By MEAD TREADWELL
For many years now, the five Arctic Coastal states have conducted bathymetric and geologic work in the Arctic Ocean region toward what some observers have –-alarmingly but falsely — called a competitive “land grab:” the extension of national sovereignty outside the 200-mile Exclusive Economic Zone.
A process for claiming these huge subsea lands was established by Article 76 of the United Nations Convention on Law of the Sea (UNCLOS). In the Arctic, making those claims requires nations to determine where the continental shelves of Eurasia and North America end deep in the Arctic Ocean, and to provide scientific evidence of whether certain features – the famous Lomonosov Ridge comes to mind – are an extension of Greenland, Russia, or both.
U.S. claims can be made outside the Arctic Ocean, too – any place the continental shelf slopes seaward gently enough to extend more than 200 miles from shore. But the Arctic is where claims have required the most expensive science and will have the greatest impact on the size of U.S. territory.
Here’s a bit of a primer – from someone involved in Law of the Sea, research, Arctic policy, and business issues over the last few decades – about what’s at stake. My disclaimer: I’m not a lawyer, but the opportunity of new territory on the scale of other giant acquisitions (not quite the Louisiana Purchase, but big nevertheless) has had me pushing for the U.S. to prepare a claim for new lands in the Arctic, both as a citizen and as a sometime government official. Given a long stalemate over UNCLOS ratification in the U.S. Senate, I –and many others – have been tantalized that the U.S. might be able to make this claim even without ratifying and acceding to the UNCLOS treaty.
- What’s at stake?
At stake in this mapping effort is many square miles of submerged land, and control of undersea territories and resources for economic use, or if the claiming country sees fit, for preservation in its natural state. In America, as Chair of the U.S. Arctic Research Commission from 2006-2010, I told Congress that a land area “twice the size of California” could be available for a U.S. claim, offshore parts of our country where the continental slope is gentle and extends far offshore. Congress responded by funding the U.S. extended continental shelf research effort, coordinated by several agencies including the Department of State, the Department of the Interior’s USGS seismic experts, and NOAA’s bathymetric experts, initially about $80 million, and ultimately over $100 million.
- How did we go about determining the U.S. claim?
The legal authorization in UNCLOS is complicated. After describing the science and bathymetry that country should use to set its limits, it says that a country should submit its proposed delimitation to a UN Commission on the Limits of the Continental Shelf for review and recommendations, and that “the limits of the shelf established by a coastal State on the basis of these recommendations shall be final and binding.”
For the U.S., an ad-hoc interagency committee oversaw the mapping effort. Our State Department has an official geographer. Dr. Larry Mayer, a former U.S. Arctic Research Commissioner, led the effort at the University of New Hampshire to generate the water-depth maps used to delineate our claim. The U.S. Coast Guard icebreaker Healy served as the primary platform for charting and seismic efforts in the Arctic, and our U.S. research team often cooperated with Canada for research of that country’s Arctic claim along the U.S.-Canada maritime border.
Russia, which may have been the earliest Arctic nation to submit a proposal to the Commission on Limits of the Continental Shelf, initially sought almost 45 percent of the Arctic Ocean floor. Our vessels may have done some fact-checking in the areas of Russia’s claim close to our border, but if we had complaints, we didn’t have standing at the UNCLOS forum to voice them (or even to submit our own claim.) Some observers suggested Russia’s expansive claims near Alaska help, rather than hurt the U.S.: the more eligible continental shelf land Russia delineated near our maritime border coming north from Asia, the more land the U.S. could claim on our side of the border, even if the land was emanating from Asia.
- Can the U.S. extend its borders without ratifying and acceding to UNCLOS?
The United States has not ratified UNCLOS, primarily because four decades of disagreement in the U.S. Senate has prevented it. It appears that the International Seabed Authority, an extra-sovereign regulating and taxing authority that shares revenues with all governments, is the source of many objections to the treaty. Politicians of all stripes have told me, however, that making a claim for extended continental shelf is in the U.S. national interest, so when there is a will, there may be a way – even without ratifying the treaty or submitting our claim to the UN Commission on the Limits of the Continental Shelf. The Department of Defense, resource industry leaders, environmental NGO’s have advocated the research and mapping process which brought us to this point.
