Evidence: Recently Added
Those who support UNCLOS, in partic- ular the U.S. Navy, argue that it is essentially a deal: The U.S. gets valuable legal rights of navigation in return for ceding to the ISA some regulatory powers that, since the 1994 agreement, are economically modest and politically unthreatening.
An obvious retort to this is that the U.S. already enjoys navigation and other rights under customary international law and earlier conventions. We gain nothing new by signing the treaty. The Navy responds that we would be on stronger ground in assert- ing our rights against challenge if we were supported by ITLOS (the International Tribunal for the Law of the Sea) in Ham- burg. But signatories to UNCLOS are bound to respect our rights under customary law anyway. Small powers are unlikely to challenge those rights. If a great power were to do so, the U.S. Navy is the only force capable of enforcing them. And that is so whether or not we are signatories to UNCLOS.
In support of multilateral Arctic partnerships are a number of broad-based and disparate organizations and policies nonetheless unified in support of the issue, and additional support comes from consequential benefits inherent in UNCLOS accession. Overarching is National Security Presidential Directive (NSPD) 66, “Arctic Region Policy,” released in 2009. Among the directive’s policy statements is a robust admonishment for accession to UNCLOS:
Joining [the UNCLOS treaty] will serve the national security interests . . . secure U.S. sovereign rights over extensive maritime areas . . . promote U.S. interests in the environmental health of the oceans . . . give the United States a seat at the table when the rights that are vital to our interests are debated and interpreted . . . [and] achieve international recognition and legal certainty for our extended continental shelf.19
Furthermore, NSPD 66 persuasively promotes multinational partnership in the Arctic to address the myriad issues faced in the region.20 Likewise, the Department of Defense, as articulated in its 2010 Quadrennial Defense Review, strongly advocates accession to UNCLOS in order “to support cooperative engagement.”21 Also among the tenacious supporters of accession are the U.S. Navy, whose leadership stresses that UNCLOS will protect patrol rights in the Arctic, and a number of environmental groups who want to advocate on behalf of Arctic fauna and flora.22 In addition, the oil industry lobby representing Chevron, ExxonMobil, and ConocoPhillips asserts that oil and gas exploration cannot reasonably occur without the legal stability afforded in UNCLOS.23 In a consequential benefit of accession, the extended U.S. continental shelf claims could add 100,000 square miles of undersea territory in the Gulf of Mexico and on the East Coast plus another 200,000 square miles in the Arctic.24U.S. Resistance to Sea Treaty Thaws — Neil King Jr. — Wall Street Journal — Sep 22, 2007 [ More ] Accession acts to strengthen and extend Arctic jurisdiction, open additional hydrocarbon and mineral resource opportunities, add to the stability of the international Arctic framework, and boost the legal apparatus for curtailing maritime trafficking and piracy.25 The benefits appear to outweigh the costs as the United States is increasingly moving to a position of strategic disadvantage in shaping Arctic region policy outcomes by failing to ratify UNCLOS.26 U.S. Strategic Interests in the Arctic: An Assessment of Current Challenges and New Opportunities for Cooperation . Center for Strategic and International Studies: Washington, D.C., April 27, 2010 (28p). [ More (5 quotes) ]
Global climate change is bringing about epochal transformation in the Arctic region, most notably through the melting of the polar ice cap. The impact of these changes, and how the global community reacts, may very well be the most important and far-reaching body of issues humanity has yet faced in this new century. A number of nations bordering the Arctic have made broad strides toward exercising their perceived sovereign rights in the region, and all except the United States have acceded to the United Nations Convention on the Law of the Sea (UNCLOS), which provides an international legal basis for these rights and claims.1 Similarly, while most Arctic nations have been planning, preparing, and program- ming resources for many years in anticipation of the Arctic thaw, the United States has been slow to act on any of the substantive steps necessary for the exercise of sovereign rights or the preservation of vital national interests in the region.2
The United States must move outside the construct of unilateral action in order to preserve its sovereign rights in the Arctic, capitalize on the opportunities available, and safeguard vital national interests in the region. In today’s budget-constrained environment and as a Nation at war with higher resource priorities in Iraq and Afghanistan than in the Arctic, it is unrealistic to believe that any significant allocation will be programmed for addressing this issue.3 Since the United States is too far behind in actions necessary to preserve its critical interests as compared to the other Arctic countries, the Nation must take the lead to cultivate a new multilateral partnership paradigm in the region.
