry groups, told the Senate Foreign Relations Committee in October 2003 that “on balance the package contained in the Convention, including the modest revenue sharing provision, clearly serves U.S. interests.’’
The Law of the Sea Convention provides a comprehensive framework for international cooperation to protect the marine environment. It imposes minimum requirements—all of which are already being met by the United States—to protect and preserve the marine environment. Under the Convention, states are required to take measures to address pollution from vessels and landbased sources, to prevent the introduction of alien or invasive species, and to conserve and manage coastal fisheries.
The Convention also requires states to work together to protect the oceans. States are required to cooperate in the management of high seas fish stocks, as well as stocks that migrate between the high seas and exclusive economic zones, setting the stage for regional agreements essential to managing ocean fisheries. States are also required to work together to protect marine mammals, which are given special protections under the Convention.
The standards for environmental protection set forth in the Convention work strongly to the advantage of the United States, which has already met and in most cases significantly exceeded these standards but necessarily depends on actions by other nations to protect the marine environment.
In August 2007, shortly after sending the scien- tific expedition to the Arctic ridge, then Russian President Vladimir Putin ordered the resumption of regular air patrols over the Arctic Ocean. Strate- gic bombers including the turboprop Tu-95 (Bear), supersonic Tu-160 (Blackjack), and Tu-22M3 (Backfire) and the long-range anti-submarine war- fare patrol aircraft Tu-142 have flown patrols since then.43 According to the Russian Air Force, the Tu- 95 bombers refueled in-flight to extend their operational patrol area.44 Patrolling Russian bombers penetrated the 12-mile air defense identification zone surrounding Alaska 18 times during 2007.45 Since August 2007, the Russian Air Force has flown more than 90 missions over the Arctic, Atlantic, and Pacific Oceans.46
The Russian Navy is also expanding its presence in the Arctic for the first time since the end of the Cold War.47 Lieutenant General Vladimir Sha- manov, head of the Defense Ministry’s combat train- ing department, said that the Russian Navy is increasing the operational radius of the Northern Fleet’s submarines and that Russia’s military strategy might be reoriented to meet threats to the country’s interests in the Arctic, particularly with regard to its continental shelf. Shamanov said that “we have a number of highly-professional military units in the Leningrad, Siberian and Far Eastern military districts, which are specifically trained for combat in Arctic regions.”48
On July 14, 2008, the Russian Navy announced that its fleet has “resumed a warship presence in the Arctic.” These Arctic naval patrols include the area of the Spitsbergen archipelago that belongs to Norway, a NATO member. Russia refuses to recognize Norway’s right to a 200-nautical-mile exclusive economic zone around Spitsbergen. Russia deployed an anti-subma- rine warfare destroyer followed by a guided-missile cruiser armed with 16 long-range anti-ship cruise missiles designed to destroy aircraft carriers.49