The U.S., for example, used to complain when nations extended their fishing limits out to 200 miles. When Congress extended the limits with passage of the Magnuson Act in 1976, and President Gerry Ford signed it, we did so unilaterally without ratifying the UNCLOS treaty, and other nations respected it and pulled their fishing boats until we licensed them. When President Ronald Reagan proclaimed the U.S. Extended Economic Zone in 1983, he cited international law – without specifically naming the treaty – as empowering him to do so. Those two actions may serve as precedent. Other nations, and some in our own country, may complain if our borders expand without review by the UN’s Commission on the Limits of the Continental Shelf, but since our maritime boundaries with Russia and Canada are fairly well established (Canada and the U.S. are still arguing about a 5000-square mile, pie-shaped parcel on our Beaufort Sea border, which is not an issue for the UN panel), a U.S. claim is solid until anyone with rights and standing will challenge it.
- As this happens, what should we do next?
When you get a big piece of real estate, it is time to establish a strategy of what to do with it.
As an Alaskan, I have seen the borders of my state change several times in my lifetime. Alaska, for example, was claimed by Russian conquest, without respect for aboriginal ownership by Alaska Native inhabitants. Russian colonists arrived in 1741. In 1867, when Secretary of State William Henry Seward negotiated the purchase from Russia, aboriginal tribes were not part of the negotiation either. Russian America was not to become an extension of Canada, then Great Britain’s colony, as Russia was fighting Great Britain in Crimea. Once the U.S. acquired this territory, it took several decades for Congress to pass Organic Acts, allow Alaska settlers to elect a territorial legislature. Native rights were sidestepped again.
Hard-won statehood in 1959 came with land transfers to the State of Alaska (103 million acres) and revenue sharing on most remaining federal lands (the rest of Alaska’s 365 million acres). It was the Alaska Native Claims Settlement Act in 1971 that returned 44 million acres to Alaska’s indigenous inhabitants. The 1976 200-mile limit came with a law which brought the States of Alaska, Washington, and Oregon into management of Alaska’s offshore fisheries. The Alaska National Interest Lands Conservation Act of 1980 also set new multiple management regimes up with Alaska Natives overseeing subsistence use of fish and game, and the State of Alaska, as large new federal enclaves — parks, wild and scenic rivers, and refuges — were established.
- Yeah, but what strategy should the United States use for our new offshore lands? If we claim it, what are we going to do with it?
Here are some suggestions for Congress, which should immediately examine the ramifications of this action. Whatever they do, they should also hear from coastal residents as even activity 200-plus miles offshore can affect people’s lives in coastal areas.
1. The Exploration Strategy: Remember Thomas Jefferson launched the Lewis and Clark expedition after the 1803 Louisiana Purchase extended U.S. territory to the Pacific. We should do more of the same in the Arctic. It took a lot of Arctic research to draw up the map of our claim; it will take more to know about the biological and geological assets we’ve acquired. What’s there? Bottom dwelling crab stocks? Critters low in the food chain challenged by ocean warming and acidification? Rare earth minerals? Hydrogen, pure or in hydrocarbon molecules in several forms? Shorter routes across the world for fiber optic cables? We need to know these things.
2. The Security Strategy: We don’t need a fort on this new territory. But international law clearly gives a coastal state authority to manage its seabed, even for internationally authorized pipelines and undersea cables. We are likely to secure and police this territory with assets under the sea, icebreakers on the surface of the sea, and airplanes and satellites overhead. Two Congressional hearings this past month have pushed again for new U.S. polar icebreakers.
New U.S. Arctic territory would include land in or near the Central Arctic where ten nations have signed on to the 2018 Central Arctic Fisheries Agreement. It was a US initiative with an initial fisheries moratorium in the Central Arctic Ocean, accompanied by commitments for monitoring and research. The Central Arctic agreement was perceived by some as an engraved Tiffany invitation to countries like China to establish a research presence in the region. U.S. extended continental shelf rights may allow our Coast Guard to “inspect” or police these research vessels if we limit their activity on the Ocean bottom. We also have a legally binding Arctic Science Agreement in place — and it can be hoped that any new U.S. Security Strategy following extended continental shelf claims does not block access to the Arctic Ocean bottom where international cooperation has produced much important knowledge on earth history, plate tectonics, even the origin of ocean bottom lands which led to this claim in the first place. Russia has, within its 200-mile EEZ, refused permission for important international ocean drilling programs, aimed not at finding oil but determining the history and structure of Planet earth.
