Evidence: Recently Added
The principal argument in favor of ratification seems to rest on the assumption that the world needs a comprehensive treaty to clarify and unify the law of the sea; that the alternative is chaos. In my opinion, this argument for ratification is overstated. The legal result of not ratifying the UNCLOS is not chaos in the law of the sea; it is the continued development of that dynamic body of law. Indeed, in areas of changing values and technology our own common law works best without codification.
Sometimes certainty is the highest interest of law-makers. With regard to the law of the sea, however, the fate of the four United Nations Law of the Sea Conventions coming out of Geneva in 1958 is pertinent evidence that other factors that influence the behavior of states can be more important than certainty. The United States ratified all four of those Conventions in 1961 and first violated them when we extended our exclusive fisheries zones to twelve miles in 1966. If the law raises certainty to a higher position than is tolerable in light of those factors favoring change, change occurs nonetheless and the law is degraded.
In sum, the argument against ratification of the whole UNCLOS seems to be overwhelming, but for reasons that have not been fully argued in public. The deep sea-bed mining provisions seem almost irrelevant: the supposed virtues of a free exploitation approach are obviously impossible to implement; the supposed virtues of a cartelized control model of economic development are obviously overstated and, if the states members of the Authority really have an interest in mankind, it seems a safe bet that the United States can participate in modifications of the regime to better suit the needs of the world. Of the other provisions of UNCLOS, some might be useful to the United States and they can continue to be cited as persuasive of the law, even if not formally binding. But many, such as the innocent passage provision and the provisions relating to a special law of the sea tribunal, seem potentially pernicious. Since the UNCLOS must be accepted as a whole or rejected as a whole, rejection seems the wiser course.
Ratify and put into full force the UNCLOS Treaty. This is a key first step to provide the international legal baseline and credibility for further U.S. actions in the region. While not essential to partnership, accession nonetheless demonstrates U.S. will- ingness to operate in a cooperative rather than a unilateral manner within the international arena. Through UNCLOS, the United States will gain international recognition of exclusive rights over an additional 300,000 square miles of undersea territory along with the expected potential for lucrative hydrocarbon and mineral resources therein. Accession will also secure the United States a strong position to shape and influence the region for the preser- vation of its vital interests.
In defense and protection of the border and resource areas, Russia continues to bolster military presence and capability in the Arctic. In addition to the Northern Fleet, whose naval military capabilities run the full gamut of surface and subsurface operations, Moscow has created the Federal Security Service Coastal Border Guard.67 Additional activities in the border and coastal areas include development of control infrastructure and equipment upgrades for the border guard, implementation of an integrated oceanic monitoring system for surface vessels, and a number of equipment and weapons testing and deployment initiatives.68 Many of these initiatives demonstrate presence and resolve, such as the 2007 launch of cruise missiles over the Arctic, additional Northern Fleet exercises in 2008, and the resumption of Arctic aerial and surface patrols not seen since the end of the Cold War.69 While many of these actions may appear provocative, Russia has also asserted its commitment to working within the framework of international law, partici- pated actively in the Arctic Council and other international bodies, and expressed interest in partnership in the region, particularly in the area of SAR.70 In the aggregate, Russia emerges as among the most prepared of Arctic nations for the opportunities available and may well be poised to gain early regional commercial and military supremacy with the goal of similar successes in the international political arena.71 Russian commitment to mul- tilateral venues, along with the demonstrated attitudes of other Arctic nations, presents the opportunity for U.S. partnership in the region.
A cooperative approach among international partners is key to ensuring U.S. interests are met within the Arctic region. A multinational effort is essential to ensure both human safety and appropriate environmental stewardship. A unilateral U.S. approach is simply not feasible. However, as the world’s sole superpower and as a contiguous Arctic nation, it is imperative that the U.S. assumes an Arctic leadership role within the international community.
