Does the U.S. Really Need The Law of the Sea Treaty to Make Claims in the Arctic?

by Julian Ku

Here is another persuasive account of why the U.S. is disadvantaged by not joining the UN Convention on the Law of the Sea.  The case is fairly simple: There is a lot of oil and natural gas up there, and the U.S. can’t negotiate with other countries to divvy it up until it signs on to UNCLOS.

The 5.5 million-square-mile area north of the Arctic Circle — part of the U.S., Russia, Canada, Denmark (which owns Greenland), Finland, Norway, Iceland and Sweden — contains up to 25 percent of the Earth’s undiscovered oil and gas reserves, according to the U.S. Geological Survey. . . .
But to remove those resources you have to own them, and nations are now scrambling to claim vast new areas of sea bottom. They can do so by proving them to be extensions of their continental shelves. In summer, U.S., Russian, Canadian, and Danish scientists aboard icebreakers conduct studies to support claims submitted to a U.N. commission. In theory, the U.S. could gain an undersea region as big as California.
That’s the good news, but the bad news is that the United States is last in the claims race. The U.N. Commission on the Limits of the Continental Shelf has begun examining claims from Russia and Norway, which could be granted before the U.S. formally joins the process. Although the U.S. is gathering information for a claim, it cannot be submitted — nor can the U.S. have a say in the claims of other nations — until the government signs an international treaty. The agreement under which the apportionment of riches will go forward — the 1982 Law of the Sea Convention – lays out a comprehensive set of rules governing ocean issues, including protection of marine environments. All Arctic nations except the U.S. have signed. “If this were a ball game,” one Coast Guard admiral told me, “the U.S. wouldn’t be on the field or even in the stadium.”
This seems right to me, and is a compelling reason for joining UNCLOS that may overcome objections in the U.S. Senate.  Having said that, if the U.S. does not join UNCLOS, it is of course not bound by any of the determinations of the UN Continental Shelf Commission.  It would be harder, but in theory the U.S. could simply work out bilateral deals with all of the claimants on delimitations on the continental shelf.  Am I missing something? I admit this might be really hard and complicated, but I think it is a viable option if the U.S. doesn’t join UNCLOS. Since passage of UNCLOS is hardly assured, even in the current U.S. Senate, perhaps the U.S. needs a Plan B?
http://opiniojuris.org/2010/03/15/does-the-us-really-need-the-law-of-the-sea-treaty-to-make-claims-in-the-arctic/

3 Responses

  1. Julian:

    I think the points you raise argue strongly in favor of U.S. accession to the LOS Convention.

    I do not see that a “bilateral deals” approach could work.  Even under the LOS Convention, of course, states still must make bilateral agreements (or proceed to arbitration, etc.) to delimit disputed continental shelf maritime boundaries with their neighbors.  The CLCS is concerned with continental shelf outer limits, not boundaries between adjacent states.  The CLCS will in fact not make its recommendations concerning the outer limits of any part of the continental shelf that is the subject o a maritime boundary dispute, unless the disputing states make joint submissions to the CLCS (something that several states parties to the Convention have done); or states may make partial submissions to the CLCS (related to areas in which there is no disputed boundary with a neighbor) and save submissions related to disputed areas until after the maritime boundaries have been delimited. 

    No “bilateral deals” can substitute for the CLCS function, which is to make recommendations concerning the outer limits of the continental shelf beyond 200 nautical miles from baselines — that is, where the continental shelf borders on the Area (deep seabed) beyond the limits of national jurisdiction.  Outer limits that coastal states set “on the basis of” CLCS recommendations are, per the LOS Convention, “final and binding;” outer limits that are not set on the basis of CLCS recommendations are much more likely to be disputed.

    Unless the U.S. is on the “inside” as a party to the Convention, it suffers disadvantages.  First, the U.S. cannot now, in my opinion, submit data on outer limits to the CLCS.  The U.S. hence cannot obtain the recommendations that are necessary to set the “final and binding” outer limits of its own continental shelf.  I suspect oil companies may not want to drill unless they know with certainty where the outer limits lie, and are assured that their claims will not be challenged internationally.  Other states have fully bought into the LOS Convention/CLCS process, and the prospect of U.S. “outer limits deals” with those other states (which are Convention parties) — deals that somehow would skirt the CLCS process — seems farfetched.  I really doubt that all other states would agree to any end run around the Convention process that they have so long and so fully endorsed, in name and in practice (via submissions to the CLCS).  Nor, I suspect would the U.S. itself regard the outer limits line as something to be agreed upon through a series of bilateral arrangements.  States regard the setting of outer limits lines — lines between the continental shelf and the Area — as unilateral acts (to be made after, for parties to the Convention, receiving recommendations of the CLCS).

