Evidence: Recently Added
What of the Arctic? A 2011 Bloomberg BusinessWeek editorial argued:
“The U.S. continental shelf off Alaska extends more than 600 miles into the Arctic Ocean. American companies have been reluctant to invest in exploiting this underwater terrain, which contains vast untapped reserves of oil and natural gas. That’s because the U.S., as a nonparticipant in the sea convention, has no standing to defend its ownership of any treasures that are found there.”32
Yet this is exactly the same case as in the Gulf of Mexico. Only three nations contest the ownership of resources in the extended North American continental shelf in the Arctic: the United States, Canada and Russia. American relations with Canada are friendly; therefore, a United States-Mexico-style treaty with Canada demarcating appropriate lines north of Alaska should be relatively easy to achieve. Russia might be perceived as a more intractable problem; but a 1990 treaty between the United States and the Soviet Union defines the maritime boundary between the two powers.33
Under the Treaty, Russia has claimed vast areas beneath the Arctic Ocean, but these claims in no way infringe upon the 1990 Treaty. Actually, they are a challenge to Canada rather than the United States. South of the Arctic Ocean, the treaty line protects U.S. claims to large areas of extended continental shelf in the Bering Sea and in the Pacific Ocean southwest of the Alaskan Aleutian Islands. Accordingly, there is no barrier (barring the low one of a necessity to negotiate a treaty with Canada) to the United States developing the extended continental shelf in the Arctic and its environs in the same way it has in the Western Gap.
Can Resources Be Developed without LOST? The first argument — that LOST will advance the development of the seabed — is outlined in a letter from the U.S. Chamber of Commerce, sent to the U.S. Senate in July 2012:
“America’s extended continental shelf, which in some areas extends hundreds of miles beyond U.S. territorial waters, contains abundant oil and natural gas reserves that can provide reliable, affordable energy to America’s homes and factories for decades to come — but only if the Senate acts to approve Law of the Sea. Likewise, by joining the Convention, U.S. companies would gain exclusive access to abundant rare earth mineral resources that are essential to high-tech manufacturing. China currently controls 90 percent of the world supply of rare earth minerals. Law of the Sea represents America’s best opportunity to take control of its own resource destiny. No U.S. company will make the multi-billion- dollar investments required to recover these resources without the legal certainty the Convention provides.”30
This argument is demonstrably false. U.S. companies are already successfully investing in an area of the extended continental shelf — the “western gap” in the Gulf of Mexico.31 There are two areas of submerged continental shelf in the Gulf, outside the Exclusive Economic Zones of both the United States and Mexico, known as the Western Gap and the Eastern Gap. The Eastern Gap shares a nautical boundary with Cuba, and its precise boundaries have not been negotiated. The boundaries of the Western Gap, however, were defined by a treaty signed with Mexico in June 2000.
This bilateral treaty has allowed both nations to proceed with confidence in developing the extended continental shelf in the Western Gap. No objections have been raised to the bilateral treaty and none are expected. As a result, the U.S. Bureau of Ocean Energy Management has sold development rights in the Western Gap in several auctions since the treaty was ratified in 2001.
There are also the costs from the redistribution of payments from the Authority to governments of developing countries. Many of these governments are less than savory, and traditional aid funds or revenues from existing natural resources are already being channeled into the pockets of the governing class and used to keep them in power. An additional revenue stream from the Authority would further cement their positions and worsen the condition of their peoples, further suppressing global growth. Add to this the aforementioned risk of allocating funds to separatist or terrorist organizations, which could turn the Authority into a backdoor source of funding for the arms trade. Thus, if the Authority works in the way it is constituted, it would represent a perverse cost to the poorest people in the world.
The Tribunal did decide one case, between Bangladesh and Myanmar, but that suit only arose due to confusion over the application of the Treaty in the first place, leading Eric Posner, the Kirkland and Ellis Professor of Law at the University of Chicago, and John Yoo, Professor of Law at the University of California Berkeley, to conclude:
“Early indicators suggest that the ITLOS will not be an effective international Tribunal... Because of the independence of the tribunal, states have little influence over how it resolves disputes. They cannot expect outcomes that are satisfactory to both parties, and thus they cannot expect widespread compliance. If compliance is likely to be weak, there is little point in using the Tribunal in the first place.”22
Another source of the Tribunal’s ineffectiveness arises from its very constitution. As Cato Institute Senior Fellow Doug Bandow points out:
“The new International Tribunal for the Law of the Sea is supposed to offer dispassionate adjudication of disputes. Yet membership is decided by quota: Each “geographical group” is to have at least three representatives. In its early days the Tribunal served as a dumping ground for frustrated LOST politicos such as Cameroon’s Paul Engo and Tanzania’s Joseph Warioba, both of whom once had hoped to become the Authority’s Secretary- General.”23
Ineffectiveness has an economic cost. States and companies will defer investment in disputed areas, as there is little hope for speedy resolution. Thus, as cases remain tied up in costly legal knots, areas become off-limits for development, and all economic benefit is lost.
The Treaty’s ineffectiveness was exemplified by events in the South China Sea in September 2012. China deployed six surveillance ships in response to the Japanese government’s attempt to buy the disputed Senkaku islands (which the Chinese call the Daioyus) from their current owner, a wealthy Japanese family.20 Both countries are signatories to LOST, which was supposed to settle disputes over maritime boundaries by creating the International Tribunal for the Law of the Sea.
