“[T]here will be legal and political ramifications for the United States and U.S. companies if they pursue their Arctic objectives without the United States first acceding to the U.N. Convention on the Law of the Sea.”
The Arctic is rich in resources and a variety of nations in and around the Arctic are aggressively seeking access. Experts predict that increasing temperatures will result in a seasonally ice-free Arctic as early as the 2030s. This has the potential to provide countries access to a variety of benefits, including more expeditious shipping and navigational routes, extensive fisheries, marine scientific research, and the substantial natural resources located in each Arctic nation’s continental and extended continental shelves. These changes have significant implications for U.S. environmental, economic, and national security policy concerns. The United States, however, is disadvantaged by the fact that it is not a party to the U.N. Convention on the Law of the Sea (UNCLOS).
In 2008, the United States, along with the four other nations bordering the Arctic, signed the Illulisat Declaration, which proclaimed that the parties remain committed to the “law of the sea.” These nations were specifically referring to UNCLOS. Russia, Canada, Denmark, and Norway have ratified the Convention. Although the United States has not ratified, it considers UNCLOS to generally reflect customary international law. UNCLOS touches nearly every conceivable U.S. maritime interest in the Arctic.
The UNCLOS provisions that have provoked the most opposition in the United States, but that also involve the most lucrative U.S. interests in the Arctic, are those that provide processes through which a coastal state can extend its exclusive sovereign rights to explore and develop the resources on its extended continental shelf and in the seabed beyond its national jurisdiction. The potential implications of these regimes for the United States and U.S. industry in the Arctic are profound. UNCLOS opponents in the United States contend that the United States is free to pursue its Arctic objectives outside UNCLOS. This Article argues, however, that there will be legal and political ramifications for the United States and U.S. companies if they pursue their Arctic objectives without the United States first acceding to UNCLOS.
Given that UNCLOS member states have voluntarily created a seafloor regime in which rights and benefits are contingent on beneficiaries fulfilling significant obligations, member states, at a minimum, have an interest in preventing free-riding and circumvention of this system. These actors could bring legal actions against the United States or U.S.-licensed companies for violations of international law or foreign domestic law. If the United States is under an obligation to comply with an UNCLOS provision that has also become customary international law, failure to comply could give rise to international liability and subject the United States to international legal remedies in both the International Court of Justice and the UNCLOS-created International Tribunal for the Law of the Sea. Further, a foreign state, corporation, or even an NGO could compel compliance with UNCLOS regimes by bringing an action against the United States or a U.S.-licensed company in a foreign domestic jurisdiction that has incorporated UNCLOS obligations into its domestic law.
From a political standpoint, as a non-party, the United States may have less influence in resisting efforts by states such as China, India, South Korea, Singapore, and Italy to modify the application of UNCLOS provisions in the Arctic.
The full article can be read here.