Convention on the Law of the Sea: Why not adopt it?

Two previous articles in this space addressed the Arctic and the increasing navigational activities at the top of the world. 


In the first, "The Kara Gate — and beyond," the Northern Sea Route (NSR) — across European and Siberian Russia (from Novaya Zemlya to the Bering Strait) — and its neighbor across the Pole, the Northwest Passage (NWP) — through the Canadian archipelago, Alaskan waters and on to the Bering Strait — were highlighted. The intention was to emphasize the expansion of shipping, both across and within the Arctic basin, to draw attention to the increase in (and plans for) resource exploration, recovery and transport, as well as an already developing tourist destination.


The second, "The Arctic — Is the United States out in the cold?" brought it closer to home by narrowing down the subject to question whether the resources currently existing (or even planned) demonstrate this country's readiness to explore and exploit (in the best sense of the word) this opening resource-rich navigational highway. One example offered was not only the dearth of existing operational icebreakers (at the moment, one) but the apparent lack of any plans to procure any in the future. One other factor has played (and will play) a critical role is failure of the Unites States to ratify the United Nations Convention on the Law of the Sea (UNCLOS). It would seem that "attention" to the Arctic is being demonstrated by most of the globe with one curious exception, the U.S. 


The term "Arctic" can have a number of different definitions, depending on the context within which it is used. The "Arctic Five" (Canada, United States, Russia, Denmark — via Greenland — and Norway) are all "Arctic Coastal States." 


Being "Arctic" can also imply having territory north of the Arctic Circle (66.53 N). In addition to the above "Arctic Five," three countries, although not littoral, have territory north of the Arctic Circle: Iceland, Finland and Sweden. They, plus the "Arctic Five" littoral states, are the Arctic countries that comprise the eight-member Arctic Council. Under international law, the five littoral states are entitled to an Exclusive Economic Zone — 200 nm measured from the low water mark (under the provisions of UNCLOS, the "baseline" from which territorial seas, EEZ, etc., are measured). These coastal states have or will submit competing claims for "extended" continental shelves.


Alluded to last time was the U.S. failure to ratify the third United Nations Convention on the Law of the Sea. UNCLOS III was developed by potential participating countries over the period 1973 to 1982; as stipulated by the convention, it would come into force and replace UNCLOS I (1958) and UNCLOS II (1960) when the requisite number of states had ratified it. This occurred with accession of the 60th state (Guiana) in 1994. Although the United States participated in the negotiations leading to the final treaty and was a signatory, it had to be presented to, and ratified by, the Senate to which it was sent in October 1994. There it remains, 17 years later!


There was strong support by the Bush and Clinton administrations, the Departments of State and Defense, the Navy and many in Congress on both sides of the aisle. In October 2007, the Senate Foreign Relations Committee voted 17-4 to send the treaty to the full Senate, but this was blocked when a small group of Republican senators led by James Inhofe successfully obstructed the full Senate from taking up the issue by threatening filibuster. Despite the 2010 Quadrennial Defense Review stating that it "strongly supports accession to the United Nations Convention on the Law of the Sea," it remains landlocked in the Senate and there it has languished — not merely unratified but not even brought forward for an up-or-down vote by the full Senate. To date, 161 nations have joined the Convention.


Article 76 of the Convention defines the continental shelf of a coastal state as "comprising the seabed and subsoil of the submarine areas that extend beyond the territorial sea … to the outer edge of the continental margin or to a distance of 200 miles from the baseline." This, in effect, is the Economic Exclusion Zone (EEZ). 


Another section of the same article provides for application of an extension of the shelf — and this is important — when geologic evidence is provided, but only to a maximum of 350 nm from the baseline (in effect — 150 nm beyond the EEZ boundary) or 100 nm beyond the 2,500 meter isobath.


Article 77 asserts that over (its) continental shelf, the coastal state "exercises sovereign rights for the purpose of exploring it and exploiting its natural resources" and later defines those as "mineral and other non-living resources of the seabed and subsoil … etc." Note that this does not include above the seabed — the water column and anything in it.


This underscores the subtle difference between the EEZ, which is a boundary set at a fixed 200 nm from the country's baseline, and a boundary scientifically established by a proven geologic relationship. The implications go deeper (so to speak) because of the "rights" that follow any internationally recognized "boundary." It becomes a practical (as well as legal) matter when it is recognized that while an "extended" continental shelf gives the state the "right" to resources on and below the seabed, it does not include those of the overlying water column as it does within the state's EEZ (fishing for one).


Under the terms of UNCLOS, claims for an extended continental shelf are submitted to that organization's "Commission on the Limits of the Continental Shelf" (CLCS). The members who sit on that commission are drawn from countries that have ratified (and thus are a party to) UNCLOS. Not having ratified, the United States has no seat at the table (or oar in the water) as it were. If and when the Senate ever ratifies UNCLOS, the U.S. has 10 years from the date of ratification to submit evidence to the CLCS for such an extended shelf claim.


An example of the functioning of the CLCS was a Russian claim for an extension of its continental shelf. Nearly bisecting the Arctic Basin, the Lomonosov Ridge extends across the basin from the New Siberian Islands, takes a zig around the North Pole, thence a zag southward as if taking aim at the center of Greenland's northern coast. In 2001, the Russian Federation, asserting that the formation was an extension of the Eurasian continent, submitted its extended shelf claim to the CLCS. A year later the claim essentially went into limbo with the commission taking no action other than recommending further research by the Russian Federation (RF). An expedition in 2007 returned material, the analysis of which was said (by the Russian Resources Ministry) to confirm that the crustal structure of the ridge "corresponds to the world analogues of the continental crust" — therefore part of the RF's continental shelf. To draw an analogy, the RF was offering geologic DNA evidence to support a geographic/legal claim. This was also the expedition that gained some notoriety by placing (and leaving behind) a Russian flag, planted in the seabed at the pole; tongue-in-cheek perhaps, but with deeper long-term intent?


Back in Washington, the Inhofe group seems to frame its opposition around such claims as: "it sets a legally binding standard aiming to protect marine wildlife, etc"; since it doesn't threaten navigational rights, it's not needed; that it threatens national sovereignty, etc., etc., none of which presents examples that support a compelling argument against ratification.


Depending on the study, there are varying estimates of hydrocarbon deposits north of the Arctic Circle — one estimate is that it holds up to 20 percent of the undiscovered oil and gas in the world. The construction of the vast infrastructure that will be required for resource exploration, recovery, storage and shipping lies just over the horizon. The trans-Arctic shipping routes (NWP and NSR) that will be (are) opening and the infrastructure they will require — navaids, SAR, etc. — are still in the development stage. A maritime watershed is developing not only for through transit but for cargo originating and delivered in the region, especially when the Siberian waterways become linked to European and East Asian markets. 


Meanwhile, the U.S. Senate slumbers.

By Professional Mariner Staff