New Arctic, New President?

January 21, 2009
Courtesy Wikimedia Commons

Courtesy Wikimedia Commons

The new president will spend the day attending a prayer service at the National Cathedral and later, meeting with his Joint Chiefs and economic advisers. As Barack Obama acclimates to the presidency, we’ll dip into the recent past.

Former President George Bush on Jan. 9 issued a presidential directive that refines U.S. national interests in the Arctic. The eight-page document took two years to finalize and is the first White House statement on national security and the Arctic since Bill Clinton was president, in 1994.

The directive emphasizes U.S. national security and energy interests in the area, particularly given the changing climate and the likelihood of increased human and commercial involvement in the region. The Bush administration also commended progress within the Artic Council — the body of nine nations and indigenous peoples that the outgoing president didn’t always please. Bush gave the Senate a final prod to pass the U.N. Convention on the Law of the Sea.

The week after the White House released the directive, the Joint Ocean Commission Initiative (JOCI) met in Maryland, to hash out recommendations for the new administration. Climate change and Arctic policy topped the list. How will the National Security directive affect, inform, or influence the new administration’s approach to this rapidly changing area of the world? Only time will tell.


New Warming, New Cold War

June 24, 2008

A confluence of events seems to have focused the heat of the new cold war on the arctic. It’s all hit high gear now with the recent Russian mission to put a flag on the sea floor under the North Pole…

A confluence of events seems to have focused the heat of the new cold war on the arctic. It’s all hit high gear now with the recent Russian mission to put a flag on the sea floor under the North Pole (like “placing a flag on the moon” said a spokesman for Russia’s Arctic and Antarctic Institute, reminding us of the cold-war inspired symbolism of putting an American flag on the moon). Suddenly, there is a surge of movement toward the pole in vessels flying the flags of the US, Canada and Denmark, as geologists, Prime Ministers, diplomats and scientists are all caught, willfully or not, in the hoopla. Larry Mayer, an American researcher leading one of these expeditions, who I’m quite sure honestly and truly was just finally getting long-awaited ship time, was put into the uncomfortable position of having to deny vehemently that this had anything to do with the Russian mission: “There’s no flag-dropping on this trip,” he said (I like the subtle whiff of scientific superiority to affairs of state in that one short line).

Outside of the amusing news that Russian TV broadcasts of the events were faked by inserting footage directly from Jame’s Cameron’s Titanic, the flag planting raises a number of issues. Specifically, warming, new technologies, and continually elevated markets for carbon fuel and minerals has opened the arctic literally and in the imagination of several countries with arctic borders. I’d guess the first “Eureka” cries of the new Arctic gold rush really started with the shocking reports of 2000 that the North Pole was ice free. The first highly publicized political machinations of this new arctic vision came during the Canadian elections when conservative candidate Stephen Harper ran in part on a Canadian sovereignty platform with specific reference to the Northwest Passage, an once mythical route over North America that has new significance with polar ice melting. Now that Harper is Prime Minister that unexpected Canadian saber rattling has continued:

“Our government has an aggressive Arctic agenda,” Dimitri Soudas, the Prime Minister’s spokesman, said Wednesday. “Economic development — unleashing the resource-based potential of the North; environmental protection_ protecting the unique northern environment; national sovereignty — protecting our land, airspace and territorial waters.”

And while the US and Canada often seem to clash over ocean issues, and still trade barbs on the Northwest Passage issue (including a recent failed diplomatic agreement between President Bush and PM Harper), they may find themselves needing to cooperate to claim the riches of the poles for North America. This all may play out in the court of the UN Convention on the Law of the Sea (UNCLOS).

Most directly UNCLOS plays a role because the treaty allows for individual states to lay claim to mineral resources within their national boundaries-typically limited to the 200 mile EEZ limit, but extending to the continental shelf break if it is shown that the shelf extends beyond the 200 mile limit. Thus, there is an inherent contradiction in Russian Foreign Minister Sergei Lavrov’s claim that, “The aim of this expedition is not to stake Russia’s claim but to show that our shelf reaches to the North Pole,” If the shelf indeed reaches the Pole, Russia has staked its claim.

There’s a hitch, though. The U.S. hasn’t acceded to UNCLOS. The George W. Bush administration, most major US industries, and a majority of the US Congress supports signing on (even some former Reagan State Department folks who spent their time on a world wide ‘diplomacy’ mission to scuttle UNCLOS have come around to its merits), but a few holdouts in the US Senate with strong anti-UN sentiments have thus far managed to put US accession on hold.

Balancing US Interests in the UN Law of the Sea Convention

June 24, 2008

By Lindsay Aylesworth

The Nicholas Institute for Environmental Policy Solutions has gathered leading experts on the UN Law of the Sea Convention to provide guidance in the ongoing debate over whether the U.S. should accede to the Convention. Rather than provide a complete summary of the Convention’s provisions, we highlight in this short paper three important considerations.

