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UNCLOS-er than ever; why the U.S. should learn to stop worrying and love the law of the sea

Robert Ballard, the oceanographer best known for discovering the wreckage of the RMS Titanic, has embarked on a ten-year project to map the U.S. underwater continental shelf. With a total combined area of 4.69 million square miles, the U.S. has the largest underwater holding in the world. These underwater seabeds are estimated to contain abundant natural resources critical to defense and national security interests:  oil and gas reserves, and large mineral deposits of gold, copper, zinc and other commodities.

From 1982, signatories of the United Nations Convention on the Law of the Sea (UNCLOS) were granted sovereignty to the areas extending to 200 nautical miles from their coasts. These exclusive economic zones (EEZ) grant countries restricted access and exploration rights to marine resources, including anything extracted from underwater continental shelves. Countries can make additional claims under UNCLOS if it can be proven that the continental shelf extends beyond the 200-mile boundary of the EEZ. Earlier this month, Canada announced the intention to submit a claim under UNCLOS for exclusive access rights to an additional 1.07 million square kilometers of Arctic seafloor.

Preliminary studies indicate the U.S. extended continental shelf totals close to one million square kilometers – an area approximately double the size of California, with a large portion in the Arctic Sea north of Alaska. As knowledge of these areas expands through ambitious mapping projects such as Ballard’s and other joint-government projects, the U.S. is likely to encounter increasingly tense negotiations over disputed areas. Without the adjudication mechanism offered by UNCLOS, the U.S. may be forced to settle disputes through diplomacy, or alternatively, assert the claims unilaterally. Given that all other Arctic Council member countries have ratified UNCLOS, the U.S. should make UNCLOS ratification a key security priority moving forward.

Presidential Proclamation granted the U.S. sovereignty over its marine holdings rather than international law. In 1983, President Reagan signed Proclamation 5030, declaring sovereignty over the 200 nautical miles extending from the continental U.S., as well as its overseas territories and protectorates. This came a year after the U.S. declared it would not ratify UNCLOS, as Part XI was seen to be unfavorable to free-markets and counter to U.S. security interests.

Despite support from both the Clinton and George W. Bush administrations, ratification was unreachable as a result of Congressional resistance. However, a recent support has been driven by recognition that UNCLOS could be in the national interest in a variety of areas. Supporters cite the need to establish additional mechanisms to counter China’s increased unilateralism in the South China Sea, while securing rights for U.S. commercial and naval ships, amongst others.

Perhaps most importantly, ratifying UNCLOS would provide a legitimate mechanism for adjudicating national claims to extended EEZs, especially in contested areas such as the Arctic. Sea. Secretary of Defense Chuck Hagel recently released the Pentagon’s Arctic Strategy, which prioritizes the ability to detect, deter, prevent and defeat threats, allowing the U.S. to exercise “sovereignty in and around Alaska.” However, any claims that extend beyond the 200-mile nautical limit would be negotiated without the legitimacy of the diplomatic channels offered through UNCLOS. Although the U.S. has partnered with Canada in mapping the continental shelf in the Beaufort Sea, bilateral negotiations may become increasingly difficult if U.S. is forced to engage non-allied countries in resource disputes.

Critics maintain that UNCLOS would commit the U.S. to a dispute-resolution mechanism that has traditionally been unfavorable to its interests. Further, UNCLOS has been recognized as customary international law, thereby encouraging adherence to its provisions, regardless of ratification. Others suggest the U.S. should continue to pursue unilateral options, engaging partners through traditional diplomatic channels only when necessary.

With the largest continental shelf in the world, a lot is at stake for U.S. interests moving forward. By some estimates, there are more than 100,000 underwater mountains containing a variety of strategic and valuable minerals within the borders of the U.S. EEZ. However, these areas – and those just beyond the 200 nautical mile limit – remain unexplored. As the areas are mapped, UNCLOS provides the legal framework for the U.S. to make claims on maritime territory within the extended continental shelf area. This would allow U.S. companies to apply for exploration licenses in the deep seabed where no country has sovereign rights.

Ratifying UNCLOS is not without its costs. Much like any international treaty, countries are forced to adopt provisions that may be counter to national policies, while relinquishing a degree of sovereignty in exchange for a body of law with no enforcement mechanism. However, with such a vast, unexplored continental shelf, the U.S. could leverage UNCLOS to extend maritime claims beyond the 200-mile nautical limit.  Asserting these claims under the auspices of international law would allow for easier dispute resolution with partner countries, while providing access to valuable extractive resources. Without UNCLOS, the U.S. may be forced to adopt an increasingly aggressive unilateral stance – a decision that is likely to prove counter to long-term national security interests.


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