Evidence: Recently Added
In order to have a legitimate say in the dividing of the newly available Arctic resources, one approach is that the United States should ratify the United Nations Convention on the Law of the Sea as soon as possible.56 Almost all opposition to the convention can be attributed to old-guard politics and irrational distrust of international organizations like the United Nations. According to J. D. Watkins and L. E. Panetta, “The Law of the Sea Treaty has a diverse and bipartisan group of experienced national backers, including military leaders, environmentalists, ocean industries, think tanks and political figures who recognize and support the pressing need to sign this treaty.”57 By ratifying the treaty, the United States would not only be able to further its own goals in relation to the Arctic Scramble, but also take on a leadership role in international negotiations. Failure to do so may result in a loss of claimable Arctic territory and the resultant strategic resources.
While the United States debates whether or not the convention would undermine U.S. sovereignty, Russia, Canada, and the other Arctic nations are doing all they can to prove that these newly available territories belong to them. By waiting to ratify the convention, the United States risks losing potential territory to countries that are already operating under the treaty, specifically Canada. For example, the Beaufort Sea includes an area where the EEZs of the United States and Canada overlap. Predictably, the two countries have differing opinions on how the area, which covers more than 7,000 square nautical miles, should be demarcated. Canada argues that the treaty signed between Russia and the United Kingdom in 1825, defining the boundary as following the 141° west meridian “as far as the frozen ocean,” should stand. The United States position is that since no maritime boundary was ever negotiated between Canada and the United States, the boundary should run along the median line between the two coastlines. This is the kind of territorial dispute the United States stands to lose by not ratifying the convention.
The United States is among the countries that believe they have a stake in this Arctic sweepstakes, though it alone is a non-signatory country to UNCLOS. In 2008, the U.S. government spent $5.6 million to prove that the United States’ continental shelf off Alaska extends beyond the 200-mile EEZ limit.51 This research, conducted by the U.S. Extended Continental Shelf Project (ECSP), a task force made up of eleven different agencies, has been ongoing since 2001 in anticipation of the ratification of the convention. In addition to sending cruises to map the arctic seafloor, the U.S. ECSP also conducts seafloor-mapping research off the Atlantic East Coast, the Gulf of Mexico, the Gulf of Alaska, in the Bering Sea, the Kingman Reef, and the Marianas Islands.
However, since the United States is not a signatory state to UNCLOS, it does not have access to the forum in which potential claims could be protected. Despite being deeply involved in the initial actions that led to the creation of UNCLOS, the United States has yet to ratify the treaty. President Reagan described the treaty as “socialism run amok” and a “third world giveaway.”52 Conservatives strongly dissent with the claim made by the convention that seabed wealth beyond territorial limits is the world’s common heritage. Yet there is significant area north of current holdings off the Alaskan North Slope that could be solidified, and claimed as within American territorial limits. This seems to be at the heart of the shift away from such a hardline Republican position: Other countries are extending the delineation of their territory, and less is being left as “common heritage."53
In August 2007, Russian scientists descended 4,261 meters (13,976 feet) beneath sea level at the North Pole, using two dual-manned submers- ibles, Mir-1 and Mir-2.18 The mission had two purposes: first, to collect samples of soil from the seabed directly beneath the North Pole, which is within the claims that Russia submitted to the commission and along the Lomonosov Ridge; and second, to place a one meter tall titanium Russian Federation flag, creating nationalist symbolism behind Russia’s claim and reinforcing its dedication to being a major power, both scientifically and economically, in the Arctic region.
