The United States outside the law of the sea

The United States has developed quite a reputation for non-participation in some of the most critical international treaty discussions in history. Washington's refusal to ratify the Kyoto protocol has generated a lot of criticism. As well it should. But America's decision not to engage in the U.N. Convention on the Law of the Sea should be just as troubling.

The discussion around mineral rights triggered by the possibility that the melting ice may provide access to the Arctic's valuable mineral deposits will likely get the U.S. to pull a seat up to the Law of the Sea table. (GW)

The Law of the Sea: Climate Change in the Arctic and Washington

By Bart Mongoven
Stratfor Public Policy Intelligence Report
March 29, 2007

Leon Panetta, the chairman of the U.S. government's Joint Ocean Commission Initiative, told a Washington audience March 29 that Senate ratification of the U.N. Convention on the Law of the Sea (UNCLOS) is a national imperative. Panetta, a former congressman and chief of staff to former President Bill Clinton, pointed to a number of concerns raised by the United States' nonparticipation in the treaty.

By speaking out, Panetta adds his voice to a growing chorus of politicians and interest groups that have decided that UNCLOS ratification should be a national priority. Ratification of the treaty has enjoyed general support among policymakers since the treaty was re-crafted in 1994 to meet U.S. concerns about sovereignty, but staunch opposition from conservative and libertarian senators has stifled ratification. The metaphorical tide is turning, however, as more and more conservative interest groups come to see UNCLOS as, at worst, a necessary evil.

Climate change and its impact on the Arctic is the most significant factor pushing UNCLOS ratification toward a tipping point. As the polar ice melts, a number of heretofore unimaginable situations have developed. These include the possible emergence of the Northwest Passage as a major shipping route and the fear that the newly accessible resources of the Arctic will spur significant battles over seafloor boundaries.

Outside is Better Than Inside?

The debate over U.S. UNCLOS ratification is a familiar one. It focuses on whether it is better for the United States to be inside a flawed, sometimes troublesome international system where Washington can exert power to minimize the damage the organization can do, or to remain outside such an organization, unfettered by the agreements others are making. Since the Reagan administration, the United States has generally followed the latter approach, one favored by politically conservative factions.

The emerging Arctic-related issues challenge this prevailing approach, however. Being outside UNCLOS has reduced U.S. ability to influence debates that are increasingly relevant to the country's primary interests. In response, a powerful coalition of industries, environmentalists and hawkish foreign policy groups and the Bush administration have aligned in support of the treaty -- though not yet in a coordinated manner. Traditionally conservative political groups are coming to view the price of nonparticipation as growing in relation to the sacrifices of signing on. As a result, entrenched interests aligned against the treaty are shrinking, and the question increasingly appears to be one of when UNCLOS will be ratified, not whether.

Treaty participation always has been a double-edged sword. By definition, treaties demand the abdication of some sovereignty. In return, countries get a seat at the table where the treaty's language is interpreted and refined. Because the reward is one of having power within an organization, smaller and less-powerful countries that otherwise have no voice in international affairs are strong boosters of international treaties. Powerful counties, conversely, lose power by joining treaty organizations. The reward for the larger players is the ability to tailor discussions and limit the range of options considered by the treaty parties. The use of power within a treaty is now most visible in Europe's new strategy on climate change, where the Continent is using its hegemony over the climate regime to adjust the treaty to suit its own long-term geopolitical needs.

The Shrinking Cap's Irony

Despite all the talk about climate change, the discussion has largely been about a theoretical problem: the effects of climate change. The actual warming of the planet until recently largely has been ignored. This is changing, however, particularly in light of the unexpectedly swift retreat of the ice cap near the North Pole.

The visible changes in the Arctic brought by global warming will have numerous implications. Most important, the Arctic will come to stand as a symbol of climate change, as visible evidence that the Earth is warming. Scientists and interest groups will battle strenuously over the question of how much of the warming is caused by human activities and about whether the warming is necessarily a bad thing. In all likelihood, most will come to see the Arctic as a symbol of the effect of human activities.

Those who view the melting polar ice as a symbol will doubtless see irony in the fact that the shrinking cap could make it cheaper to get to hydrocarbon deposits that were previously uneconomical to produce. A much-quoted study released in 2000 by the U.S. Geological Survey estimated that the unexplored Arctic contains as much as one-quarter of the world's remaining hydrocarbon reserves. In November 2006, however, the consulting firms Wood Mackenzie and Fugro released a report that argues the recoverable reserves are closer to 3 percent. Either way, the Arctic has lots of oil to exploit.

The Wood Mackenzie study asserts that three fields in the Arctic contain more than 10 billion barrels of oil -- Russia's South Kara Yamal Basin, East Barents Sea and the Kronprins Christian Basin off Greenland's northeastern coast. Alaska's North Slope has an estimated 6 billion barrels of oil equivalent in undiscovered reserves.

The rules defining which country has economic control over access to mineral reserves fall under UNCLOS. The treaty gives countries exclusive rights to resources within 200 nautical miles (nm) of their shorelines. In addition, if the continental shelf extends beyond the 200 nm limit, countries have exclusive rights to minerals either as far as the shelf extends or until the furthest of two absolute limits it met: 350 nm or 100 nm from the 2,500-meter depth line. The Arctic Ocean is very shallow, and the region's continental shelves extend far beyond 350 nm before an average sounding of 2,500 meters is met.

