U.S. is losing emerging Arctic race by not being party to UNCLOS
By remaining outside of UNCLOS, the U.S. is ceding its leadership role in the region in a number of ways. First, and most importantly for the U.S. strategic and economic interests, by remaining outside of the treaty the U.S. is not able to submit its claims for the extended continental shelf in the Arctic to the CLCS, preventing U.S. industries from claiming mineral rights. Secondly, existing Arctic governance regimes are based on and rely on UNCLOS and the U.S. non-party status prevents it from contributing as a full partner, weakening the overall Arctic governance regime. Finally, U.S. efforts to develop a strategy for the Arctic are constrained by the continual question of its non-party status and legitimacy as a leader.
Quicktabs: Arguments
The legal regime applicable in the Arctic is the customary international law as reflected in the United Nations Convention on the Law of the Sea (UNCLOS). While the United States has not ratified UNCLOS, it considers the convention’s navigation and jurisdiction provisions to be binding international law. The convention advances and protects the national security, environmental, and economic interests of all nations, including the United States, codifying the navigational rights and freedoms that are critical to American military and commercial vessels. It also secures economic rights to offshore natural resources.26 Article 76 of the convention allows nations to claim jurisdiction past their exclusive economic zones on the basis of undersea features that are considered extensions of the continental shelf, if a structure is geologically similar to a nation’s continental landmass.27 In May 2008 five of the Arctic nations adopted the Illulissat Declaration, which acknowledges that “the Law of the Sea is the relevant legal framework in the Arctic” and that there is “no need to develop a new comprehensive international legal regime to govern the Arctic,” committing the signatories to an “orderly settlement of any possible overlapping claims.”28
Currently there are overlapping, unresolved maritime boundary claims between the United States and Canada, Canada and Denmark, Denmark and Norway, and Norway and Russia. At this time, none of these disputed boundary claims pose a threat to global stability. While the United States and Canada disagree on the location of the maritime boundary in and northward of the Beaufort Sea, the United States considers Canada a close ally, and the dispute does not jeopardize this relationship.29 Unfortunately, the United States is the only Arctic nation that has not joined UNCLOS, despite support from President Barack Obama and the Bush and Clinton administrations. Because the Illulissat Declaration recognizes the law of the sea as the framework for deciding issues of Arctic territoriality, the United States will likely find itself at a disadvantage when critical Arctic conversations occur.30
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.
In May 2008, the United States signed the Ilulissat Declaration, an agreement among the five coastal states bordering the Arctic Ocean to abide by the customary law of the sea framework, even while it has not yet ratified the broadly accepted United Nation Convention on Law of the Sea (UNCLOS).10 While the Ilulissat Declaration establishes the body of law for managing the rights and obligations of states specifically within the Arctic Ocean, UNCLOS provides the primary mechanism for peaceful resolution of disputes and recognizes underwater territorial boundaries on the extended continental shelf.
Without ratification of UNCLOS, the United States lacks the legal power to contest the claims of other states in issues of overlapping maritime boundaries and the rights to resources on the continental shelf. This could give rise to what the international legal community terms excessive maritime claims. Therefore, unless the United States ratifies UNCLOS, the nation cannot properly protect its freedom of navigation as well as natural resource, energy and environmental interests in the Arctic.11
Meanwhile, U.S. influence in the region is waning, which will only exacerbate America’s ability to secure its interests in the region. Within the Arctic Council, the primary venue for promoting cooperation in the region, the United States remains the only member that has not ratified LOSC. The Arctic Council is a consensus-based forum which often debates and makes decisions regarding issues already governed by previous agreements and international law, such as the natural resource exploitation protections provided by LOSC. Considering agreements within existing frameworks such as LOSC can make it easier to level the playing field and hold discussions with countries – except the United States. Given its failure to date to ratify LOSC and subsequent lack of international legitimacy and protections provided under the International Seabed Authority for its natural resource claims, the United States remains excluded from important mechanisms for promoting economic cooperation and respect for rightful natural resource claims by all Arctic countries.
