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.

UNCLOS opponents habitually point to the 2000 US-Mexico maritime delimitation treaty, portraying it as an irrefutable example of why the United States does not need UNCLOS in order to exploit the resources within its ECS; therefore, the “legal certainty” offered by a CLCS ECS submission is not as vital as UNCLOS proponents would suggest.77 But this argument is flawed in that it relies on a paradigmatic conflation between two separate and distinct UNCLOS procedures: ECS delineation by a coastal State and maritime boundary delimitation between two or more States.⁷⁸ These two procedures are not the same thing, nor do they entail the same rights and privileges.

Article 76 was drafted with the intent of creating a universal mechanism in which the outer limits of a State's continental shelf would eventually be permanently fixed so as to exclude any future expansion of national jurisdiction into the international seabed area.⁷⁹ Article 76(10) expressly provides that the provisions of article 76 are “without prejudice” to the question of continental shelf delimitation between States with opposite or adjacent coasts.⁸⁰ Specifically, article 76(10) guarantees that a submission of an ECS claim by one State will not affect the rights of another State where the delimitation of their shared continental shelf remains at issue.⁸¹ Standing alone, this may not be dispositive of much, but consider for a moment that out of the twentynine areas in which continental shelves exist beyond 200 nautical miles, only seven of those areas involve jurisdictional claims exercised by a single State.82 In other words, the drafters of article 76 were aware of the potential for conflict between States with competing maritime claims and, thus, included the “without prejudice” language so as to encourage greater treaty accession.⁸³ Consequently, article 76(8) and (9)—concerning the final and binding nature of a delineated ECS- are thus rendered without legal effect if relied upon in a delimitation dispute where an overlapping ECS becomes a point of contention between two coastal States.⁸⁴ In fact, the entire ECS framework outlined in article 76 becomes essentially moot within the context of an ongoing delimitation dispute between two coastal States.85 Thus, under international law, ECS delineation and ECS delimitation are two entirely separate processes where the disposition of one has no legal effect on the results of the other. It is axiomatic, therefore, that if the legal processes differ then so do the legal statuses—each carrying with them different rights and privileges—granted through the conclusion of each procedure. Accordingly, it is in the interest of UNCLOS opponents to promote the public misperception that delimitation and delineation are the same constructs as far as UNCLOS is concerned, because only then can they further promulgate the false notion that nothing is to be gained by joining the treaty.
 

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.