    Second, if the U.S. were on the “inside” as a Convention party (which would probably allow a U.S. expert to sit on the CLCS), it would be more able to effectively make arguments about other states “overly expansive” outer limits claims (something that concerned the U.S. at UNCLOS III).  In fact, the CLCS has already disregarded U.S. comments about Brazil’s outer limits submission.  If the U.S. were a party to the Convention, it could also more effectively raise points about CLCS procedures. 

    There is a third continental shelf-related argument sometimes raised regarding the advantage of the U.S. joining the Convention.  It is that the U.S. and other non-parties to the Convention are not entitled to any continental shelf beyond 200 miles from baselines AT ALL.  Under this view, the extended continental shelf may be regarded as a quid pro quo part of the overall LOS Convention bargain hammered out at UNCLOS III and enshrined especially in articles 76 and 82 of the Convention.  I personally do not think this third argument is a good one.  I think instead that non-parties may be legally entitled to a shelf beyond 200 nautical miles (depending on relevant geological and geomorphological factors), but that non-parties are not able to engage in a process leading to a “final and binding” outer limit line.  But in order to overcome the “no continental shelf at all beyond 200 miles” position, the U.S. currently must rely on customary international law arguments to establish the existence of a legal U.S. continental shelf beyond 200 nautical miles from baselines.

    John Noyes

  2. The Arctic is not the only area in which the US has interests beyond the EEZ. Consideration of a “Plan B” should draw from past experience with regard to the mineral resources of the deep seabed.

    After the US decided not to join the LOS Convention due to President Reagan’s objections to the deep seabed mineral provisions, the US sought to set up a “reciprocating states” agreement for mutual recognition of minesite claims on the deep seabed. The US succeeded in establishing this regime, but only to the point that the other parties to the arrangement joined the Convention in conjunction with the 1994 Agreement on Implementation of Part XI. Up to that point, the other parties in the reciprocating states agreement had kept their options open by negotiating with the US and by participating in the Preparatory Commission for the LOS Convention. When the Convention came into force, our allies joined it and, as required by the Convention, gave the new International Seabed Authority full authority over recognition of minesite claims, leaving the US isolated and unable to provide exclusive access except against other US firms.

    The collapse of the Reciprocating States regime and the isolation and demise of the US seabed mining industry after the LOS Convention came into force, and existence of 8 active development  operations (including from France, Germany, Japan, Russia, India, China, South Korea and a consortium of east european states) under the ISA, suggests to me that a bilateral approach to the extended shelf is doomed to follow the same path. US firms are not only unable to make claims to the ISA, they are unable to engage investors or technology partners from states parties to the Convention – a lesson for the prospects of international engaging foreign investment or partners in areas of the extended shelf that have not been confirmed by the CLCS.

    In a broader view, it is notable that the Convention’s provisions for recognition of claims to the extended continental shelf have, thus far, channeled the largest division of unclaimed lands since the Pope’s attempt to divide the new world between Spain and Portugal in the late 15th century into a peaceful legal path based on science and law. Even as a non-party, US activities to circumvent this process could give other countries the political cover to make excessive claims without the concurrence of the CLCS. That may not be a strong argument against US making its claim in the Arctic, but it would be a powerful factor for the other four Arctic coastal states to avoid such a side deal with the US.

    Effectively, Plan B is to stay within our Exclusive Economic Zone and deal with other regional and national claims to extended territorial and functional jurisdiction that stretch the intent of the LOS Convention as a non-party and outsider. This would require an increased commitment to the contentious Freedom of Navigation Program and would engender situations in which the US must choose between our long term interest in demonstrating our interpretation of our navigational freedoms and resource management authorities and our near-term interests of partnerships with allies on matters of terrorism, trade, and bi-lateral relationships. The need to protect long term ocean interests from erosion by short term expediency was one of the main reasons the US sought a comprehensive and universal law of the sea convention in the first place, and it is still an important argument to become party.

    With regard to John Noyes final point, I would point out that the US had, before the LOS Convention, always limited the definition of the “continental shelf” to the true extension of continental material that ends at roughly the 200 meter isobath. It is the 1982 Convention that redefined the legal continental shelf to include the continental slope and rise. It seems a weak argument to claim that the US can pick and choose which individual sentences of the Convention’s article on the continental shelf constitute customary international law and which do not, and it certainly undercuts any right of the United States to challenge excessive claims by other states if the US claims exclusive right to set our own outer limit.

  3. Let me just say that those were two of the most interesting comments I’ve ever read at OJ. Well done, commenters. :)

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