Tuesday, July 7, 2009

US UNCLOS Accession NOT Necessary to Secure Vast Majority of U.S. Energy Needs, US Army War College Research Paper Finds; Amendment Preferred

March 2003http://www.dtic.mil/cgi-bin/GetTRDoc?AD=ADA497652&Location=U2&doc=GetTRDoc.pdf


By Lieutenant Colonel Alan L. Kollien

United States Air Force

U.S. Army War College Strategy Research Report

February 17, 2009


Rising temperatures and a corresponding icepack melt in the Arctic accelerates to levels not previously envisioned. The rapidly receding polar ice pack opens a new Arctic area of opportunity in ways not witnessed until this century. This emerging area of operations holds new economic opportunity recognized by many nations, but especially Arctic border nations rushing to stake their claims in the Arctic Ocean and its seabed. Despite the accelerating Arctic Rush and its emerging conflicts, the United States lacks a strategy to achieve its interests in the region. This paper provides the foundation for strategy makers to move toward an Arctic strategy. It discusses the major regional stakes and definesArctic strategic objectives in terms of the most recent executive Arctic policy directive. It examines options for a legal regime to frame the strategy and recommends a combatant command structure that incorporates a circumpolar perspective to maximize unity of unity of effort throughout the Arctic area of operations. In total, this paper aims to spawn vigorous efforts among U.S. leadership to rapidly design and codify a comprehensive strategy to achieve U.S. Arctic objectives.

…This paper aims to spark American strategists to build and codify an already “late to need” comprehensive Arctic strategy. It examines two factual cause and effect trends that illustrate the urgent need for this strategy. First, Arctic ice retreat measurements point to increased regional accessibility faster than scientific models predicted earlier this decade. That trend, in turn, encourages previously unforeseen economic, scientific and other activities on America’s increasingly exposed northern flank. The paper then identifies U.S. Arctic objectives (ends) based on the latest executive Arctic policy directive signed by the President. In light of the ends, it then proposes, analyzes and recommends two foundational ways toward an effective Arctic strategy. First, it proposes that the United States requires legal transparency and should strive for a common international legal regime to stake and defend its Arctic claims and interests. Second, it proposes that the United States requires unified command reorganization to eliminate seams and effectively execute a comprehensive Arctic strategy. When added to the growing body of literature regarding the emerging Arctic’s importance, this paper should embolden U.S. leaders to rapidly end the current Arctic strategy void. (pp. 1-2)

Arctic Legal Regime

The most pressing challenge the United States faces is choosing a way to legally stake and enforce its Arctic territorial claims in order to meet national security, homeland security and economic objectives as stated in the policy. (p. 5).

To achieve a common international legal regime, NSPD-66/HSPD-25 urges the Senate to ratify the United Nations Convention on the Law of the Sea (UNCLOS).23 However, an opposition group, including recently re-elected Senator Jim Inhofe (R-OK), believes ratification of the current convention gains little, but costs too much. Before determining legal regime options, strategists should carefully examine arguments from both sides of the UNCLOS issue to develop the necessary political consensus on complex national security issues.

Ratification foes for accepting the current UNCLOS treaty provide the following reasons, many with implications beyond the Arctic, to support their opposition. First, some UNCLOS provisions open new avenues for traditionally anti-U.S. environmental groups to affect U.S. policies through domestic or international court actions.24 Second, UNCLOS requires taxable licenses for companies seeking to harvest resources from the seabed beyond the 200-nautical-mile (EEZ), whereas companies may currently do so without a fee. Third, UNCLOS articles regarding intellectual property could force the United States to share some technologies with potential competitor or adversary states.25 Fourth, UNCLOS provisions govern the management of fisheries, overriding some management aspects of sovereign states.26 Fifth, UNCLOS’ definitions of internal and archipelagic waters as well as articles defining boarding and investigation may limit U.S. Navy and Coast Guard freedoms to an unacceptable degree, including within the northern Canadian islands.27 Some countries even seek to stake increased sovereignty claims within their EEZs by establishing Particularly Sensitive Sea Areas or Marine Protected Areas that legally compel naval and commercial vessels to avoid these areas.28 Sixth, in case of disputes, the United States should not submit itself to UNCLOS’ International Tribunal for the Law of the Sea.29 (p. 10)

24 Lawrence A. Kogan, “UNCLOS Alchemy,” November 2, 2008, linked from The Minority Report, http://www.theminorityreportblog.com/story/steven_foley/2007/11/02/unclos_alchemy_law_of_the_sea_treaty (accessed November 10, 2008).

