Evidence: Recently Added
The Arctic Ocean is currently at the center of the outer continental shelf discus- sion. In fact, the Arctic is becoming the test bench for international politics. It is an ocean where oil and gas, minerals, fisheries, sea lanes, military interests, and gover- nance over ocean spaces meet in conflict among the five “frontline” states (USA, Canada, Denmark/Greenland, Norway, and Russia) while other neighboring entities like Iceland, the EU, Japan, and China express their Arctic interests as well.
All these happen at the same time when Arctic temperatures are rising twice as fast as in the rest of the world20 and climate change becomes incalculable. The warming temperatures break up polar ice, raise sea levels, erode coastlines at a remarkable speed,21 and potentially cause international conflicts as the Arctic becomes accessible at least during the summer. The USA, unlike the other Arctic states, is falling behind in this contest with little or no icebreaking and naval capacities in the region. Moreover, since the USA has not ratified the Law of the Sea Convention, it is neither in a position to claim outer continental shelf areas nor has a say in the International Seabed Authority ISA which will be responsible for deep-sea mining in central parts of the Arctic. Denmark, on the other hand, is working on its “Arctic strategy” with an anticipated claim of outer continental shelves north of Greenland to include the pole, which will be formally presented to the CLCS before 2014.
Canals, tunnels, and bridges over straits, submarine pipelines for oil and gas,28 as well as cables serve communication and transport purposes in the widest sense. These types of marine infrastructure can easily suffer from natural disasters or become targets of terrorism.29 It may be recalled that millions of telephone, telex, TV, and data links are made across the world at every moment. They may travel on radio waves or via satellites, but the majority are transmitted by submarine cables,30 which form a network over the world's seabeds. Cables are special because they provide the privacy and security that radio and satellite lack. They are reliable and long lasting and have an excellent capacity and transmission quality. Cables are vitally important to the global economy, to national security, and to the safety of life.31 The modern version of these arteries of data flow is fiber-optic cables running through oceans, straits, and across land bridges. For example, the bulk of data flow between Europe and the Far East goes by fiber-optic cables that run from the Mediterranean through Egyptian territory into the Red Sea and the Gulf of Aden. A high concentration of cables can be found in the South China Sea, Red Sea, and Mediterranean Sea. Likewise, a growing number of subsea cables for the transport of electricity are or under construction or in the planning process. Building up redundencies or back-up solutions will add to the picture, create additional intrusion on the environment, and offer a target for terrorists. Thus, the protection of “critical” marine infrastructure is part of the agenda.
More importantly, however, most states lack the capacity to manage their fisheries resources in the EEZ. For example, the Food and Agriculture Organization (FAO) estimates that 1.6 million tons of fish are stolen every year from Indonesian waters, which includes 2.7 million square kilometers of EEZ.39 This is due to the limited number of patrol ships that Indonesia has available to patrol and safeguard its archipelagic waters and EEZ. Similarly, the archipelagic state of Cape Verde has an EEZ the size of land territory of France – 800,561 square kilometers – but only has five patrol boats and one aircraft to patrol these waters.40 This lack of capacity by many developing nations to patrol and regulate their waters encourages illegal and unregulat- ed fishing, which in turn, leads to conflict and over-exploitation, not peace- ful and controlled uses of the sea. There is also little evidence that the majority of coastal states are effec- tively managing fish stocks in their EEZs. On the contrary, a 2008 report prepared by OCEANA indicates that only “17% of the world’s fisheries should be considered capable of any growth in catch” and that over 80 % “cannot withstand increased fishing activity . . . .”41 Similar findings were published by the UN Food and Agriculture Organization in 2010:
The proportion of stocks estimated to be underexploited or moderately exploit- ed declined from 40 percent in the mid-1970s to 15 percent in 2008. In con- trast, the proportion of overexploited, depleted or recovering stocks increased from 10 percent in 1974 to 32 percent in 2008. . . . In 2008, 15 percent of the stock groups monitored by FAO were estimated to be underexploited (3 per- cent) or moderately exploited (12 percent) and, therefore, able to produce more than their current catches. This is the lowest percentage recorded since the mid- 1970s. Slightly more than half of the stocks (53 percent) were estimated to be fully exploited and, therefore, their current catches are at or close to their max- imum sustainable productions, with no room for further expansion. The remaining 32 percent were estimated to be either overexploited (28 percent), depleted (3 percent) or recovering from depletion (1 percent) and, thus, yield- ing less than their maximum potential production owing to excess fishing pres- sure in the past, with a need for rebuilding plans. This combined percentage is the highest in the time series. While the degree of uncertainty about these esti- mates may be great, the apparently increasing trend in the percentage of over- exploited, depleted and recovering stocks and the decreasing trend in underex- ploited and moderately exploited stocks do give cause for concern.42
Consequently, UNCLOS has had little or no impact on stabilizing the world’s fisheries and arguably has contributed to their continued decline and added the potential for conflict.