First, emerging territorial disputes over expanding Arctic waters, most recently highlighted by efforts by Russia to establish claims to mineral resources under the North Pole, will be resolved within the Convention framework by Convention signatories.
Second, concerns about the role of international tribunals in making decisions that affect U.S. military, economic and environmental protection interests have been addressed through changes made at the request of the United States.
Third, the United States would benefit from Convention provisions which help member nations balance the need to navigate freely for security and commerce with its need to protect its vast coastal natural resources.

Overall we find:

•    Arctic melting is creating a vast rush by several nations, including Russia, to claim navigation and resource rights around the North Pole.  Claims and disputes over these resources will be resolved under the Convention framework.  The best opportunity for the U.S. to achieve standing to make and counter such claims is through joining the Convention.
•    Major points of contention raised by the Reagan administration, related to sea bed mining, technology transfers to developing nations and representation on key committees have been resolved in the United States’ favor through negotiated changes to the Convention.
•    The Convention provides dispute settlement tribunals and arbitration panels.  The United States would have control over the type of dispute settlement body cases involving U.S. interests were brought before and would have significant input into the selection of the arbitrators on those bodies.
•    The Convention recognizes the competing interests of navigational freedom (for military and commerce) and coastal resource protection (for fisheries, oil and minerals and environmental resources) and attempts to balance them.  Perhaps no nation has more at stake in striking this balance than the United States which has both the largest claimed Exclusive Economic Zone (EEZ) and the largest blue water navy.
•    Support for accession to the Convention is surprisingly broad, including the Navy and Coast Guard, maritime industries, the White House, and private public partnerships such as the Joint Ocean Commissions Initiative.  At the same time, opposition to the Convention has narrowed to an ideological position based primarily on mistrust of UN-based treaties.

To read the full article:

Balancing US Interests in the UN Law of the Sea Convention

Round 2 Law of the Sea Senate Hearing Controversial

June 24, 2008

By Lindsay Aylesworth

A short synopsis of the second Senate Foreign Relations Committee meeting regarding the Law of the Sea Convention.

Despite the fact that in the first hearing, the Department of State, Navy, and Defense, fully supported ratification of the UN Law of the Sea Convention, the second round of panel hearings provided a brief showcase of the tense debate around the Law of the Sea, as two out of the seven witnesses called before the Committee vehemently opposed the treaty.
The second senate hearing on the UN Convention of the Law of the Sea began much as the first, citing widespread support for the treaty across all sectors. Senator Menendez (D-NJ) opened with a statement asking his fellow senators to “listen to the experts”. Senator Lugar (R-IN) echoed his statement and cautioned that this treaty has been in operation for many years and that it will go forward as the basis for international maritime law regardless of whether or not it is ratified by the United States.

Arctic Issues:
The UN Law of the Sea Convention is not the only way to solve Arctic conflicts according to one witness, Mr. Gaffney, President of the Center for Security Policy. His interpretation is that the Arctic conflict is a border dispute and US interests can be more favorably served to deal with these borders disputes in other forums such as the Arctic Council or bilateral treaties. With Russia’s effort to prove its sea floor and thus continental shelf extends over half of the Arctic Ocean, undoubtedly the US will want to put in its own claim.
Currently the extension of a country’s continental shelf falls under the Law of the Sea Convention and the authority in determining the validity of extension claims is vested in the Commission on the Limits of the Continental Shelf. Although Gaffney claims that the Arctic Council is one way to resolve Arctic conflicts, the Arctic Council has no authority to extend a country’s continental shelf. A bilateral treaty could be possible but since the other Arctic States have agreed to Law of the Sea, their claims will be affirmed or denied by the Continental Shelf Commission- a commission in which the US currently has no voice. A law professor, Mr. Oxman, who also testified before Congress, stressed the importance of being a member to the treaty. He argued that in order to ensure the US has a “seat at the table” when future rights of the treaty are modified and to protect US interests concerning jurisdiction in the Arctic, the US needs to sign onto the Law of the Sea Convention.

Threats to US Sovereignty
Much of the opposition to the Law of the Sea Treaty comes from fear that the treaty will threaten US sovereignty. It is important to keep in mind the inherent nature of any international law treaty; in order to sign onto the treaty a state must make some concessions and some view these concessions as threats to sovereignty. Much of the testimony in opposition addressed these concerns.

Arbitration and Dispute Settlement:
The main objection to the treaty claimed to threaten US sovereignty regards the procedures for arbitration and dispute settlement. Gaffney and Smith, President of the Competitive Enterprise Institute, argue that because mandatory settlement procedures are not just for navigation rules but also to any ocean-related disputes that the US would find itself undoubtedly before one of several international tribunals. If the disputing parties cannot agree on which type of dispute resolution tribunal, the dispute automatically goes to an arbitral tribunal whose decisions are binding.
Gaffney, Smith, and Senator Vitter (R-LA) are concerned about the selection procedures to determine the judges for the tribunals because there could be a situation where the majority of tribunal judges were from countries not friendly to US interests. The US is allowed to decide at least on arbiter for the tribunal and in some instances two. But on a panel where majority decisions are made with 5 judges, this decision could be “a recipe for disaster” according to Vitter (R-LA) because the decisions are binding. Oxman confirmed that if the two countries requiring arbitration could not agree on arbitrators, three would be appointed by the United Nations Secretary-General, possibly ending in a panel with 4 out of 5 arbiters from countries not friendly to US interests.

