Arctic

Additionally, the practice of States in a regional grouping, such as the Arctic Circle, can result in special customary law for all of the similarlysituated States, applicable only in that area.ⁿ³⁵³ Further jeopardizing American interests is that the doctrine of the continental shelf in particular has been considered "instant customary law,"ⁿ³⁵⁴ provided that the practice of States whose interests are affected is sufficiently extensive and uniform to indicate a legal obligation.ⁿ³⁵⁵ If the other Arctic nations continue to assert sovereign rights, uniformly based on an extended continental shelf, America may easily be hamstrung by provisions that it does not acknowledge but nonetheless prove binding. By way of example, if an American mining corporation were to form a consortium under a bilateral treaty to harvest sea floor resources with a State that was already a member of UNCLOS, and sought to mine in an area already recognized by UNCLOS as an extension of another Arctic State's continental shelf, or even merely outside its own EEZ, it would contravene the Convention and also subject both countries to international judicial proceedings.ⁿ³⁵⁶

It has been suggested that the universal right of navigation under UNCLOS ⁿ³⁵⁷ might be able to provide an alternate legal basis for claiming Arctic economic rights.ⁿ³⁵⁸ However, finessing this argument into a circumvention of the Convention's obligations and limits within the Arctic would be nothing more than unilateralism disguised as political legerdemain. The blithe dismissal of UNCLOS in favor of reliance on the Grotian conception of the freedom of the high seas in order to legitimize American rights over Arctic resources mistakenly ignores the global support and position of authority UNCLOS has achieved.

Rather, in all likelihood, America might be forced to accept the modus vivendi ⁿ³⁵⁹ in the Arctic that has developed over two decades of widespread UNCLOS observance. If the Senate continues to blockade attempts to ratify the treaty, other contingencies should be considered, such as negotiating alternate regimes or implementing UNCLOS via executive order.ⁿ³⁶⁰ Should several "uncooperative members of the Senate" force the United States to the sidelines, "the shortterm political costs of resubmitting UNCLOS [as an executive agreement would be justified] by America's need to be a full player in the remainder of this Arctic competition."

Ironically, the United States is currently preparing its own extended-continental-shelf claims in the Arctic even though it is not party to UNCLOS, which provides the mechanism for submitting such claims. American legal rationale and liabilities pertaining to this are published on the Extended Continental Shelf Project website of the U.S. government:

The United States is the only Arctic country, and indeed one of the few countries in the world, that has not yet ratified the LOS Convention. A non-party country has the same rights in its extended continental shelf as a country that has ratified the Convention, but without ratifying, the U.S. cannot submit its scientific findings to the CLCS, which means the U.S. will not have the opportunity to receive their recommendations and set ECS [extended continental shelf] limits based on them. There is an [sic] benefit to considering these recommendations: according to the LOS Convention, if a coastal country establishes its ECS limits “on the basis of” CLCS recommendations, those limits are “final and binding.”¹¹⁷

Accession to UNCLOS is the common recommendation of both the former George W. Bush and current Barack Obama administrations and is supported by a strong alliance of American military, environmental, shipping, energy, and other interests. In its recently issued “U.S. Navy Arctic Roadmap,” the U.S. Navy itself urges UNCLOS accession.¹¹⁸ Nowhere is the rationale for accession better spelled out than in the most recent statement of American Arctic policy, issued during the final days of the Bush administration:

The Senate should act favorably on U.S. accession to the U.N. Convention on the Law of the Sea promptly, to protect and advance U.S. interests, including with respect to the Arctic. Joining will serve the national security interests of the United States, including the maritime mobility of our Armed Forces worldwide. It will secure U.S. sovereign rights over extensive marine areas, including the valuable natural resources they contain. Accession will promote U.S. interests in the environmental health of the oceans. And it will give the United States a seat at the table when the rights that are vital to our interests are debated and interpreted.¹¹⁹

The good news is that it’s not too late to play catch-up. The first and most obvious place for the United States to start is to finally join the 164 other countries that have acceded to unclos. Ironically, Washing- ton had a hand in drafting the original treaty, but Senate Republicans, making misguided arguments about the supposed threat the treaty poses to U.S. sovereignty, have managed to block its ratification for decades. The result has been real harm to the national interest.

UNCLOS allows countries to claim exclusive jurisdiction over the por- tions of their continental shelves that extend beyond the 200-nautical- mile exclusive economic zones prescribed by the treaty. In the United States’ case, this means that the country would gain special rights over an extra 350,000 square miles of ocean—an area roughly half the size of the entire Louisiana Purchase. Because the country is not a party to unclos, however, its claims to the extended continental shelf in the Beaufort and Chukchi seas (and elsewhere) cannot be recognized by other states, and the lack of a clear legal title has discouraged private firms from exploring for oil and gas or mining the deep seabed. The failure to ratify unclos has also relegated the United States to the back row when it comes to establishing new rules for the Arctic. Just as traffic through the Bering Strait is growing, Washington lacks the best tool to influence regulations governing sea-lanes and protecting fisheries and sensitive habitats. The treaty also enshrines the international legal principle of freedom of navi- gation, which the U.S. Navy relies on to project power globally.

Highlighting the Arctic’s growing global importance, a number of countries with no geo- graphical links to the Arctic region but with important commercial and economic interests, such as China, South Korea, and the European Union, want to have a voice in future Arctic delibera- tions. France, Germany, Poland, Spain, the Netherlands, and the United Kingdom have been granted “permanent observer” status on the Arctic Council, and China is considered an “ad hoc observer.” Only Arctic Council member states have voting rights, and therefore “ad hoc observer” status does not differ from “permanent observer” with regard to the influence on the decision- making process in ministerial meetings. However, “ad hoc observer” status requires that nation to apply to be admitted to each Arctic Council meeting. The European Union’s application to become a “permanent observer” was blocked in 2009 by Arctic Council member Canada in response to the European Union’s ban on the importation of seal products. This example illustrates the chal- lenges of relying on the current structure of the Arctic Council for balanced and objective rulings, which often fall victim to paralyzing squabbles and the partial leveraging of national interests. On the other hand, the Arctic Five excludes nations and indigenous peoples with legitimate interests in the region, compromising its international credibility as a comprehensive governing arrange- ment. As rifts among international governance institutions continue to emerge, to the detriment of regional policy cohesiveness, the U.S. government must clarify how it wishes to primarily proceed with its multilateral Arctic engagement, either principally through the Arctic 5 ad hoc process or through the more institutionalized Arctic Council’s effort.