Evidence: Recently Added
Neoconservatives have been concerned about rampant anti- Americanism in the United Nations system. And make no doubt about it: this particular treaty is part of the broader United Nations system. Are we creating yet another institution among many that are already there that will pursue essentially this kind of agenda? I think that we are. And I think that the international institutions this Convention establishes, such as the International Seabed Authority/ are going to be subject to the same procedural shenanigans that we see in the United Nations system regarding this anti-American agenda.
Thus, I think it was not coincidental that, prior to her passing, former U.N. Ambassador Jeane Kirkpatrick warned strongly against the United States rushing to join this particular Convention. I have no doubts that the U.N.'s systematic anti- Americanism will be pursued in the Law of the Sea institutions.
Once long neglected in terms of governance and management, the Arctic is slowly attracting greater attention as a region in need of an effective legal regime following the observed and potential the impact of climate change in recent time.29 Science has provided overwhelming evidence of human-influenced Arctic climate change and the likelihood that the pace of change is accelerating. Scientists predict that the Arctic may be ice-free for the first time in recorded history by as early as 2013.30
An ice-free Arctic has two important implications. First, it will expose vast regions of seabed that are rich in natural resources, making extraction of these resources possible. It is estimated that about 30 per cent of undiscovered gas and 13 per cent of undiscovered oil can be found in the marine areas north of the Arctic Circle.31 According to the USGS estimates, Arctic region has the hydrocarbon reserves of 90 billion barrels of oil, 1,669 trillion cubic feet of natural gas, and 44 billion barrels of natural gas liquids.32 Second, an ice-free Arctic will open previously impassable shipping lanes, thereby, improving prospects for Arctic navigation. The most promising route, historically known as the "Northwest Passage" may become navigable, which would reduce the length of the voyage between the Atlantic and Pacific oceans by an astonishing 9000 kilometers.33
This will result in two separate but related problems. First, the increased value of the region due to commercial exploration and trade will prompt Arctic nations to rush to establish their claim over the region. In fact, many Arctic countries, pursuant to Article 76 of the UNCLOS, are preparing to submit requests to the United Nations Commission on the Limits of the Continental Shelf to establish the outer limits of their continental shelves.34 This has caused the spectre of rising tension over yet to be asserted maritime claims over the vast Arctic Ocean. The tension been further acerbated by the feasibility to extract the potential hydrocarbon resources in the Arctic seabed. The receding polar ice cap has ignited the competition for the mineral rights in the Arctic seabed. The competition arises from the fact that the Arctic is ―the only place where a number of countries encircle an enclosed ocean,35 which gives numerous countries a valid claim for the same territory.36
Currently, as a non-party, the United States is not bound by the various provisions of the UNCLOS. At the same time, it also constrains the US to take full advantage of the many benefits it offers and to avoid the increasing costs of being a non-party. In contemporary world, it is implausible and unwise to think that the US can rely on military power alone to enforce its rights, particularly economic rights. Further, US certainly cannot have much influence over development of the law of the sea, stimulated by recent Arctic climate changes, by remaining outside the Convention. The evolving ocean order may be detrimental to the US national interests. By not acceding to the UNCLOS, the US is forgoing an opportunity to extend its sovereign rights over adjoining continental shelf, while simultaneously abdicating an opportunity to play a significant role in formal deliberations in the UNCLOS institutions. These shortcomings are further excerabated by the observed and potentail impacts of climate change in the Arctic region.
In this context, if we consider securing national interests as an outcome of the diplomatic bargain through inter-governmental negotiations concerning a particular ocean issue, then formal participation in the Convention processes is necessary for the US to remain at the helm of the ocean diplomacy in the contemporary world. Hence, it is imperative for the US to accede to the LOS convention, as it is a critical step toward advancing its national interests to ensure economic and strategic interests in ocean space. Imperatives of contemporary developments have given fresh impetus in the US in the direction of ratification of the LOS Convention. This section examines the factors and contemporary developments which have triggered the efforts to get consent of the US Senate to ratify LOS Convention.