28 Kogan, “UNCLOS Alchemy.”


...Ratification advocates believe that unless the United States ratifies the treaty, it will also lose the claims race for areas of the resource-rich Arctic and will lack representation in various United Nations committees designed to administrate the treaty’s broad enterprises. (p.11)

Energy companies currently op
erating on Alaska’s North Slope and in the Beaufort Sea who advocate UNCLOS ratification want to extend their drilling fields and exclusively secure the resources along, and eventually beyond, the continental shelf. Exemplifying their enthusiasm, Chukchi Sea leases fetched a record $2.6 billion at a February 2008 auction.35 UNCLOS provisions allow a nation to claim exclusive seabed mineral rights up to 350 nautical miles from its shoreline if its continental shelf extends beyond the current 200-nautical-mile EEZ (depicted for the United States, Canada, Denmark, Norway and Russia by the bold line in Figure 3). (p. 11). Nations must submit claims for co ntinental shelf rights beyond the 200-nautical-mile limit to the Commission on the Limits of the Continental Shelf (CLCS).36 Such claims must be submitted within ten years of treaty ratification. They may also apply for licenses to claim mineral resources beyond national limits in the deep seabed through the International Seabed Authority (ISA). (pp. 11-12).

However, the 2008 USGS data suggest ratification may not be necessary to secure the vast majority of U.S. energy interests. The majority of undiscovered oil and natural gas resources likely lie along the continen tal shelf, within nations’ current EEZs, rendering claims to the CLCS and ISA unnecessary to harvest those resources.38 T he Arctic Alaska province contains 30 BBO and 221 TCF of natural gas, all within the U.S. EEZ. The province also likely contains an undiscovered 5.9 billion barrels of natural gas. .liquids (BNGL). (p.12)

All total, the estimated sum of undiscovered energy in the province equals 72.77 billion barrels of oil and oil-equivalent natural gas (BOE).39 Claims submitted under UNCLOS provisions could increase the U.S. stake for resources in only one area, the Amerasian Basin province, to a limited degree. The USGS study indicates that 9.7 BBO, 56.89 TCF of natural gas, and 0.54 BNGL lie undiscovered in the province. However, the highest concentrations of these resources likely exist along the Canadian and U.S. (Alaskan) continental shelves. Compared to the 72.77 BOE suspected to lie within the Arctic Alaska province, 19.75 BOE likely lies within the Amerasian Basin. The vast majority of that 19.75 BOE lies within the Canadian and U.S. EEZs, therefore little remains available for the United States to claim.40 A U.S. claim submission to the CLCS to extend economic rights could increase total U.S. energy reserves, but only by a miniscule amount according to the most current USGS appraisal. Additionally, under UNCLOS, a claim beyond the current U.S. EEZ would require a license fee, making the scant amount of additional resources even less economically attractive.41 (pp. 12-13).

...The United States also needs to carefully measure the effectiveness of UNCLOS in its current form to meet U.S. Arctic policy objectives without jeopardizing other national interests and objectives abroad. Freedom of navigation issues, for example, put NSPD-66/HSPD-25 objectives at odds with its own recommendations. While the joint policy directive recommends ratifying UNCLOS, it also explicitly seeks to preserve U.S. freedom of navigation “rights throughout the world, including through strategic straits” and claims the “regime of transit passage” for international navigation through the Northwest Passage and Northern Sea Route.42 (p.13).

Canada, meanwhile, invokes U.N. rulings in other parts of the world to justify claiming portions of the Northwest Passage as internal waters.43 In this light, building the legal regime strategy block requires a cautious balancing act to maximize achievement of all U.S. interests.44. (pp. 13-14).

Having examined the UNCLOS arguments, it is time to analyze the three options that use UNCLOS as the basis for a legal regime. In Option 1 (Modification), the United States seeks to modify, then ratify the convention. In Option 2 (Ratification), the U.S. Senate ratifies UNCLOS in its current form. In Option 3 (Codification), the United States defines and codifies which provisions it treats as customary international law. (p.14)

Option 1, the most complex, requires modification submissions to the United Nations that may or may not prove acceptable to UNCLOS signatory nations. This process would likely be lengthy based on standard U.N. consensus building practices. The United States would require a special team of subject matter experts from each of the disputed topic areas to address all of the issues previously discussed. To gain greater bipartisan consensus, the team should also include knowledgeable representatives from Senator Inhofe’s and other ratification foes’ offices and appropriate legal experts. The team must thoroughly review all UNCLOS provisions questioned by ratification foes and then codify a comprehensive and detailed update proposal to the convention that will gain U.S. Senate support.