Because of the suddenness of the claim by Russia, four other countries with a potential stake (Denmark, Norway, the United States, and Canada), and one without a stake (Japan), have submitted written responses to the Commission. Denmark and Canada have both refused to offer an opinion immediately after Russia’s submission, citing the necessity of additional and more specific data.19 The remaining countries, the United States, Norway, and Japan,20 have offered negative responses. Norway, having submitted a claim in November 2006 (beyond their 200 nautical mile EEZ) that does not overlap with Russia’s claim, was most concerned with overlapping claims along mutual borders, a “maritime dispute” that has not yet been settled and which could be problematic for both countries.21 The United States submitted a detailed response, using scientific data to support a position that neither the Alpha-Mendeleev or the Lomonosov Ridges are part of any state’s continental shelf, but are rather independent features consisting of magma or freestanding formations. The official U.S. position advised:
The integrity of the Convention and the process for establishing the outer limit of the continental shelf beyond 200 nautical miles ultimately depends on adherence to legal criteria and whether the geological criteria and interpretations applied are accepted as valid by the weight of informed scientific opinion. A broad scientific consensus of the relevant experts... is critical to the credibility of the Commission and the Convention.22
This statement suggests that the United States would like the convention and commission to look strongly and carefully at the evidence presented by Russia before determining any course of action. It also indicates that the United States is first deferring to the standards established in UNCLOS for dispute settlement, despite not being a signatory to the agreement.
While these powers give us a great deal of control over our interests in both environmental protection and the productive use of our continental shelf, in themselves they are insufficient to protect the full range of either our environmental interests or our energy and other interests. To protect those interests, we need to influence the laws and practices of foreign countries. It is for this reason that the Convention establishes a floor of generally accepted international standards that every coastal state must apply. Among the American interests that this protects are the following:
- Our neighbors have the same exclusive rights over the continental shelf off their coasts as we have off ours. Pollution from their activities can easily affect our waters, our resources, and our shores. This became abundantly clear a number of years ago when a pollution incident on the Mexican continental shelf gave rise to extensive public concerns in Texas and other Gulf states that our waters and coastline would be polluted. As a party to the Convention, we will have increased credibility and leverage to protect ourselves from such incidents in a way that avoids any appearance that we are bullying our neighbors.
- While every coastal state has the right to impose higher standards on its continental shelf activities, and ours are among the strongest in the world, the oil and gas industry is a global enterprise that can achieve economic efficiencies from uniform global standards regarding equipment and operations. Those efficiencies can of course help to keep down the cost of energy and free up additional capital for investment. As a party to the Convention, we will have increased credibility and leverage to promote stronger and more efficient international standards and their general acceptance.
- We live in an era of instant global news. A serious pollution catastrophe on the continental shelf anywhere in the world is likely to be reported, and its consequences televised, throughout the globe. This can stimulate public demands in many countries for new restrictions on continental shelf development. To the extent that this means that we all continue to learn from each others’ mistakes, this is of course a good thing. But to the extent that public excitement can lead to hasty and ill-considered actions either in the United States or in other countries, the economic consequences can be adverse, and the result may be an unnecessary increase in the price of energy. As a party to the Convention, we will have increased credibility and leverage to ensure the emergence and enforcement of international standards that reduce the likelihood of such events.
- Our interest in the health of the oceans throughout the world is no mere abstraction. They comprise over two-thirds of our world, and are essential to our well-being and the overall ecological balance of the planet. Marine living resources from the far reaches of the globe supply us and the rest of the world with food, with sources of recreation, with valuable scientific knowledge, and with the promise of new and more effective medicines. We have neither an environmental nor an economic interest in a race to the bottom in pollution regulation in other parts of the world that destroys marine life. As a party to the Convention, we will have increased credibility and leverage to exercise the kind of balanced global leadership in protecting the oceans that is incumbent upon the leading maritime power in the world and that the American people expect.
This is but one example of the benefits of the approach taken by the Convention to environmental protection. There are many others. The provisions that successfully accommodate the interests of states with respect to freedoms and rights of navigation and their interests with respect to prevention of pollution are obviously of great importance. The maintenance over time of a reasonable balance responsive to both navigation and environmental interests would unquestionably be advanced by U.S. participation in the Convention.
One of our most important objectives in seeking a universally ratified Law of the Sea Convention is to put a stop to the erosion of high seas freedoms in coastal areas that characterized the development of customary international law in the twentieth century. There is no reason to believe this erosion will not continue in the absence of a treaty restraint. In my opinion, the most plausible way to block the gradual erosion of high seas freedoms in the exclusive economic zone, and its eventual transformation into something much more like a territorial sea, is a widely ratified Law of the Sea Convention to which the United States is party, and with respect to which the voice and practice of the United States are prominent authoritative evidence of what the Convention means.
