The renegotiated International Seabed Authority, established under the treaty, provides property rights for U.S. firms to develop deep-sea mining sites that require security of tenure before they can justify the large investments required. Further, the treaty grants the U.S. the only permanent veto as to how the modest royalties, collected in return for secure property rights, are to be distributed to state parties.

Most troubling, when asked by the chairman how he would provide security of tenure sought by U.S. firms, Mr. Rumsfeld suggested that they should operate through joint ventures with other nations. His answer, implicitly understanding that U.S. nonadherence can in no way alter the international regime now in force for 161 countries, and that our firms would still operate under the treaty regime, needlessly throws away U.S. jobs, Treasury tax receipts, and critical U.S. access to strategic minerals. It would also mean no U.S. veto over any distribution of revenues, amendments to Part XI, or rules and regulations for mining.

The treaty provides property rights for miners in an area of the ocean not under the sovereignty of any nation. Absent U.S. adherence, U.S. firms cannot mine the deep seabed—as they will not have the security of tenure necessary to expend the $2 billion to $3 billion for a deep-seabed mining operation. These operations are of utmost importance for the U.S.—at stake is U.S. access to strategic minerals of copper, nickel, cobalt, manganese and rare earths worth about $1 trillion.

The Western Gap agreement has clear implications for the Arctic, where the United States shares a potential extended continental shelf with both Russia and Canada. UNCLOS opponents suggest that questions regarding international legal title to the U.S. potential extended continental shelf in the Arctic will be resolved conclusively when the United States enters bilateral agreements with Russian and Canada respectively.¹⁵⁶ As simple and therefore attractive as this position may be, it begs several questions.

Under what legal authority would the Arctic neighbors have the right to divide and claim for themselves an area lying, at least in theory, beyond their respective national jurisdictions? Even assuming a legitimate legal basis to claim their extended continental shelves and delimit them bilaterally, what basis would the states have for desiring to and concluding their agreements outside the UNCLOS framework, including ignoring Article 82 royalty payments? Finally, even if Russia and Canada— both UNCLOS member states—choose to comply with UNCLOS on their respective sides of delimited shelves, might they object to the United States not doing so on its side, and, if so, would they pursue their objections? And how might the outer limits of the U.S. extended continental shelf in the Arctic be determined given the geographic differences from the Western Gap situation where there were only two geographically opposite states with no third state or area interests involved?

The simple answer is that only by acceding to the convention can the United States obtain its full continental shelf rights in the Arctic.

Problematically, despite the increasingly obvious nature of the Arctic jurisdiction quandary, there exists a fair degree of disagreement on how to view Arctic both within the channels of government and academia.⁹⁸ These fundamental differences of opinion doom a potential bilateral solution, because a treaty between one or more states would necessarily require disambiguation and a clarification on where each party stands.⁹⁹ At a basic level, bilateral negotiations and a treaty mechanism will fail for three primary reasons. First, there is simply too much at stake in terms of both economic benefit and environmental risk: no state wants to assume liability for the wide range of environmental catastrophes that may befall energy developers,¹⁰⁰ nor does any state want to negotiate away a potential energy windfall either.¹⁰¹ Thus, given the great uncertainties of the Arctic, there is little incentive for states to constrain their EEZ claims via treaty, even though the need for a governance regime for the Arctic is becoming all the more necessary as time goes on. Second, the diplomats and leaders of the coastal Arctic states have explicitly provided in one form or another that the current status quo is enough, thus a bilateral treaty is unlikely to arise on its own.¹⁰² Furthermore, a bilateral treaty would likely undermine whatever cooperation may exist between the coastal Arctic states by forcing a confrontation over the various boundaries, a confrontation that no one wants to have. Third, despite scholars' and politicians' insistence that nothing is wrong in the Arctic, the truth may be a little more nuanced for several reasons. Historically, the Arctic has been a theater of military tension and political gamesmanship,¹⁰³ and despite current trends, there is no geopolitical guarantee that such tensions may not arise again.¹⁰⁴ To illustrate this point, Arctic powers have begun to project their military power in the High North, for example, Russia has been building a large fleet of icebreakers to guard their interests.¹⁰⁵ In this vein perhaps, the Russian Federation may have the most to lose and the most to gain in the Arctic Ocean¹⁰⁶, even though Russia's interests may be in direct conflict with some of the interests of Scandanavian states.¹⁰⁷ Thus, not only is a bilateral solution untenable, but there is some evidence to suggest that a multilateral mechanism may bear fruit.¹⁰⁸ To solve the problem of Arctic territorial claims, multilateral fora like the Arctic Council and the NATO-Russia Council may be excellent environs for crafting a new solution.