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Ratify the Law of the Sea Treaty

Implications for Alaska and why there’s no time to lose

Map: © The Arctic Institute | Center for Circumpolar Security Studies | thearcticinstitute.org

The views expressed herein are the authors’ own and not those of Samuel International and/or the University of Alaska.

In August 2007, a Russian expedition led by its most famous polar explorer, Artur Chilingarov, planted a Russian flag in a capsule on the Arctic seabed directly underneath the North Pole. The Arctic is Russian, Chilingarov bellowed. “We must prove the North Pole is an extension of the Russian coastal shelf.” Indeed, in 2001, the Russian Federation had made a vast territorial claim to almost one-half of the Arctic sea-bed in its submission to a 21-member United Nations scientific body called the Commission on the Limits of the Continental Shelf.

Unfazed by Moscow, the United States and fellow Arctic states criticized the extent of the Russian claim, particularly the attempt to declare an underwater mountain—known as Lomonosov Ridge, that runs through the central Arctic Ocean Basin—as an extension of the Russian landmass. As per the U.S. interpretation, the Lomonosov Ridge “is an oceanic part of the Arctic basin and not a natural component of the continental margins of either Russia or of any state.” The flag that Chilingarov planted in 2007 had in fact been planted on the Lomonosov Ridge, beneath the North Pole.

The U.N. body has since advised the Russians to revise their submission with regard to the central Arctic Ocean Basin. Nevertheless, submissions by Canada and Denmark—due in 2013 and 2014 respectively—are also expected to claim portions of the Lomonosov Ridge as extensions of their own national landmasses.

Race for Turf

Clearly, a scramble for territory is under way in the Arctic. Furthermore, this scramble is likely to be accentuated in the years ahead by a confluence of factors: the vast natural and hydrocarbon resources of the region and the unprecedented rate of Arctic ice-melt that is opening this previously inaccessible region to commercial shipping as well as natural resource development. Even non-Arctic states are entering the fray. China, India and Japan have all expressed interest in becoming “permanent observers” to the Arctic Council, an inter-governmental forum consisting of the eight Arctic littorals—and in mid-August, China’s polar icebreaker, Xuelong, became the first ever Chinese ship to traverse these waters.

As per a July 2008 U.S. Geological Survey study, the total undiscovered conventional oil and gas resources in the Arctic is estimated to be of the order of 90 billion barrels of oil, 1.7 trillion cubic feet of natural gas, and 44 billion barrels of natural gas liquids. Almost one-fourth of the world’s undiscovered oil and gas resources are expected to lie in the Arctic—almost all of it offshore.

If the scale of potential resource riches is gargantuan, the window for its responsible exploitation is widening by the day. As per the Arctic Council’s “Arctic Climate Impact Assessment,” climate change in the region is estimated to be twice as intense as elsewhere on the planet. Latest evidence from the University of Colorado’s National Snow and Ice Data Center suggests that the Arctic ice cover has shrunk to 1.58 million square miles, the smallest it’s been since satellite measurements began in 1979.

Emblematic of this window afforded by the accelerated rate of polar ice-melt is the number of ships that have begun to use the Northern Sea Route, a sea line of communication running along the Russian Arctic coast from Murmansk on the Barents Sea to the Bering Strait in the Russian Far East. As Arctic sea lanes have become navigable during the summer months, commercial transit through these waters has increased. In 2010, only four ships used the Northern Sea Route; in 2011, as many as 34 ships used the route; and by Sept. 10, 22 ships had used the route, with more expected through November. While the Europe-Asia ship traffic running through the Suez Canal and the Straits of Malacca is likely to be dented only marginally in the years ahead, the numbers of ships plying the Northern Sea Route can in contrast be expected to rise exponentially.

If the commercial opportunities in the years and decades ahead in the Arctic are immense, so is the complexity of some of the region’s interstate frictions. Control over a number of land features and bodies of water in the Arctic is currently disputed, including the Northern Sea Route, claimed by Russia as internal waters; the Northwest Passage, claimed by Canada as internal waters; the Beaufort Sea, disputed between Canada and the U.S.; the Lomonosov Ridge and its planted Russian flag, disputed by Denmark, Canada and the United States.

As the changing climate opens the Arctic to greater navigational and commercial penetration, the lack of predictability of national jurisdictional rights and security of property rights is likely to significantly limit the scope of responsible commercial exploitation of the region’s overlapping and common resources. Worse, it might also tempt acts of unilateralism by the oil companies operating in the region as they prepare to prospect for resource riches in contested Arctic maritime zones. A similar “race to the resources” in the South China Sea has already led to an alarming rise in interstate tensions. Without predictability of tenure a similar fate might befall the Arctic Ocean region.

Peaceful Negotiations

Hence, the key question going forward is this: Can the “race to the resources” be transformed into an orderly, peaceful and positive-sum commercial race that is consonant with the principles and best practices of international law, or will it degenerate into an exercise of raw power politics and struggle that will bring neither the security nor the stability to enable the responsible commercial exploitation of this resource rich corner of the planet?