Moreover, if I were looking for other sections of the Convention to help support U.S. accession efforts, I certainly would not rely on the fisheries provisions of UNCLOS. As the authors know, UNLCOS Article 56 grants coastal states sovereign rights over the living and nonliving resources of the EEZ, where most fish stocks are located. Under Article 61, the coastal state has absolute authority to “determine the allowable catch of the living resources in its . . . [EEZ].” If the coastal state does not have the capacity to harvest the entire allowable catch, Article 62 provides that other states shall be granted access to the surplus. However, neither the decision to determine the allowable catch nor the allocation of the surplus is subject to compulso- ry dispute settlement.38 Then, of course, there is the problem of straddling fish stocks and highly migratory species that occur within the EEZs of more than one country, as well as anadromous stocks and catadromous species that migrate through more than one EEZ, that are not adequately regulated by UNCLOS Articles 63, 64, 66 and 67.
Like Borgerson and PickeringClimate Right for U.S. Joining Law of Sea Convention — Scott G. Borgerson and Ambassador Thomas R. Pickering. — Council on Foreign Relations — Dec 23, 2009 [ More ], Messrs. Cartner and Gold "Commentary in Reply to “Is it Time for the United States to Join the Law of the Sea Convention”." Journal of Maritime Law & Commerce. Vol. 42, No. 1 (January 2011): 49-70. [ More (6 quotes) ] argue that, “without ratification of UNCLOS, the US has even less maritime standing in the community of nations, and its contributions will rapidly be marginalized or seen as irrelevant.” U.S. Administrations have been making this same argument for the past 20 years, yet I see no evidence of lost U.S. standing in fora like the International Maritime Organization (IMO), where U.S. leadership remains strong. As discussed in my earlier article, the IMO, not the Meeting of States Parties to UNCLOS, will shape the law of the sea of the future. That is where the United States needs to maintain its focus and level of effort. Under the capable leadership of the U.S. Coast Guard, U.S. delegations have successfully adopted a series of new and amended IMO instruments that enhance maritime safety, maritime security and maritime trade. My only concern is the apparent shift in focus at the IMO from a maritime nation to a coastal nation perspective that fails to balance national security interests with environmental and homeland security interests. This change in focus has been driven, in part, by concerns over strengthening maritime homeland security following 9/11 and by the shift in ocean policy leadership in the United States from NSC to CEQ.37
In theory, I agree with Messrs. Cartner and Gold "Commentary in Reply to “Is it Time for the United States to Join the Law of the Sea Convention”." Journal of Maritime Law & Commerce. Vol. 42, No. 1 (January 2011): 49-70. [ More (6 quotes) ] that “customary law . . . is not as good as conventional law” because customary law is subject to change and written words of a treaty should provide more certainty. However, I do question their follow-on conclusions that customary law is “certainly not as efficient in resolving disputes between sovereigns for maintaining global order” and that UNCLOS, “being nearly universal, takes away a great deal of the uncertainty in the application of customary law for all cases.” Although I concur that UNCLOS was a great achievement and that the United States got much of what it wanted in the treaty text, like any other “framework” agreement, it is subject to widely varying interpretation or even misapplication by States Parties. As a result, UNCLOS has unfortunately not had a dispositive calming influence on dispute settlement or pre- vented the continued proliferation of excessive maritime claims.