Military Actions: Are they Exempt?
Despite the military branches being in favor of the treaty, Gaffney, Smith and Senator Vitter (R-LA) are concerned about UNCLOS regulating military actions. All three oppose the treaty because they say the treaty does not specify who is to determine what actions fall under military exemptions and it is unclear whether intelligence gathering would also fall into this category. This issue is important because military actions are exempt from dispute resolution procedures.  Mr. Oxman’s response to this issue was to restate the letters of support from the military and intelligence communities. He further clarified the issue by explaining that as part of the ratification process each country is allowed to declare certain interpretations of the treaty. The most common one in regards to law of the sea is the declaration that only the home country can determine what constitutes a military action.

Veto Power
Questions were raised by Senator DeMint (R-SC), Gaffney and Smith, about the validity of US veto power on the Council of the International Seabed Authority. The treaty guarantees the US a seat on the Council, but Gaffney and Smith argued that this in no way guarantees the US the right to veto issues pertaining to economic use of taxes or other financial matters. Senator DeMint (R-SC) argued that it was naive to assume that other countries will follow treaty rules even if the US does and that would put the US at a disadvantage. Mr. Oxman refuted all claims by referring everyone to section 161.8.D that assures procedures in the Council of a financial matter are conducted by consensus, thus giving the US veto power. This issue arises as important because it has to do with taxes to be paid from mining operations that take place in high seas areas, and can be extrapolated to future concerns about the Arctic.

Land Based Pollution: a backdoor to Kyoto?
The Land based pollution clause was also a contentious issue in this hearing as it was in the first. The testimonies of Mr. Gaffney and Mr. Smith conflicted with Mr. Oxman’s on the outcome and interpretation of this clause, and questions from Senator Corker (R-TN) and Senator Vitter (R-LA) attempted to clarify these discrepancies. In the first hearing on Law of the Sea several senators expressed concerns that the land based pollution clause of UNCLOS in essence would be a way to force Kyoto regulations on the United States because the treaty reads that any input to the oceans, including those man made as well as those that come from the atmosphere, are viewed as a pollutant. Carbon dioxide is emitted via the burning of fossil fuels into the atmosphere, and CO2 from the atmosphere is taken up by the ocean, critics fear this section of the treaty would be a way to force the US to comply with the Kyoto Protocol.
The testimony of Mr. Smith supported this argument. His interpretation of this clause is that the UN will “look upstream” at causes of marine pollution and pass regulations binding the US to international standards.  He cited an example of a legal battle over a MOX fuel plant in the UK and the battle before an UNCLOS tribunal between the UK and Ireland over issues regarding radioactive waste. Senator Corker (R-TN) tried to confirm this issue with Mr. Oxman, the professor of law, asking if the language of UNCLOS could be applied to global warming issues. Oxman disagreed with the testimony by Smith quoting the article directly, Article 207-Land Based Pollution, and stated that in an international law context the language in the treaty is designed to encourage member states to regulate pollution. He emphasized that it does not include hard obligations, binding standards or dispute settlement. Senator Vitter (R-LA) further questioned Oxman, as to why there was a section of the treaty labeled enforcement with respect to pollution from land-based sources. Oxman clarified this point stating that similarly this part of the treaty encourages member states to enforce land based pollution regulation. Since the US does have land-based marine pollution regulations and that the US enforces those rules, this section has satisfied the requirements set out by the treaty. Therefore signing onto the UN Law of the Sea Convention would not change current US land-based marine pollution regulations or enforce harsher standards.

Hearing Proceedings Flawed
Gaffney and Smith both raised objections to the process by which the Senate was gathering information about the Law of the Sea Treaty. They both objected that the number of witnesses called to testify against the treaty were far less (2 of 11) than those called in favor. Both witnesses also complained that the first hearing did not have any witnesses that were against the treaty. Gaffney called the procedure “ hasty, ill-considered and lethal” because of its bias in witnesses in favor of the treaty. Gaffney and Smith also resented the time allocation (of 5 minutes) to present their arguments against the treaty, although this is the same amount allotted for all witnesses. Due to Gaffney and Smith’s objections, Senator Vitter (R-LA) requested that the hearings be continued at least one more session to allow more groups opposed to the treaty to testify. Whether or not this will actually happen is up to Senator Biden (D-DE), the head of the Foreign Affairs Committee.
The second round of the Senate Hearing on the UN Law of the Sea Convention drew out several of the conflicting views on what ratification of the hearing would mean. Senator Isakson (R-GA), apparently frustrated with the he-said, she-said manner of the second hearing proceedings, requested that Gaffney and Oxman both write statements supporting their positions and submit them to the Committee. It is unknown if the Senate Committee will indeed hold a third round of testimonies on the issue, however urgency in addressing the UN Law of the Sea Convention should not be forgotten. As claims in the Arctic and extension of coastal states continental shelves are left up to the procedures outlined in the Law of the Sea Convention, the United States will not have a “seat at the table” to discuss the nuances of these procedures or to stake a claim for its own extension.