Though not a party to the treaty, the United States respects these definitions of mineral rights. By not being a party, however, Washington lacks significant influence on an important aspect of drawing the boundaries. Under the treaty, countries must submit claims of the extent of their continental shelves to the New York-based Commission on the Limits of the Continental Shelf (CLCS), a group that approves the science behind countries' continental shelf claims. Countries that ratified UNCLOS in 1994 or before have until 2009 to submit their claims. Unsurprisingly, countries' claims overlap throughout the Arctic.

From the U.S. perspective, the crucial issue is not merely the minerals that it can claim, but the potential for a major shift in the relative mineral wealth of Russia vis-a-vis its neighbors. A growing dispute between Russia and Norway is perhaps the most important of these. In 2001, Russia submitted its definition of its continental-shelf borders. Russia's claim is widely considered a significant overreach, since it claimed a shelf extending almost to the North Pole and it made territorial claims that impinged on oil- and natural gas-rich Norwegian claims (claims that have long been widely, if informally, acknowledged as belonging to Norway) in the Barents Sea. Though Norway's claim, released in late 2006, is in some ways more realistic, it appears to have been drafted to meet Russia's aggressive claim in kind.

With Russia increasingly aggressive in its use of oil and natural gas as a lever against Europe, it will fall in part to UNCLOS (and possibly the CLCS) to make decisions that will affect the reserves and production potential of Norway and Russia.

As it stands now, the CLCS is highly unlikely to support one side over the other, and it will throw the decision over the extent of continental shelf ownership to the two countries to negotiate, a resolution that bodes ill for Norway. Treaty advocates say this would not necessarily be the case if the United States were involved in the organization.

National security-focused advocates in the United States say the country's nonparticipation in UNCLOS shuts out Washington from being able to meaningfully influence how UNCLOS resolves the disputed claims. Industry, from oil and natural gas producers to their major customers in the chemical and transportation industries, also wants the United States to have a seat at the table.

A Transport El Dorado

A second area of contention is an emerging debate over the Northwest Passage. For centuries, a sea-lane from the Atlantic to Pacific across Canada's far north was the sea trade's veritable El Dorado, a mythical path to riches. The rapid melting of the ice north of Canada is awakening both Canada and the United States to the possibility that the Northwest Passage could soon come to be a feasible transit route, and with it a dramatic reduction in transport time from the North Pacific to the North Atlantic. Estimates are that easy passage along this route would save 5,000 miles for most transoceanic passages from Europe to the U.S. West Coast. And depending on its depth, it could allow for the passage of post-Panamax cargo ships that cannot transit the Panama Canal and currently must use the Suez Canal instead.

In addition, there is a burgeoning resource-related debate between Canada and the United States over mineral rights in the Beaufort Sea. This debate will fall to negotiations over the extension of the Yukon-Alaska border into the Beaufort, as UNCLOS allows for two types of definitions of territorial waters and each side in this case uses a different measure. A number of companies are strongly interested in developing hydrocarbons in the Beaufort Sea and plan to tap into the infrastructure being constructed in the Mackenzie River Delta. Expansion in Beaufort likely will move outward from the existing Mackenzie infrastructure.

Canada, which recently ratified the treaty, is in a position as a party to steer how the UNCLOS dispute-resolution system views the debates over transit both in the Northwest Passage -- where the idea of an "inland waterway" must be determined -- and over the resources of the Beaufort, where the two parties use different systems to define their mineral rights.

The Push for Ratification

U.S. backers of UNCLOS ratification have many other reasons for supporting the treaty. Panetta pointed out that it would provide a frame for U.S.-led international action on presently haphazard, fractured ocean protection and conservation efforts. By not signing the treaty, the United States has little or no influence on the rules relating to dwindling fish stocks. Mining outside the continental shelf is becoming more economical with technological advances and increasing mineral prices, but the United States is not a part of the International Seabed Authority, the organization that under UNCLOS awards blocks of the ocean for mineral exploration and collects royalties for deep-sea mining.

Though many arguments for ratification have long been in place, the emerging Arctic-related issues provide more than just additional arguments for joining UNCLOS -- they take support in the United States to a tipping point.

Opposition in the United States to ratification of UNCLOS has largely been based on arguments relating to U.S. sovereignty and the power of international organizations. Libertarian and conservative groups have said the treaty would reduce U.S. ability to move its Navy in waters heretofore understood to be open, international waters. Others have pointed to the International Seabed Authority, alleging it is too powerful since under UNCLOS it has made the power to explore deep-sea minerals no longer simply a matter of determining who was there first with a capability to exploit the resources.

Voices against ratifying UNCLOS generally have been politically conservative. With the Arctic issues rising to the surface, core conservative constituencies -- business and foreign policy hawks -- see significant threats emanating from nonparticipation and clear benefits to participation.

As the Arctic issues proliferate, however, conservatives and the foreign policy establishment are beginning to view sitting on the sidelines as increasingly disadvantageous -- as is the military. Gen. Richard B. Myers, chairman of the Joint Chiefs of Staff, has called U.S. ratification of the treaty "a top national security priority." With the military, conservative foreign policy establishment and business joining together in support of ratification, the remaining conservative voices cautioning against sacrificing sovereignty have become increasingly isolated.