Corollary to the non-accession to the LOS convention, the US can not access the institutions and mechanisms operating under the legal regime of the Convention. In the present scenario, therefore, the United States lacks legal basis to submit claims for enlarging its continental shelf beyond 200 NM to the CLCS Commission until it ratifies the LOS Convention. This in turn will hamper the US prospects of accessing the Arctic resources. In the meantime, however, state parties to the Convention - Canada, Denmark, Finland, Iceland, Norway, Sweden, and Russia - are all currently competing for valuable sea-bed overlapping rights in the Arctic and collecting evidences to make claim for an extended continental shelf (ECS) in the Arctic region. While the CLCS Commission may begin evaluating their respective ECS claims after receiving submissions at any time, the US continues to have its hands tied for its inability to use the CLCS procedure until it ratifies the LOS Convention. In sum, until the US becomes a party to the LOS Convention, it cannot access the CLCS Commission to gain legal rights to the Arctic seabed resources, nor can it enjoy voting privileges on the influential ISA Authority in influencing decision-making in deep-seabed mining in the ―Area‖ beyond the national jurisdiction.
As a natural corollary, the accession to the LOS Convention will provide the US access to the Convention‘s procedural mechanisms and institutions. This access is necessary for the US to secure and advance its national interests in the ocean space and play a meaningful role in the implementation of the law of the sea in the contemporary world. Firstly, accession to the LOS Convention will provide US a seat in the Commission on the Limits of the Continental Shelf (CLCS Commission), which in turn will help US to secure and advance its claim for the extended continental shelf beyond 200 nautical miles. Secondly, the US will have access to the International Sea-bed Authority (ISBA Authority) decision-making process as the member of its Council. This will help the US to protect its interests in the deep sea-bed mining activities. Thirdly, the US will get a seat in the judicial body - International Tribunal for the law of the Sea (ITLOS). This will facilitate US active participation in the judicial dispute settlement concerning ocean matters related to the interpretation or/and application of the LOS Convention. Broadly, the access to the UNCLOS-related institutions will provide an opportunity to the US to play an active role in the implementation and development of the law of the sea in the contemporary world.
America is the dominant hegemonic Power in Asia Pacific and possesses the dominant power projection38 capabilities in the region and seems committed to continue using them in a restrained manner.39 The littoral counties in the region, especially China, however, are developing the ability to deploy forces with the military capacity to threaten U.S. power projections. In particular, China‘s rapidly increasing economic power has caused widespread concern over China‘s ambitions to enhance ―blue water capability‖ for influence beyond its borders. These developments in China are of special concern to the US national interests, especially in the South-China Sea.40 In this regard, the recent statement by the Secretary of State Hillary Clinton41 in the ASEAN Regional Forum caused a lot of diplomatic tensions between the US and China. The said statement referred to the US interests in resolving territorial disputes off China‘s southern coast as ―a leading diplomatic priority,‖ thereby indicating the US intention to intercede in a region.
However, this is not the first time that the US has shown its interest in the maritime affairs in the Asia-pacific region, especially in South China Sea. The 2009 Impeccable incident is reflective of the US intensions to maintain its hegemony through power projections, even by circumventing the marine scientific research (MSR) provisions of the 1982 LOS Convention.
In the light of these observations, the US accession to the LOS Convention will have significant implications for the US interest in the South China Sea. Most notably, the LOS Convention would be applicable to the US completely as it does not allow making reservations at the time of accession. In addition, the US would be obliged to refrain from any acts that would defeat the object and purpose of the convention. Thus, by becoming a party to the Convention, the US would be constrained in the freedom to take inapt actions in the South China Sea without giving due considerations to its possible legal consequences. This may diminish the unchallenged naval power of the US in the Asia-Pacific.