3. An Intertwined Economic and Environmental Strategy: An executive proclamation to get this undersea territory for the U.S. could be matched with executive orders to deny any economic use of this land. Joe Biden, and Barak Obama before him, did their best to eliminate all hydrocarbon exploration on federal lands Arctic offshore forever. (Those decisions are being challenged in court.) Many groups want to eliminate seabed mining, shipping, fishing in the Arctic Ocean — often with good motives, but all before we actually know what we are setting aside. I would argue for a moratorium on moratoriums. I’d urge the U.S. to do the exploration strategy first. Environmental protection will be in place from day one, as federal law now requires an environmental impact assessment before almost any major federal authorized action in U.S. territory.
A second aspect of the economic/environmental strategy the US must consider is how and whether these lands are managed. We can assume the Department of the Interior would get a big new job, beyond the Outer Continental Shelf resources they manage at BOEM, the Bureau of Offshore Energy Management, or what NOAA’s National Marine Fisheries Service manages via regional management councils. Extended Continental Shelf doesn’t cover all fisheries — but it may cover bottom dwelling creatures in the same way it covers minerals. As well, siting of energy import/export port facilities more than three miles offshore of every coastal state is assigned to the Department of Transportation’s Maritime Administration (MARAD), but that authority is not currently active offshore of Alaska. For MARAD to permit these kind of facilities, the 1974 Deepwater Ports Act, as amended, requires an adjacent state to have a Coastal Zone Management Program in place, or in the process of being approved.
A third aspect of the economic strategy the US needs to consider is revenue and royalty and tax policy. Interaction with the policies, if not the rules of the International Seabed Authority will be an issue even though the U.S. does not have a seat. Federal law authorizes revenue sharing from OCS leases offshore some states, but not offshore Alaska. That issue could rise again as Congress absorbs these new lands into a management structure.
4. The Democracy Strategy: When the U.S. joined the UN, it promised as other colonizing nations did, to work to provide self-determination to colonies and territories. Alaska Federation of Natives head Julie Kitka often reminds us of this promise, as did the late Alaska Independence Party head Joe Vogler. Alaskans often complain that democracy is not served when decision-making on important lands and waters of its state is made very far from home. Will an extended continental shelf claim by the U.S. change that? It could rekindle arguments about revenue sharing, local and traditional knowledge input in decision-making, shoreside connections for oil, gas, or hydrogen export facilities. The Central Arctic Fisheries Agreement does reach back to include indigenous participation and consultation. Time will tell what Congress does on this issue, too.
Another question is whether this move will, ultimately, change the stalemate in the U.S. Senate on UNCLOS ratification. In the short-term, it will bring attention to the ratification issue once again, an issue President Biden championed during his Senate career. Another issue could also affect the political calculus: dissatisfaction with UNCLOS’ International Seabed Authority is rising across the political spectrum, not just coming from conservatives. As new undersea mining projects are considered, some ENGO’s are urging reform of that body –or even elimination of ISA, just as conservative opponents of UNCLOS have for decades.
5. The International Strategy: The U.S. has argued that it abides by the rule of law in international affairs, and a move to claim land unilaterally will raise some eyebrows. Could this move encourage China’s claims in the South China Sea, for example, that are of concern to the Philippines, Vietnam, and Japan? Could this move encourage greater cooperation on shipping in the Arctic, even though the claim only extends to the ocean floor, not the seas above it? As U.S. territorial lands move north, so does the U.S. border, and interaction with our neighbors will also likely increase – especially, for example, if one neighbor wants to mine for resources and another neighbor doesn’t. What fora – if not UNCLOS, where the U.S. is not at the table – would be the crucible? The Arctic Council? An extension of the Central Arctic Fisheries Agreement? Let’s see what the diplomats come up with.
Mead Treadwell is former Lieutenant Governor, State of Alaska; co-chair, Advisory Committee, Polar Institute; former Chair, U.S. Arctic Research Commission