The Tribunal has so far largely failed to settle such disputes. The Senkaku/Daioyus dispute is not the first case brought before the Tribunal, whose approach seems to be to let countries talk among themselves until they reach a solution. The court established to settle disputes has repeatedly abdicated its responsibility, while continuing to claim jurisdiction. Frustration with this process has led at least one party to return to gunboat diplomacy. Despite filing a lawsuit with the Tribunal, China appears to be dissatisfied with a legalistic approach. China Ministry of Foreign Affairs Spokesperson Hong Lei stated, “Isn’t it a weird thing in international affairs to submit a sovereign country’s territory to international arbitration? What a chaos the world will be in if this happens?”21
Virtually all the cases thus far have involved impounding fishing vessels, but the Tribunal has not actually finally settled any serious international dispute; thus, regardless of the merits of the case, China’s frustration is not surprising. Where it has acted, the Tribunal has essentially told the parties to sort the issues out amongst themselves — as in the Southern Bluefin Tuna case examined below.
The ecosystem of the Arctic is more susceptible to pollution than other parts of the world.28 There are several factors that contribute to the Arctic’s vulnerability:
- Low temperatures retard the decomposition of natural and manmade substances and the breakdown of pollutants;
- Regeneration is a protracted process because of the short growing season;
- Large concentrations of animals heighten vulnerability to catastrophes;
- Marine areas are particularly important in the Arctic in comparison with other regions of the globe;
- Climatic conditions are likely to produce a more pronounced carbon dioxide-induced warming trend in the Arctic than in temperate regions and are already leading to high concentrations of air pollutants that threaten vegetation as well as human and animal life; and
- Severe weather and ice dynamics make environmental protection and cleanup extremely difficult.29
The intricate interactions and complex food-webs within the Arctic ecosystem make these concerns even more pronounced.30 Simply put, the Arctic ecosystem is ―extremely complex.31 The increased navigation and resource exploration that is likely to occur raises several important concerns. Though there are problems common to both resource exploration and navigation, this Note will discuss the challenges separately.
Increases in resource exploration result in increased navigation.53 In addition to transportation tied directly to oil exploration, the Arctic will also become a favored route for merchants.54
There are numerous reasons to take advantage of Arctic sea routes. Not only are they much shorter than alternate shipping routes, but they also allow companies to avoid the costs associated with utilizing canals and the threats of pirates in certain parts of the world.55 Though the trip may be economically efficient, it is still not entirely void of danger. Scientists predict that icebergs and other hazards will continue to persist well into the future, thus increasing the danger to voyages through the Arctic region.56
Regardless of oil spills, the animals living in the area will face changed circumstances. Ocean-bearing ships leave a significant amount of pollution behind simply by operating in the ocean.57 In 1999, 12.5 percent of all oceanic pollution resulted from the transportation of petroleum.58 Noise pollution is also a serious concern among environmentalists in the region.59 If species cannot effectively communicate, scientists argue, their interactions will be limited, resulting in a less diverse and less resilient marine ecosystem.60 Policymakers should consider this harm in relation to the special state of the Arctic ecosystem, which tends to be more sensitive to these types of external, human-caused factors.
Reforming the treaty, however, would be difficult. The UNCLOS is not a region-specific treaty: over 150 nations are signatories, and 145 have ratified it.154 The UNCLOS initially took over a decade to acquire the required number of signatures to become effective.155 The dramatic reform required to make the UNCLOS an effective means to protect the Arctic would likely require member states to redraft large portions of the massive document. Nations around the world would subsequently have to acquiesce to the changes.156
If the international community makes the required changes to the UNCLOS, there is always the risk that current member states will rebuke the new treaty. If the reformed treaty fails to gain acceptance, not only would the Arctic remain unprotected, but so would the world’s other oceanic environments. This risk may not be worth its potential cost. Even if member states form a consensus of better protecting the Arctic environment, and more ratify the treaty, it still may prove to be ineffective. Many nations, including the United States, tend to ratify treaties only to claim reservations about provisions they do not like.157 This severely limits a treaty’s ability to create the kind of change necessary to protect the Arctic.
Conservative political factions are not in favor of working in cooperation with United Nations (parent organization of the International Maritime Organization (IMO) Furthermore, they do not want the United States to subject itself to international tribunals have effectively prevented U.S. accession to UNLCOS. But UNCLOS accession is supported from all the military service chiefs and the Chairmen of the Joint Chiefs, who have traditionally been highly selective with respect to treaties and how they potentially affect U.S. service members. For example, they expressed concern over the Rome Statute of the International Criminal Court (ICC) because it was believed to place U.S. personnel at risk for trial by an international tribunal. But this is not true for UNCLOS because the service chiefs believe UNCLOS will support, rather than thwart, U.S. operations.22 As the principal force behind the negotiation of UNCLOS in Montego Bay back in 1982, the treaty encompasses everything the U.S. military wants, and is not the “bogey man.”
The main economic prizes in the Arctic are oil and gas and mineral resources. The primary reserves belong to Russia, and the major exploration activity also is theirs. Recent estimates from the U.S. Geological Survey are that 30% of the remaining world reserves of natural gas and some 10% of the oil are in the Arctic. To date, unresolved issues involving demarcation of sea beds under the UNCLOS are not a major issue in the pace of energy development; rather, the key factors are costs of development and the price cycle of oil and gas. Offshore projects are the most costly and environmentally dangerous, and most of the known reserves of oil and gas are within national Exclusive Economic Zones (EEZs), which extend 200 nautical miles from the coastline. Thus, immediate prospects for interstate conflict over oil and gas reserves appear small.