Revision of U.S. is losing emerging Arctic race by not being party to UNCLOS from Thu, 02/10/2022 - 17:40
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
In support of multilateral Arctic partnerships are a number of broad-based and disparate organizations and policies nonetheless unified in support of the issue, and additional support comes from consequential benefits inherent in UNCLOS accession. Overarching is National Security Presidential Directive (NSPD) 66, “Arctic Region Policy,” released in 2009. Among the directive’s policy statements is a robust admonishment for accession to UNCLOS:
Joining [the UNCLOS treaty] will serve the national security interests . . . secure U.S. sovereign rights over extensive maritime areas . . . promote U.S. interests in the environmental health of the oceans . . . give the United States a seat at the table when the rights that are vital to our interests are debated and interpreted . . . [and] achieve international recognition and legal certainty for our extended continental shelf.19
Furthermore, NSPD 66 persuasively promotes multinational partnership in the Arctic to address the myriad issues faced in the region.20 Likewise, the Department of Defense, as articulated in its 2010 Quadrennial Defense Review, strongly advocates accession to UNCLOS in order “to support cooperative engagement.”21 Also among the tenacious supporters of accession are the U.S. Navy, whose leadership stresses that UNCLOS will protect patrol rights in the Arctic, and a number of environmental groups who want to advocate on behalf of Arctic fauna and flora.22 In addition, the oil industry lobby representing Chevron, ExxonMobil, and ConocoPhillips asserts that oil and gas exploration cannot reasonably occur without the legal stability afforded in UNCLOS.23 In a consequential benefit of accession, the extended U.S. continental shelf claims could add 100,000 square miles of undersea territory in the Gulf of Mexico and on the East Coast plus another 200,000 square miles in the Arctic.24U.S. Resistance to Sea Treaty Thaws — Neil King Jr. — Wall Street Journal — Sep 22, 2007 [ More ] Accession acts to strengthen and extend Arctic jurisdiction, open additional hydrocarbon and mineral resource opportunities, add to the stability of the international Arctic framework, and boost the legal apparatus for curtailing maritime trafficking and piracy.25 The benefits appear to outweigh the costs as the United States is increasingly moving to a position of strategic disadvantage in shaping Arctic region policy outcomes by failing to ratify UNCLOS.26 U.S. Strategic Interests in the Arctic: An Assessment of Current Challenges and New Opportunities for Cooperation . Center for Strategic and International Studies: Washington, D.C., April 27, 2010 (28p). [ More (5 quotes) ]
The United States must take some very concrete steps over the next several years to improve its strategic posture in the Arctic so that over the next 40 years the region is a model of regional coop- eration and not a zone of potential conflict.
The most vital step the United States must take immediately is ratification of the Law of the Sea Convention (UNCLOS). UNCLOS provides the necessary guidance and appropriate frame- work to resolve claims to an extended continental shelf in the Arctic region. To prepare itself for ratification, the United States must continue to invest funds in Arctic scientific research and explo- ration in preparation for submitting U.S. claims for extended territorial boundaries. The Obama Administration must make UNCLOS ratification a legislative priority (amongst many other competing priorities) and achieve Senate ratification as soon as possible. Should the U.S. remain outside of UNCLOS for the foreseeable future, it will find itself in a growing strategic disadvantage in shaping future policy outcomes vis-à-vis the Arctic.
The United States’ continued failure to ratify the U.N. Convention on the Law of the Sea, or UNCLOS, despite broad, bipartisan consensus on its importance undermines our nation’s credibility in international marine affairs and diminishes our influence in international forums such as the Arctic Council. Since it was negotiated under Ronald Reagan, every president has supported ratification, and failure to ratify is preventing the United States from defining territorial claims in the Arctic under international law. This leaves us at a disadvantage to every other Arctic Council member. The Obama administration, as part of its comprehensive planning for the Arctic Ocean, should elevate efforts to secure Senate ratification of this treaty after the midterm elections. This effort should include renewed coordination with the Senate Foreign Relations Committee chairman, as well as high-level outreach to all members of the Senate to convey the vital importance of UNCLOS to U.S. commercial, scientific, and security interests in the Arctic Ocean. The administration should call on former Presidents Bill Clinton and George W. Bush to jointly encourage ratification.
Despite the slowdown, Russia continues to increase its military presence in the Arctic. The National Security Strategy of the Russian Federation until 2020 stresses the importance of strengthening border guard forces in the region and updating their equipment, while creating a new unit of military forces to “ensure military security under various military-political circumstances.”78 Russia’s assertive rhetoric has been matched by a range of steps that stake its military prominence in the Arctic by developing its coastal defense infrastructure and enhancing its technology capa- bilities, which have been perceived by its Arctic neighbors as provocative and controversial. For example, Russia fired cruise missiles over the Arctic in a summer 2007 exercise; reinforced its Northern Fleet in order to perform additional exercises in the summer of 2008; tested new electronic equipment and precision weapons; and resumed Arctic patrols for the first time since the end of the Cold War. Several times during the past two years U.S. and NATO jets have shadowed Russian bombers close to the Norwegian and Alaskan coasts, particularly during and after the Georgia-Russia conflict in August 2008.
A cooperative approach among international partners is key to ensuring U.S. interests are met within the Arctic region. A multinational effort is essential to ensure both human safety and appropriate environmental stewardship. A unilateral U.S. approach is simply not feasible. However, as the world’s sole superpower and as a contiguous Arctic nation, it is imperative that the U.S. assumes an Arctic leadership role within the international community.
Perhaps the most important step for the U.S. is to ratify UNCLOS in order to establish the legitimacy of U.S. leadership among the other stakeholders who have interests in the Arctic. This would partner the United States with the seven other Arctic nations (Russia, Canada, Denmark, Finland, Sweden, Norway, and Iceland), along with six indigenous organizations that are permanent members of the Arctic Council.52 This multinational assembly meets semiannually and “provides the greatest potential for a comprehensive resolution of environmental and governance issues in the Arctic.”53 NSPD-66/HSPD-25 clearly acknowledges that the “Arctic Council has produced positive results for the United States by working within its limited mandate of environmental protection and sustainable development.”54 U.S. representation on the Arctic Council has slowly increased since its first meeting in 1996. In fact, in March 2010 Secretary of State Hillary Clinton met with her counterparts from Canada, Russia, Denmark, and Norway in Chelsea, Quebec, as part of the Arctic Ocean Foreign Ministers’ Meeting. This meeting affirmed the importance of the Arctic Council, its membership, and the need for “new thinking on economic development and environmental protection.”55 However, the Arctic Council is hindered by its “lack of regulatory authority and the mandate to enact or enforce cooperative security-driven initiatives.”56 Although very useful for “scientific assessments” and “policy-relevant knowledge”, the Council does not address military concerns.57
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.