The Polarized North: Ending the Debate on UNCLOS

Dan Doty is the Editor-in-Chief of the Environmental Law and Policy Review at the William and Mary School of Law, where he is entering his final year.  He is spending his summer at the District Attorney’s office in Fairbanks, Alaska.

Activists say it is important to protect low-lying nations like the Maldives from inundation by rising seas, to save animals from the destruction of their natural habitat by limiting development, and to develop clean alternative energy sources to supplant the widespread use of fuels that contribute to rising greenhouse gas levels.  These goals are difficult to argue with, but to limit the focus of sustainability policy to these ideals is short-sighted.

Any policy worth implementing recognizes the possibility of failure or delay in achieving its complete objectives.  None can argue the point that the government in the Maldives would be foolish to fight rising sea levels without also making plans to evacuate its citizens in case these efforts fail.  That, however, is precisely what the United States has done in the Arctic.  America’s failure to accede to the United Nations Convention on the Law of the Sea (“UNCLOS”) is a colossal oversight in the development of a comprehensive sustainability policy.  Regardless of the world’s opinions, ice at the top of the world is melting, granting access to new shipping lanes and potential mineral riches.  To guarantee America’s position in this rapidly changing theater, the United States must accede to the United Nations Convention on the Law of the Sea as a hedge against the slow evolution and potential impotence of international climate change policy.

Of the five littoral nations on the Arctic Ocean – Russia, Canada, the United States, Norway, and Denmark – the United States is the only one that has not yet acceded to UNCLOS.  This is an incredibly myopic foreign policy decision. Operating outside UNCLOS deprives America of three important benefits: uniformity and predictability of resource access rights, legitimacy of resource extraction and access, and legitimacy to challenges against the claims of other countries.

The Convention is complex, to be sure, but at heart its primary purpose is to set and guarantee varying levels of sovereignty in the ocean to signatories.  It establishes a number of specific zones – internal waters, territorial waters, the contiguous zone, the Exclusive Economic Zone (“EEZ”), and finally the continental shelf.  UNCLOS establishes differing sovereign rights over each zone – for example, states can only bar vessels from entering territorial waters but can extract minerals all the way out to the boundary of the continental shelf.  The bulk of the Convention concerns these zones and the rights that exist in each zone, but it also establishes some rules regarding the freedom of scientific research in international waters and mineral extraction in pelagic waters far beyond the extent of any nation’s continental shelf.

These terms provide substantial uniformity of rights for members, which in turn leads to predictability and stability of relations between nations with competing interests.  This is desirable in the Arctic; the Arctic Ocean is the world’s smallest, with an area less than that of Russia.  By comparison, three of the littoral nations are among the world’s five largest countries, all five are wealthy, and preliminary data suggests that the seabed contains up to a quarter of the world’s oil and natural gas reserves.  Record and near-record lows in summer sea ice coverage seem to guarantee that Arctic countries will have much more access to these resources.  Such massive and rich countries, competing over such a huge wealth of resources in such a small area require clear, unequivocal and enforceable rules to govern their interactions.  UNCLOS provides this regime.  Accession would go a long way in guaranteeing secure and peaceful relations during this transition.

By acceding to the treaty, the United States would add legitimacy to its own resource extraction programs in the Arctic Ocean.  The Obama administration, while seemingly committed to the idea of developing alternative energy, has rightly recognized that until clean energy becomes a universal reality the United States must at least guarantee the security of its own energy supply.  The expanding seas of the Arctic partially solve this problem.  That said, if America started a drilling program that relied on the zones created by UNCLOS without signing on to the treaty, it would open itself up to substantial criticism in the international community.  Signing and implementing UNCLOS is the only way to ensure that America gets a minimally-contested shot at expanding its domestic energy reserves.

On the flip side, acceding to the treaty would add legitimacy to America’s challenges to the claims of other countries.  The ability to challenge serves the dual functions of protecting American claims in the Arctic Ocean and preventing the over-expansion of other countries into areas that could be environmentally sensitive.  The right to challenge is particularly valuable in pursuit of conservation goals – such challenges can be supported both by zone-based rights and by the limited protection-of-common-heritage rights guaranteed in lesser-cited provisions of the Convention.  Russia placed a flag on the ocean floor over the North Pole, on the dubiously-supported grounds that it is part of the Russian continental shelf.  America has no easy framework through which to challenge this assertion and keep the North Pole open and protected from mineral extraction in the short-term; Russia is unlikely to listen to any claims from a country that has not bound itself by the only law that could conceivably justify such a challenge.

Common arguments against UNCLOS hold little water.  One common complaint holds that United Nations initiatives are so frequently ineffective that the utility of accession is far from guaranteed.  The response is obvious; our membership might not guarantee success in our disputes with other Arctic countries, but our absence ensures we will be ignored.  Another position is that membership in UN Conventions undermines American sovereignty.  No one can seriously argue that a treaty expanding our country’s exclusive economic control to over two hundred miles or more of ocean floor is a limitation of our sovereignty.  UNCLOS works so well because it protects and expands the independence of member nations.

It is certainly in the best interests of Arctic countries – and of all nations – to strive to stop climate change in its tracks.  However, it would be absurd not to recognize the body of evidence documenting the immediate effects of climate change and change policies accordingly.  As the Arctic Ocean continues to open, the littoral nations must establish policies to handle the expanded access.  The United States is certainly behind the curve.  UNCLOS is a highly effective and near-universally accepted body of international maritime law, however, and it would be in America’s best interests to join this treaty, at long last, and work to guarantee the responsible development of natural resources in the Arctic.