The example of China and Russia's flouting of the convention's norms also presents the possibility that the treaty could be renegotiated to become more favorable to those countries' interests. UNCLOS as currently written is extremely favorable to U.S. interests, codifying the rights of freedom of navigation and passage that are important to maintaining its global power status, according to Titley.
“The real strategic threat for us not being a [party to UNCLOS] is if anybody at some point wants to change the rules of the game … we're not going to have a seat at that table,” Titley said. UNCLOS “basically codifies up a world in which the U.S. is kind of the number one dog. And so now by not ratifying this, as the world changes, and maybe if that situation changes, we're not even going to be in the room when—if this ever gets looked at again. … It's frankly pretty hard to see that another [international legal] regime would be as friendly to U.S. interests as is UNCLOS. That's a real danger.”
Another key risk connected with the United States not being a party to the treaty is that the treaty itself is weakened by lack of U.S. participation, because it is important as a big coastal state and a major economy, according to Jensen.
Due to the significance placed on obtaining jurisdiction over the North Pole, and given recent violations of the norms of the Law of the Sea Convention, some experts see risks of noncompliance with any recommendations from the commission that would negate a country's submission.
One significant recent violation is Russia's refusal to participate in the dispute-resolution proceeding called by the Netherlands over Russia's arrest of environmental activists who disrupted the activities of a Gazprom drilling platform in the Pechora Sea and seizure of the Dutch-flagged ship Arctic Sunrise last year.
“That's a very clear disrespect for international law. You are a party to the Law of the Sea Convention, and thereby you are bound to the dispute-settlement procedure,” Molenaar said.
Another similar example is China's refusal to participate in a dispute-resolution procedure requested by the Philippines over an area in the South China Sea outside China's exclusive economic zone that China claims for itself.
Such disregard for an international treaty can have broad impacts on various multilateral bodies and negotiation processes and bring about wider distrust and noncompliance.
“The risk is disrespect for agreed multilateral procedures. There is a risk in the background that Russia or even Canada will not act in accordance with the recommendations of the [commission], and this fear I think is more justified because of this nonappearance in the Arctic Sunrise case, and maybe even the recent developments in Ukraine” where Russia is viewed as violating the borders of Ukraine's sovereign territory.
As Russia, Denmark and Canada vie to stake their claims, a complicating factor is that a fourth country, the United States, has conducted research on how far the continental shelf extends from Alaska toward the North Pole and could potentially stake its own claim. However, the U.S. cannot submit any of its evidence because it is not a party to the UN Convention on the Law of the Sea (UNCLOS).
Norway, a fifth country that could conceivably have a territorial claim to the North Pole, has said that it will not pursue any claim under UNCLOS.
Russian officials are making repeated statements about the government's intent to claim jurisdiction over the North Pole through a coming submission of evidence to the Commission on the Limits of the Continental Shelf under UNCLOS. The submission will be a continuation of one made to the commission in 2001, which the panel determined insufficient. Russia was directed to resubmit its evidence “within a reasonable time.”
Canada and Denmark likely won't be far behind, claiming in recent submissions to the commission that they each will soon submit evidence that their continental shelves extend to the North Pole.
Canada made a partial submission to the commission on Dec. 9, 2013, on delineating its outer continental shelf in the Atlantic Ocean. It did not include data about the North Pole, but specifically reserved Canada's right to make a submission of such evidence in the future.
In 1976 GAO was requested by several Committee Chairmen to independently report on the status of negotiations as they were deeply distrustful of the official delegation reports authored by the State Department. As a result, I attended many of the negotiating sessions in New York and Geneva as an observer attached to the US delegation. I joined the U.S. delegation in 1977 and reported regularly to Congress on the state of negotiations through 1982. I was present in New York when the Reagan Administration’s good faith attempt to make the Treaty acceptable was roundly rejected by a coalition of Developing and Communist nations.