Today, excessive maritime claims continue to proliferate, particularly in the area of straight baselines and coastal state jurisdiction in the EEZ. Although the international community has witnessed a decline in the num- ber of excessive territorial sea claims (only nine remain today) , there are still three States Parties to the Convention that continue to claim a territorial sea in excess of 12 nm, even though UNCLOS Article 3 specifically and clearly limits the breadth of the territorial sea to 12 nm.22 In addition, over 40 nations restrict the right of innocent passage for warships in one way or another, even though efforts during The Third United Nations Conference on the Law of the Sea (UNCLOS III) to provide coastal states such authority failed to achieve majority support. Furthermore, the plain language of Article 17 specifically states “ships of all States . . . enjoy the right of inno- cent passage.”23 Although all of these illegal claims have been the subject of diplomatic protests or operational challenges by the United States, U.S. accession to UNCLOS will not cause these nations to rollback these excessive claims.
However, my main purpose for focusing on national security interests was to highlight the fact that the constituency that needs to be convinced to change its position on U.S. accession to the Convention is focused solely on national security. The common thread throughout all of the 60-plus UNCLOS briefings I presented on the Hill was – what affect will accession have on our national security? We did not have to convince the shipping industry or the oil and gas industry or the environmentalists. Those groups had already expressed their support for the Convention. We did, however, have to convince conservative senators that U.S. accession would not harm U.S. national security. The same remains true today – supporters of the Convention must be prepared to demonstrate what new benefits the United States will acquire by joining the Convention that it already does not enjoy. Those benefits, however, are difficult to articulate since most of the impor- tant ones from a national security perspective – e.g., transit passage, archi- pelagic sea lanes passage, high seas freedoms of navigation and overflight and resource rights in the EEZ and continental shelf – are already guaranteed to the United States under customary international law. Therefore, while I agree with my critics that U.S. accession to UNCLOS will not have a negative effect on U.S. national security (i.e., coastal states will continue to make excessive maritime claims whether the United States is a party to the Convention or not), by the same token, failure to join the Convention will not necessarily undermine U.S. national security now or in the foreseeable future.
Of greatest concern, however, is the growing number of states that illegally claim the authority to restrict military activities out to 200 nm – 26 to be exact.26 These claims are not supported by a majority of states, the negotiating history of UNCLOS III or a plain reading of the Convention. These nations inaccurately and illegally cite various provisions of UNCLOS, such as the residual rights clause in Article 59 and the peaceful purposes provi- sions in Articles 88, 141 and 301, as their authority for their excessive claims. However, these provisions are entirely spurious and do not support restrictions on military activities in the EEZ.27 In fact, the plain reading and negotiating history of these provisions indicates the exact opposite conclusion. U.S. accession to the Convention isn’t going to change these nations’ self-serving and inaccurate views.
Shrinking ice caps, melting permafrost, and technological advances enable greater access to the region’s abundant oil and gas reserves, which include as much as one-fifth of the undiscovered petroleum on the planet. With longer ice-free periods now available to explore for hydrocarbons, a new scramble for oil and gas could occur especially if oil prices recover to levels above $100 per barrel. In July 2008, the U.S. Geological Survey (USGS) estimated that the Arctic comprises 30 percent of the world’s remaining natural gas resources, or 44 billion barrels, and 13 percent of untapped oil supplies, or 90 billion barrels. Nearly all (84 percent) of the oil and gas is expected to occur offshore, and most of the projected reserves are located in waters less than 500 meters deep and will likely fall within the uncontested jurisdiction of one or another Arctic costal state. “The extensive Arctic continental shelves may constitute the geographically largest unexplored prospec- tive area for petroleum remaining on Earth.”7 The Arctic already accounts for one-tenth of global conventional petroleum reserves, and the projections of the latest USGS study did not even ad- dress the potential for developing energy sources such as oil shale, gas hydrates, and coal-bed methane, all of which could be present. But with it comes the risk of increased pollution, pos- sible spills from oil and gas, and the threat of contaminating water sources during the extraction process.