If it is to be the former—with all the commercial benefits that could accrue to Alaska and the United States, the U.S. Senate will need to firmly throw its weight behind a body of international law which, among other things, facilitates orderly and peaceful development: the U.N. Convention on the Law of the Sea Treaty. Alone among the major western states and the various Arctic littorals, the U.S. is a non-signatory to this vital treaty. An opening in this regard will likely present itself this November when the treaty is placed on the Senate floor for ratification.

The U.N. Convention on the Law of the Sea Treaty is a globally agreed legal framework for the management of the world’s oceans. Navigational freedoms, including the freedom of movement of warships through the high seas, international straits and archipelagic waters, are deeply embedded in the Law of the Sea Treaty. Crucially, insofar as claims to maritime territory and rights to development of seabed resources are concerned, the treaty provides for a technical body of experts—the Commission on the Limits of the Continental Shelf—to assess and verify the competing claims of various states. Provision for law-based dispute settlement of conflicting claims is also provide for, as well as a framework for joint and cooperative development of such contested zones in the interim. Apart from the U.S., all other Arctic Council members have ratified the Law of the Sea Treaty.

With Canada due to submit its continental shelf submission next year to the Commission on the Limits of the Continental Shelf, the overlap of a Commission-endorsed Canadian territorial and resource baseline with that of a presumed American one will surely pose a delicate political and commercial dilemma in the years ahead. Indeed, non-membership in the Law of the Sea Treaty will likely preclude Washington from even obtaining a formal hearing on this matter.

Is Resistance Reasonable?

So why has the U.S. Senate not ratified the Law of the Sea Treaty as of press time? Aside from misplaced fears of navigations roadblocks placed in the path of the U.S. Navy, the reason is twofold. First, that treaty constitutes an unacceptable encroachment on U.S. sovereignty. By way of this argument, opponents insist the treaty empowers an international organization—the International Seabed Authority —to regulate U.S. deep-seabed mining companies in international waters and thereupon redistributes the royalties from such to developing and landlocked nations rather than to the U.S. Treasury. Secondly, via the Law of the Sea Treaty’s mandatory technology transfer provisions, the U.S. would be complicit in an exercise of “massive global welfare,” what some view to be a form of global collectivism doled out by unelected international bureaucrats.

Neither objection holds water. In 1994, the offending part of the treaty was renegotiated to accommodate the U.S. objections. The technology transfer provisions have been voided, the International Seabed Authority structure altered so as to seat the U.S. permanently on its governing council, and a permanent—and exclusive—veto authority granted to the U.S. with regard to determination and distribution of seabed mining royalties. As one of the foremost legal luminaries on the law of the seas, John Norton Moore has observed, “The renegotiated International Seabed Authority … 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.” All the conditions deemed essential for accession by President Ronald Reagan in 1982 were in fact met in the 1994 renegotiation. Furthermore, as currently written, ratification of the treaty will extend the U.S. economic and resource jurisdiction into the oceans by an area larger than the entire land territory of the United States. The secure property and commercial development rights over this vast space will be doubly valuable to both the Alaska and national economies.

On Sept. 28, 1945, by way of the “United States Presidential Proclamation on the Continental Shelf,” President Harry Truman unilaterally arrogated a domestic maritime space much beyond the then generally accepted three nautical mile territorial sea limit. The Truman Proclamation was a seminal moment in the development of the continental shelf concept. Almost seven decades later, the time has arrived for the U.S. to legally recoup its rightfully due access to its share of the Arctic’s treasure trove of resources, including that at the outer limits of the Alaska continental shelf. Will the U.S. Senate set partisanship aside and square the circle that Mr. Truman had himself begun to draw many decades earlier? And in voting so, will it also deliver an equally weighty blow in favor of orderly and peaceful development of the ocean’s vast resource endowment?

Map: © The Arctic Institute | Center for Circumpolar Security Studies | thearcticinstitute.org The Arctic Shipping Routes map is used with permission.

Sourabh Gupta is a Senior Research Associate at Samuels International Associates Inc., a strategic international trade and political advisory firm based in Washington, D.C. He holds master’s degrees in international security studies and international relations from the Walsh School of Foreign Service at Georgetown University and the Maxwell School at Syracuse University, respectively. He is currently a 2012 East Asia Forum Distinguished Fellow.

Dr. Ashok K. Roy is the Vice President for Finance & Administration/Chief Financial Officer for the University of Alaska system. Dr. Roy has significant experience, at senior management levels, at three other large universities, local government, and in the private sector. Dr. Roy was educated in the USA and India, and holds six university degrees and five professional certifications. He has authored 66 publications in academic and trade journals.

This article first appeared in the November 2012 print edition of Alaska Business Monthly magazine.

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