All six issues previously identified by ratification opponents need to be addressed by examining and, where required, amending UNCLOS articles. Fees and taxes listed in Article 82 require elimination for U.S. businesses to avoid unfavorable treatment with respect to businesses of developing nations. Transfer of technology provisions listed in Article 144 require modification to avoid mandates of U.S. technology transfer, .especially dual-use technology transfer, to potentially anti-U.S. or rogue actors. Articles 61 through 69 require modification to preclude sovereignty infractions regarding U.S. EEZ fisheries and marine life harvests. Articles 47 through 53 require clarification or changes in order to not limit naval vessels’ practices deemed vital to U.S. security. Articles 224 through 227 require review to ensure USCG and Navy operations are not unduly impeded, especially in an era of active counter-proliferation and increased piracy. Article 236 needs legal review to ensure, and perhaps broaden, USCG and Navy vessels’ immunity from UNCLOS legal provisions. Finally, Part XI of UNCLOS requires a thorough review and modifications to prevent international authorities, courts and tribunals from unduly overriding U.S. sovereignty.

If the team’s proposed adjustments, approved by appropriate U.S. authorities, prove acceptable to the United Nations, then the U.S. Senate should ratify the modified UNCLOS and the United States recognize all provisions as treaty law. This provides a common legal regime for all Arctic nations to stake claims and enforce the rule of law in this rapidly emerging region of importance. This option, though the most time consuming and potentially difficult to achieve, provides a path to minimum conflict and maximum international legitimacy. Fundamentally, it fully achieves all related U.S. Arctic policy objectives to the maximum extent possible. (pp. 14-15)

Option 2 requires U.S. Senate ratification of the current treaty, but may prove politically difficult to obtain because senate ratification requires 67 votes, and this support may not currently be available. If ratified, UNCLOS becomes treaty law common to all ratifying nations. Option 2 also maximizes the potential of U.S. energy interests in the Arctic, but cedes aspects of U.S. sovereignty throughout the world in some of its articles as mentioned earlier. While most U.S. government agencies recommend treaty ratification, political sensitivities as espoused by Senator Inhofe and his supporters may prevent or at least delay it. It remains to be seen if the 2009 presidential administration and congressional changes will overcome the opposition. (pp. 15-16)

Option 3 achieves most, if not all, U.S. economic objectives according to the most recent USGS data and protects U.S. sovereignty, but falls short of providing an international legal regime completely common to all Arctic states. The United States already treats most UNCLOS provisions as customary international law. This option maintains the status quo, but requires the United States to codify which UNCLOS provisions it recognizes as law and which provisions it rejects in order to provide legal transparency in lieu of a completely common legal regime. With Option 3, the United States continues to pursue all resources within its EEZ and operate abroad as it currently does without ceding sovereignty. It simultaneously pursues bilateral agreements with Russia and Canada to resolve its Bering Strait and Beaufort Sea disputes, respectively, with each nation.

This option potentially casts the United States as a “unilateralist” nation since it does not achieve the common legal regime championed by the United Nations and those nations who have already ratified the measure. It could reinforce a negative image among certain governments and anti-U.S. groups. For example, these actors may disparage the United States in the same manner they do regarding the Kyoto protocols. (p. 16)

While Option 3 does not create a common international legal regime, it does clarify America’s view and buys time to pursue Option 1. This transparency could alleviate potential conflicts regarding territorial and resource claims in the Arctic and naval freedoms throughout the world. At least other nations would know the United States’ position regarding every UNCLOS provision. Option 3 provides flexibility since it may represent the United States’ final position regarding UNCLOS or just fill the gap until achieving Option 1 in the future. It could be a steppingstone while seeking a politically acceptable option that better achieves a common legal regime. (pp. 16-17)

...Based on the preceding analysis, this paper recommends Option 1 (Modification). It provides the best solution using UNCLOS as a foundation to provide a legal regime for an Arctic strategy. It maximizes U.S. energy and sovereignty objectives at stake while achieving a common international legal regime that is politically acceptable. The other two options fall short.

Option 3 (Codification) nearly maximizes U.S. energy objectives while maintaining sovereignty, but fails to provide a truly common legal regime. In the interim, however, Option 3 could possibly be used to minimize potential conflicts while pursuing Option 1.

Finally, Option 2 (Ratification) maximizes U.S. energy interests and legal regime compatibility, but the expense of ceding sovereignty makes it politically unpopular and strategically inferior. It clearly provides the least favorable solution. In fact, Option 2 would likely hinder achieving some of the global objectives explained in NSPD-66/HSPD-25. (p. 17)


...This paper provides the foundation for strategy makers to move toward an Arctic strategy. It examines the major regional stakes primarily related to economic opportunities created by climate change. Using the newly approved Arctic objectives identified in NSPD-66/HSPD-25, it analyzes three legal regime options and two. combatant command options. It then recommends modifying UNCLOS to achieve a common international legal regime and modifying the UCP to incorporate a circumpolar perspective for maximizing unity of effort throughout this emerging region of importance. In total, this paper aims to spawn vigorous efforts to rapidly design and codify a comprehensive strategy to achieve U.S. Arctic objectives. (pp. 23-24)

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