Perhaps the most important step for the U.S. is to ratify UNCLOS in order to establish the legitimacy of U.S. leadership among the other stakeholders who have interests in the Arctic. This would partner the United States with the seven other Arctic nations (Russia, Canada, Denmark, Finland, Sweden, Norway, and Iceland), along with six indigenous organizations that are permanent members of the Arctic Council.52 This multinational assembly meets semiannually and “provides the greatest potential for a comprehensive resolution of environmental and governance issues in the Arctic.”53 NSPD-66/HSPD-25 clearly acknowledges that the “Arctic Council has produced positive results for the United States by working within its limited mandate of environmental protection and sustainable development.”54 U.S. representation on the Arctic Council has slowly increased since its first meeting in 1996. In fact, in March 2010 Secretary of State Hillary Clinton met with her counterparts from Canada, Russia, Denmark, and Norway in Chelsea, Quebec, as part of the Arctic Ocean Foreign Ministers’ Meeting. This meeting affirmed the importance of the Arctic Council, its membership, and the need for “new thinking on economic development and environmental protection.”55 However, the Arctic Council is hindered by its “lack of regulatory authority and the mandate to enact or enforce cooperative security-driven initiatives.”56 Although very useful for “scientific assessments” and “policy-relevant knowledge”, the Council does not address military concerns.57
The U.S. Geological Survey released a report in 2008 that indicated approximately 13 percent of the world’s untapped oil reserves reside in the Arctic region. One-third of these reserves lie inside the U.S. Exclusive Economic Zone (EEZ) off the northern slope of Alaska. The report also estimated that approximately 30 percent of the world’s remaining natural gas reserves reside within the Arctic region.19 In recent years, icecap melting, along with advances in technology, has rendered retrieval of natural resources in the Arctic both feasible and acceptable in terms of environmental risk.
Recent trends strongly indicate that human activity in the Arctic region will continue to increase for the foreseeable future. This raises certain national and global security concerns. UNCLOS represents the international consensus on rules governing the use of the planet’s oceans. This treaty was developed between 1973 and 1982; it was implemented on 16 November 1994. It combined several treaties governing laws of the sea that were previously separate. So, UNCLOS is a comprehensive treaty that codifies international law for the vast global commons of the world’s oceans, which make up nearly three-quarters of the earth’s surface. Notably, UNCLOS is an internationally accepted — and therefore a legitimate — means of defining sovereignty over the world’s oceans. It is particularly important in the Arctic, where several nations — including the United States — have conflicting claims. Articles within UNCLOS offera framework for a peaceful resolution of sovereignty disputes. UNCLOS clearly specifies state and international rights as they pertain to the world’s oceans.
Inevitably, American ratification will be a major step towards the one- worlders’ agenda of global, supranational government. One prominent Transnationalist, Arvid Pardo, the former Maltan Ambassador to the UN who is credited with coining LOST’s leitmotif phrase “the common heritage of mankind,” has said that American acceptance of LOST “however qualified, reluctant, or defective, would validate the global democratic approach to decision-making.” On that score, at least, Pardo is absolutely right.
Since LOST explicitly declares that a country’s continental shelf does not include underwater ridges, the Commission’s readiness once again take up the Russian case begs the question: As so often happens in UN agencies, will political considerations influence the outcome?
The Commission currently has only two Arctic members, Russia and Norway. A simple majority vote by non-Arctic states – perhaps engineered by Russian pressure and/or bribes – could result in decisions that would be binding on all member nations. If the United States were a state party to LOST, it would likely still be outvoted, yet be obliged to accept the Commission’s unsatisfactory dictates.
In this case, the consequences of such a decision would be preposterous – even absurd: Russia would have sole economic rights to the vast natural resources of the central Arctic Ocean. This would essentially give Russia a virtual monopoly over the North Pole region.
The Law of the Sea Treaty’s compulsory dispute resolution requirements and procedures are particularly problematic when taken together with a number of obligations the accord entails that are at odds with our military practices and national interests. These include commitments that:
- Reserve the oceans exclusively for “peaceful purposes” (Article 88): The United States routinely uses the world’s oceans for military purposes, including waging war against our enemies.
- Require states to refrain from “the threat or use of force against the territorial integrity or political independence of any state” (Article 301): As the world’s preeminent maritime nation, America must project power from the sea and does so with some regularity. Some would describe such power projection as contrary to “the territorial integrity or political independence” of states (most recently, for example, attacks from naval forces against the Taliban’s Afghanistan and Saddam Hussein’s Iraq).
- Proscribe the use of territorial waters to collect intelligence and conduct other operations (Article 19): For many decades, intelligence vital for American security has been collected on, below and above the oceans – including, in some cases, those considered to be “territorial waters.”
- Oblige submarines to travel on the surface and show their flags in territorial waters (Article 20). The effectiveness and perhaps the very survival of our submarines would be compromised were they to have to operate on the surface in close-in waters where they can only go with the greatest of stealth.
- Bar any maritime research except that conducted for peaceful purposes and require the coastal state’s permission for that performed in territorial waters (Article 240). Classified oceans research, including some conducted covertly, is indispensable to the U.S. Navy’s mission.
In statements in support of LOST, the United States military makes clear that it has no intention of ending such activities, and insists that it will not have to do so since “military activities” are exempted from the Treaty’s dispute resolution mechanisms. Unfortunately, this position both defies common sense and hard experience with international accords: These articles are wholly without effect if they do not apply to the military and it is predictable that America’s foes will use every opportunity afforded by LOST to ensure they do.