By Mark P. Nevitt
(Center for Ethics and the Rule of Law | Sept. 30, 2020) Climate change is transforming the Arctic in new and dramatic ways. According to the UN Intergovernmental Panel on Climate Change (IPCC), the Arctic is warming two to three times the rate of the rest of the planet. And this month’s “United in Science 2020” report found that the Arctic sea ice extent was the lowest on record for July. Due to a pernicious feedback melting loop, melting permafrost, and the continual possibility of cataclysmic “green swan” events, worldwide sea level rise will be further impacted by Arctic events. What happens in the Arctic does not necessarily stay in the Arctic.
In addition, climate change is both opening maritime trade routes and offering the possibility of natural resource extraction on the Arctic’s continental shelf. It is also creating a whole new operational domain for the world’s militaries.
Unlike Antarctica—which is also being dramatically impacted by climate change—the Arctic lacks a comprehensive, Arctic-specific treaty. The Arctic region is largely governed by the United Nations Convention on the Law of the Sea (UNCLOS), the increasingly important work of the Arctic Council, and a hodgepodge of laws and bilateral agreements. But climate change is increasingly stressing this legal and policy framework.
UNCLOS, aptly described as “A Constitution of the Oceans,” remains one of the most comprehensive and complex international law treaties ever negotiated. It will take on increased importance as the Arctic adjusts to its 21st century climate reality. The United States, however, remains the only Arctic Council member that is not party to UNCLOS. This is short-sighted and contrary to U.S. national security, environmental, and economic interests. Despite continued U.S. intransigence on law of the sea ratification, a remarkably diverse coalition of American national security experts, environmentalists, and business interests support the United States becoming a party to UNCLOS. To be sure, the United States accepts UNCLOS’s key navigational provisions as binding as a matter of customary international law. But as a non-party to UNCLOS, the United States increasingly lacks a “seat at the table” on core law of the sea matters and cannot avail itself of its adjudicatory bodies. It also cannot take advantage of key UNCLOS provisions, such as submitting information to establish the outer limits of Alaska’s continental shelf. Climate change’s opening of maritime trade routes and the possibility for natural resource extraction reinforces the need for the U.S. Senate to provide its advice and consent on this critical treaty …
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