Since that time I have closely tracked the accession process and the development of the International Seabed Authority. Having long since left the General Accounting Office and transferred to the Department of Defense I became deeply involved in the Export Licensing process. In this capacity I was assigned a case whereby the People’s Republic of China was using their status as a so-called “pioneer investor” in ocean mining to justify the acquisition of strategic/export-controlled technology under the guise of prospecting for manganese nodules in the mid-Pacific. Unfortunately, the level of technology they were attempting to acquire greatly exceeded the level of capability that either the United States or our industrialized allied used in undertaking such work. The quality of the side-scanning sonar, deep-ocean bathymetric equipment, cameras, lights, remotely operated vehicles, and associated submersible technology provided them the capability to locate, reach, and destroy, or salvage early-warning and intelligence sensors vital to our national security. Additionally, such technology also imparted an offensive capability to our chief potential military adversary by enabling them to map any portion of the ocean or continental shelves to determine submarine routing schemes or underwater bastions where missile-launching or intelligence gathering submarines may operate undetected just off the U.S. coast.
China’s global resource strategy has led the PRC to the far corners of the earth, from Venezuelan oil fields to energy-rich Siberia. Now, as a consequence of accelerating climate change and the melting of the polar ice cap, China is increasingly looking to the arctic Circle for new resource-extraction and maritime-shipping opportunities. Current estimates as to when the arctic could be seasonally ice-free have varied greatly from as early as summer 2013 to as late as 2040; in any case, the arctic is evidently thawing more rapidly than most climate models initially predicted.46 In august 2012, for example, the National Snow and Ice data Center observed that arctic sea-ice extent had reached the lowest level on record, prompting concerns about the exponential speed at which the polar ice is disappearing.47 Chinese leaders are keenly aware of this trend and are making calculated preparations to exploit an ice-free arctic.
Furthermore, the treaty's critics badly misunderstand history in trying to paint the measure as somehow un-American. The United States has long championed freedom of the seas. President Thomas Jefferson built a navy to resist the Barbary pirates when European governments paid tribute to safely transit the Mediterranean. The War of 1812 was fought largely over the right of U.S. merchant ships to ply the seas freely, engaging in nascent global trade. Freedom of the seas was a feature of Wilson's Fourteen Points in World War I and was one of the war aims included in the Atlantic Charter by Winston Churchill and Franklin D. Roosevelt during World War II.
During negotiations of the Law of the Sea Convention, U.S diplomats were successful in ensuring that these time-honored principles were incorporated into the treaty in 1982, advancing U.S. interests in naval power and fueling the trade globalization of the 1990s. This is a core U.S. national interest in the oceans, and the Law of the Sea locks in generous navigational provisions that apply throughout the globe -- both for naval vessels and merchant shipping.
Similarly, less friendly countries such as China, Iran, and North Korea have sought to impose control over the ocean out to 200 miles off their coastlines by establishing security zones. Both types of proposed coastal-state regulations place at risk U.S. economic prosperity and national security by attempting to close off to U.S. ships and aircraft vast swaths of ocean, allowing coastal states at their whim to deny use of the global commons. These proposed restrictions by coastal states attempt to diminish or impair the right of freedom of navigation enjoyed by mariners for two millennia.
All of the countries mentioned above already belong to or have signed the convention, but are trying to change it through reinterpreting its terms. China, for example, is a party to the Law of the Sea, but denies that foreign warships have the right to enjoy high-seas freedom and overflight in the East China Sea. Beijing is patiently but steadily pushing to change standard interpretations of international law. By declining to become a member of the treaty, the United States has so far ceded the opportunity to influence and shape international norms, thereby yielding to states trying to popularize their restrictive approach to navigational rights.
South Carolina Sen. Jim DeMint, when leading the opposition to the treaty as it was being debated in 2007, said We know from international groups like the U.N. that many signers of these agreements do not act in the best interest of the United States or the world. He is correct, of course, but the United States' failure to ratify only empowers these states to set maritime rules without a U.S. seat at the table. DeMint's argument is akin to refusing to engage in debate on the future direction of the U.S. Constitution because one's political opponents have already staked out objectionable positions.