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.
While the other Arctic powers are racing to carve up the region, the United States has remained largely on the sidelines. The U.S. Senate has not ratified the UN Convention on the Law of the Sea (UNCLOS), the leading international treaty on maritime rights, even though President George W. Bush, environmental nongovernmental organizations, the U.S. Navy and U.S. Coast Guard service chiefs, and leading voices in the private sector support the convention. As a result, the United States cannot formally assert any rights to the untold resources off Alaska's northern coast beyond its exclusive economic zone -- such zones extend for only 200 nautical miles from each Arctic state's shore -- nor can it join the UN commission that adjudicates such claims. Worse, Washington has forfeited its ability to assert sovereignty in the Arctic by allowing its icebreaker fleet to atrophy. The United States today funds a navy as large as the next 17 in the world combined, yet it has just one seaworthy oceangoing icebreaker -- a vessel that was built more than a decade ago and that is not optimally configured for Arctic missions. Russia, by comparison, has a fleet of 18 icebreakers. And even China operates one icebreaker, despite its lack of Arctic waters. Through its own neglect, the world's sole superpower -- a country that borders the Bering Strait and possesses over 1,000 miles of Arctic coastline -- has been left out in the cold.
The United States has also taken steps to tie its continental shelf to the Arctic Seacap in an effort to claim some of the re- sources beneath it.192 The most recent U.S. expedition may have found evidence to extend the continental shelf north of Alaska 100 miles from where it was originally thought to be.193 This could provide a challenge to Russia, Denmark and even Canada’s claims to the territory in the Arctic Seacap. However, as a non-party to the Convention, the United States has limited recourse for its claim.194 As a party, the United States may (and likely would) submit evidence of its expansive continental shelf to the Commission on the Limits of the Continental Shelf and conclusively establish the outer limits of its territorial sea in the Arctic.195 Should another state try to infringe upon these limits, the United States would have evidence supported by international law to protect itself. The states most likely to pose a threat to the United States in the Arctic—Denmark, Canada and Russia—are all parties to the Convention and therefore must adhere to the findings of the Commission on the Limits of the Continental Shelf. Absent ratification of the Convention, the United States could have taken Russia’s approach. In the unlikely event that terra nullius is found to be an acceptable method for claiming territory on the seas, this action, nevertheless, would have been futile since Russia was the first to assert a claim over the Arctic.
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.
UNCLOS must be the legal bedrock of U.S. Arctic policy. UNCLOS is the framework of cooperation within the region. Other nations have rejected the push for an Arctic treaty, like the Antarctic Treaty, favoring instead the UNCLOS structure.245 By ratifying UNCLOS, the U.S. will advance a “remarkable treaty that expands U.S. sovereign rights, powerfully serves U.S. needs for the Navy and the Coast Guard, and provides American industry with the security necessary to generate jobs and growth.”246 By joining the UNCLOS alliance, the U.S. will be better able to settle maritime claims and disputes between other Arctic nations on issues such as outer continental shelf and maritime boundary line issues. The U.S. will also be in a better position to challenge the jurisdictional claims of both Russia (Northern Sea Route) and Canada (Northwest Passage). Only through UNCLOS can the U.S. make rightful claim to the Extended Continental Shelf and the natural resources within it. Implementation requires Congressional action and pressure by the Administration to get UNCLOS to a vote in the Senate.
Other Benefits. We should also join the Convention now to steer its implementation. The Convention’s institutions are up and running, and we – the country with the most to gain or lose on law of the sea issues – are sitting on the sidelines. As I mentioned, the Commission on the Limits of the Continental Shelf has received submissions from over 40 countries without the participation of a U.S. commissioner. Recommendations made in that body could create precedents, positive and negative, on the future outer limit of the U.S. shelf. We need to be on the inside to protect and advance our interests. Moreover, in fora outside the Convention, the provisions of the Convention are also being actively applied. Only as a party can we exert the level of influence that reflects our status as the world’s foremost maritime power.
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