Imperative impetus for this change in the US ocean policy comes from the ongoing climate change in the Arctic region and its potential implications for the US. Indeed, receding ice in the Arctic provides new opportunities to the US to secure its energy security and to gain economically by extracting hitherto inaccessible offshore Arctic resources and utilizing navigable Northwest Arctic Passage for commercial shipping. However, its legal status as a non-Party to the LOS Convention has kept the US ―hobbled on the Arctic‘s geopolitical sidelines‖ and acts as a stumbling block in its active participation in important international policymaking bodies- CLCS and ISBA. The US has no say in the CLCS commission with the authority to validate its national claims for extended continental shelf, which may adverserly affect the US Arctic interests. Further, non-participation in the ISBA authority may also marginalise the US interests in the deep seabed mining in the Area, beyond national jurisdiction. All these factors have point out the need for a change in the US ocean policy in recent time. These imperatives emphasize on the need to accede to the LOS Convention to advance US economic and strategic interests in the contemporary world.
Thus it was striking to hear a Chinese military officer reveal in an open discussion at this conference on Saturday that China had “thought of reciprocating” by “sending ships and planes to the US EEZ”. He then went further and announced that China had in fact done so “a few times”, although not on a daily basis (unlike the U.S. presence off China).
This is big news, as it is the first time China has confirmed what the Pentagon claimed last month in a low-key way in its annual report on Chinese military power. Buried on page 39 was the following gem:
“the PLA Navy has begun to conduct military activities within the Exclusive Economic Zones (EEZs) of other nations, without the permission of those coastal states. Of note, the United States has observed over the past year several instances of Chinese naval activities in the EEZs around Guam and Hawaii … While the United States considers the PLA Navy activities in its EEZ to be lawful, the activity undercuts China’s decades-old position that similar foreign military activities in China’s EEZ are unlawful.”
It certainly does. And the Commander of U.S. Pacific Command, Admiral Samuel Locklear, who was present when the Chinese officer made the revelation, has now confirmed to the media that such Chinese operations are occurring.
To be absolutely fair and accurate, the Chinese officer did not say explicitly whether the Chinese ships (and/or aircraft) were actively collecting intelligence, or whether they were just venturing near U.S. territory to make a political point. But it would seem odd that they would forgo the opportunity to conduct surveillance. And he did say “reciprocating”.
Why is this revelation so strategically and diplomatically important? A few reasons. First, it amounts to a sign of a Chinese realization that its interpretation of the UN Convention of the Law of the Sea is not in its long-term interests. That interpretation has been that freedom of navigation does not include the right to conduct surveillance in another country’s EEZ. Most countries, including the United States, consider such surveillance to be a peaceful activity allowed under the convention. (To be clear, all including America agree that peacetime intelligence-gathering within the 12 nautical mile limit of anyone else’s territorial waters is a big no-no.)
For all the changing conditions of the Arctic Ocean, one thing has not changed: the basic rules of international law relating to oceans. These laws apply to the Arctic in the same way that they apply to all the oceans. The international legal oceanic framework remains the 1982 United Nations Convention on the Law of the Sea (UNCLOS). The United States has not yet become party to it, despite the fact that we recognize its basic provisions as reflecting customary international law and follow them as a matter of long-standing policy.
Our status as a non-party to the UNCLOS, however, puts the United States at a disadvantage in a number of fundamental respects, most of which lie beyond the scope of this discussion. But our efforts to address the changing Arctic region bring at least two of those disadvantages into sharp focus.
First, we are the only Arctic nation that is not party to the UNCLOS. As our neighbors debate new ways to collaborate on Arctic Ocean issues, they necessarily will rely on the UNCLOS as the touchstone for their efforts. The United States will continue to take part in these initiatives, but our non-party status deprives us of the full range of influence we would otherwise enjoy in these discussions.
Second, the four other nations that border the central Arctic Ocean—Canada, Denmark/Greenland, Norway, and Russia—are advancing their claims to the continental shelf in the Arctic beyond 200 nautical miles from their coastal baselines. The UNCLOS not only establishes the criteria for claiming such areas of continental shelf, it also sets up a process to secure legal certainty and international recognition of the outer limits of those shelves. The United States also believes that it will be able to claim a significant portion of the Arctic Ocean seafloor as part of our continental shelf. But as a non-party to the UNCLOS, we place ourselves at a serious disadvantage in obtaining that legal certainty and international recognition.