For operational planners, the essential question is not what we think our rights are, but what foreign governments think. We need the greatest possible influence over the perception of foreign governments regarding the source, legitimacy, and content of their obligations to respect our high seas freedoms, especially in their exclusive economic zones. We achieve that best by becoming party to the Convention. The alternatives are likely to be both less effective and more costly.
Mr. Chairman, the Law of the Sea Convention is a powerful and successful environmental treaty precisely because it seeks to achieve a reasonable balance between environmental and other interests. For many years, in the law of the sea negotiations and in other fora, the United States has tried to make clear that environmental treaties must be carefully framed to produce a reasonable accommodation of diverse interests. Some people have characterized this as opposition to environmental protection. Some of the extreme rhetoric used abroad has been particularly damaging to our reputation in important allied countries. The Senate now has a signal opportunity to set the record straight. Its approval of the Convention and the Implementing Agreement would suggest that there is every reason to ensure that the multilateral agenda is pursued carefully and that, as long as it may take, at the end of the day relevant interests are reasonably accommodated. It would announce that when that is done, America will stand second to none in joining to strengthen multilateralism, to strengthen the rule of law in international affairs, and to strengthen international protection of the environment.
Mr. Chairman, becoming party to the Convention will facilitate the prosecution of the war on terrorism in general, and the implementation of the President’s proliferation security initiative in particular. President Bush has emphasized that we cannot wait for the terrorists and their weapons to reach us. What is, or should be, clear from this is that we must exercise our global navigation and overflight rights and freedoms at sea anywhere in the world in order to reach our operational destinations. Not every government of the numerous countries past whose coasts our forces must travel to reach their destinations would necessarily wish to associate itself with every one of our operations. When we become party to the Convention, those governments will have an easier time explaining their acquiescence in our activities to domestic or foreign critics on the grounds of their treaty obligations to the United States, and we will have an easier time persuading them to do so without the need to expend our political or economic capital. Those who have expressed concerns in this respect seem to overlook the fact that the rules of high seas law set forth in the Law of the Sea Convention are copied from the 1958 High Seas Convention. Similarly, they overlook the fact that the rules of the Law of the Sea Convention regarding navigation and overflight and other high seas freedoms were expressly embraced by President Reagan in his 1983 statement on oceans policy, and constitute the bedrock of the legal foundation for our operations at sea around the world. The Administration has made it clear that it is able to and intends to carry out the proliferation security initiative in a manner consistent with high seas law as set forth in the Law of the Sea Convention, and that doing so is in our interests.
Critics seem to overlook the fact that Articles 17 to 32 of the Convention address only the right of innocent passage. The preamble makes clear what would be true in any event: “matters not regulated by this Convention continue to be governed by the rules and principles of general international law.” Suffice it to say that the matters not regulated by the Convention include the right of self-defense, the international law of armed conflict, and the complex (and for understandable reasons, rarely discussed) questions regarding the practice of states with regard to covert intelligence activities in each others’ territory.
Many other claims are simply misplaced. There is no transfer of sovereignty or wealth to the International Seabed Authority.
We have never claimed sovereignty over the seabeds beyond the continental shelf, and have consistently taken the position that any such claim would be unlawful. This is made abundantly clear by our own Deep Seabed Hard Minerals Act. We neither have nor assert jurisdiction over the activities of foreign states and their nationals on the deep seabeds.
Nothing that could rationally be called sovereignty was conferred on the Seabed Authority. The powers of the Seabed Authority are very carefully defined and circumscribed, and are controlled by a Council on which we will have a permanent seat and a veto over regulations. Private companies have the right to apply for and receive long-term exclusive rights to mine sites on a first-come, first-served basis and have legal title to the minerals they extract. All parties to the Convention are obliged to respect those mining rights and recognize that legal title.