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Arctic ownership and the US approach to the law of the sea

Could the question of “Arctic ownership” push the US to sign the United Nations Law of the Sea Convention? As we have reported earlier, and as frequently reported in the media (see e.g. this latest article at tampabay.com), the support for the ratification of UNCLOS is growing by the day. Not only are prominent members of the political establishment (i.e. from both parties) in the US advocating this step (see e.g. this statement by Secretary of State Clinton during the hearings in the Senate). But as the new director of the CIA and former chairman of the Oceans Commission Leon Panetta observed, “all major U.S. ocean industries, including offshore energy, maritime transportation and commerce, fishing and shipbuilding support U.S. accession to the convention.” So what is keeping the US? Originally one did not ratify UNCLOS – despite the US’s active participation in the drafting of the treaty in the 1980s – because one did not agree with the provision on deep seabed mining. However, this provision was modified upon the implementation of UNCLOS in 1994. So the question, why the US did not in 1994 or afterwards ratify UNCLOS, remains. One explanation could perhaps be the US’s reluctance to submit to the jurisdiction of international courts and tribunals. According to Art. 287 UNCLOS a State, when signing, ratifying or acceding to the convention, shall be free to choose one or more of the following dispute settlement mechanisms concerning the interpretation or application of UNCLOS: (a) the International Tribunal for the Law of the Sea (ITLOS); (b) the International Court of Justice; (c) an arbitral tribunal; (d) a special arbitral tribunal. So ratifying UNCLOS could, and should, be viewed by other States (parties) as a signal that the ratifying State is acknowledging dispute settlement by international judicial organs.

But could the US’s approach turn due to the fact that more and more States are referring to and seemingly relying on various judicial dispute settlement mechanisms, and the ITLOS in particular, as a tool to deal with conflicts regarding the Arctic area? A couple of days ago during a meeting with his Danish counterpart, the Russian Foreign Minister stated that “all problems in the Arctic, including climate change and reducing ice cover, can successfully be considered and resolved within specially created international organisations such as the Arctic Council”. He further stated that “as for possible disputed issues, we call for resolving them on the basis of the internationl law and through existing mechanisms of the law of the sea”. The Danish Foreign Minister Per Stig Moller said that his government agreed cooperation was the best way to solve disputes and that “international law should be used if there are contradicting claims from different states.” Hence it seems as if the US in the near future could be faced with the decision between trying to pursue its interests in the Arctic area in a predictable legal framework accepted by other Arctic States and the interest to stay out of the jurisdiction of international judicial bodies.

Of course, it should be remembered that UNCLOS is not the only legal mechanism that comes to mind as a tool to help peacefully settle potential disputes in the Arctic. As becomes clear from the above cited provision of UNLOS, e.g. the ICJ could just as easily be called upon to rule on a dispute involving the law of the sea, if the parties to a dispute prefer this body over ITLOS. But the advantage of UNCLOS is that it provides a predictable and stable legal framework that might just be what is needed in view of the growing importance of the seas and deep sea bed.

A side-note: the next ministerial meeting of the Arctic Council will take place in Tromso, Norway on the 28-29 of April.

2 Comments

  1. InformedLawyer InformedLawyer 28 May 2009

    See Lawrence A. Kogan, “Arctic Escapades: Can The Precautionary Principle Be Invoked via UNCLOS to Undermine U.S. Polar Interests?”, Presented at the National Defense University and Forces Transformation and Resources Seminar Transforming National Security Unfrozen Treasures National Security, Climate Change and the Arctic Frontier Laws of the Sea: Changing Air Land and Sea Routes, at pp. 175-179, at: http://www.ndu.edu/CTNSP/NCW_course/Arctic%20Security%20Compilation.pdf and http://www.itssd.org/Programs/KOGANIII.ppt .
    See Lawrence A. Kogan, “Polar Sea Ice Melts Away in Time for Antarctic Easter Surprise”, Institute for Trade, Standards and Sustainable Development (April 2009) at: http://www.itssd.org/Polar%20Sea%20Ice%20Melts%20Away%20in%20Time%20for%20Antarctic%20Easter%20Surprise%20III.pdf

  2. InformedLawyer InformedLawyer 28 May 2009

    For an interesting article that discusses this, and thus calls for the US Congress to adequately examine the vast environmental component of the 200 page UNCLOS in public transparent substantive hearings, See:
    “What Goes Around, Comes Around: How UNCLOS Ratification Will Herald Europe’s Precautionary Principle as US Law”, a pre-approved advance copy of an article that will appear within the forthcoming issue of the Santa Clara Journal of International Law, accessible on the Social Science Research Network (SSRN) at:
    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1356837.
    This article was announced within a press release that contains several embedded hyperlinks to articles discussing overlapping environmental regulatory issues between the UNCLOS and the North and South Poles. The press release is also available in annotated form. See:
    ITSSD: Americans’ Constitutional Rights Will Be Trampled Unless Congress Convenes Public Hearings on the UN Law of the Sea Convention, accessible at:
    http://news.aol.com/article/itssd-americans-constitutional-rights/464252?icid=sphere_searchsphere_news

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