A lot of your work deals with the UN Law of the Sea Convention, so let's†start by discussing†what this agreement is, and how it affects certain countriesí claims in the Arctic, such as Canada, Russia, the United States.

Yes, so itís worth talking a little bit about what the UN Convention of the Law of the Sea is. The odd part is that itís not a United Nations document per se, itís an international agreement. †Currently 166 countries and the European Union have, by their own domestic laws, ratified and committed themselves to the treaty.

The United Nations does not have any formal oversight role over the treaty; the UN was a provider of good offices for its negotiation. This is a multilateral treaty between these countries. It has been described by some as the constitution of the oceans. Thatís not officially true, but it is very comprehensive. It deals with navigation rights, fishing rights, and has a framework for environmental agreements. Perhaps its most controversial agreement deals with rights to conduct mining operations on the deep seabed floor. But, the point is that itís a very broad based agreement.

As it relates to the Arctic, the five members of the Arctic Council, of which the United States is one, determined in the Ilulissat Declaration that the Law of the Sea Convention would be the governing international law of the sea for the Arctic. There was talk of having a specific comprehensive framework treaty to govern legal rights in the Arctic. Ironic of course, because the United States is not a member of the Law of the Sea Convention, but is one of the five members of the Arctic Council.

The United States has not ratified or implemented any laws to comply with the Law of the Sea Convention. What are some reasons that it has not done so?

Before talking about the reasons, itís useful to talk about the exact posture that the United States is in vis-ŗ-vis the Law of the Sea Convention. We have signed it. There are two processes within the United States that are important for treaties. One is for the executive branch to actually sign the treaty. And then second key step is for the United States Senate to ratify the treaty. So the US in fact signed the treaty in 1994, but the Senate has never ratified it. What that means under the terms of international law, is when a country signs a treaty, it incurs an obligation to act consistently with the object and purpose of the treaty.

We find ourselves in this unusual situation where for two decades the executive branch has been acting in accordance with the Law of the Sea Convention and the US government conducts the day-to-day operations in accordance with what the treaty says, in many respects. So, itís very unusual because we have bipartisan presidential administrations, from Ronald Reagan to Barack Obama, who have been acting consistently with the treaty.

Why has the Senate not ratified the treaty? I think itís a complex answer, but it boils down into a couple of simple propositions. The first one is that those who have opposed the treaty believe that the United States will give up sovereignty by joining the treaty. Combined with that, the argument that goes with it is the idea that we can do whatever we need to do anyway; we donít need to be a part of this treaty to enjoy the benefits of the oceans, and therefore why would we bind ourselves to the multilateral agreement when we can do whatever we want? I think that argument is flawed, but that is the argument against joining the treaty. In the United States Senate, there are quite a number of senators who support ratification but there has never been a critical mass to achieve whatís required, two-thirds plus one, for ratification.

Youíve mentioned that you believe that the status quo is a flawed approach, so what are some of the consequences of continued non-compliance, particularly vis-ŗ-vis other countries with interests in the Arctic region?

I would say that the most specific risks to the United States in the Arctic are both policy and legal risks. Itís fairly complex, but the primary legal risk is because the United States has not acceded to the treaty, we are therefore unable to take advantage of the mechanisms that have been set up under the treaty for establishing our sovereign rights in the extended continental shelf. Under international law, every country has the right to exploit the minerals of its ocean floor out to 200 miles. If you have an overlap with your neighbor, you have to negotiate where the boundary is. The general proposition is every state can go out to 200 miles. However, nations may have a national seabed that goes beyond 200 miles. The natural elongation of a nationís continental mass may go out beyond 200 miles, and the law typically has not been settled on what are the rights beyond that limit.

The Law of the Sea Convention has set up a way to address a nationís rights to its extended continental shelf. There is a fairly elaborate system that has been set up. Basically, that system provides that nation a way to submit a claim to an international body, called the Commission on the Limits of the Continental Shelf. If that body endorses that claim, then that claim beyond 200 miles has international recognition. The United States cannot submit a claim or pursue it in that process, because we are not a member of the Law of the Sea Convention.

So what does that mean? What it means is that all of the resources in the Arctic that the United States may enjoy beyond 200 miles, we donít have international recognition that they belong to us. If a US company wants to attempt to exploit minerals and natural resources beyond 200 miles, then it does so at some risk. It does so not knowing whether or not it has clear legal title to the natural resources beyond 200 miles. What that does to companies who will be required to invest millions, if not billions, of dollars in these projects, is that theyíre hesitant to do it. And they shy away from it, or else they join with a nation and submit themselves to the national jurisdiction of countries that have made the claim, and have recognized international title in these areas.

There are some who oppose the treaty who say none of this matters, that the Law of the Sea Convention does nothing but create legal confusion and all the United States has to do is take what it wants. I think there are a variety of reasons why this would create undue risks. Those risks create a vicious circle of US companies not wanting to take the risk, therefore they donít do anything.

Another goal of the United States and other countries in the region is not only to develop resources in the region, but also to enact safeguards to protect the environment and fragile ecosystems in the Arctic. Are there any ways that the United Statesí approach to the current legal regime affects its ability to implement environmental regulations?

The fact that we are not part of the Law of the Sea Convention, does not prohibit us from entering other agreements with like-minded countries to achieve environmental protection. I donít hold myself out as an expert on the environmental conventions in the Arctic, but in theory if we wanted to enact environmental regulations, and the other Arctic nations were willing to do it, we can do that. Thatís not really the problem.

The problem is when the Law of the Sea Convention creates an institution in which other countries buy in and invest in it from an administrative, procedural, and legal point of view, and that system is designed to allocate rights and benefits, and then the United States says ďwe donít want to be a part of that, but we want to enjoy all those rights and benefits anyway.Ē Other countries have agreed to a system in the Arctic for allocating resources, much like nations could join together to protect the environment. And the system for allocating resources happens to be embedded in the Law of the Sea Convention.

Also, in regards to potential conflicts between countries, there are major powers attempting to gain more access to the region. In particular, countries such as Russia and even China. Are there ways in which these two countries pose challenges to the current legal regime?

I would differentiate from the outset between Russia and China. If I were Russian, I would point out that Russia is an Arctic nation. As a Russian, I would argue that I have every bit as much right to the Arctic as the United States does, or any other members of the Arctic Council.

China is different in the sense in that is not an Arctic nation. China has looked at the Arctic and said, understandably, that this is an important region, weíre an important country, and we want a seat at the table. To some extent, the Arctic Council has accommodated that by making China and India, among others, observer states for Arctic Council proceedings. This is a way in addressing Chinaís desire to be included. Russia and China are differently situated in that way.

To date, cooperation has been good in the Arctic. This is a generalization, but by and large the consensus of world opinion is that all of the Arctic nations have acted responsibly so far. Itís always risky to make a sweeping generalization of goodness, but the major actors have been well behaved in the Arctic. Will there be an increasing militarization of the Arctic, or will a particular country attempt to assert an advantage to the disadvantage of others, which is outside the legal scope of whatís been set up to govern the Arctic? I donít know.

This is one of the many reasons why itís important for the United States to accede to the Law of the Sea Convention, because the Law of the Sea Convention is an internationally respected and regarded commitment to the rule of law and to a system of stability in the oceans. The United States remains the worldís preeminent maritime power, and if we want to contribute to the stability of the region, a very significant thing we can do is to join this treaty. If we want to leave doubt and ambiguity about what the legal regime of the Arctic ought to be, then we should stay out of the treaty. Obviously, we donít want the latter. That is one of the fundamental flaws in the arguments of people who do not want the United States to join the treaty. They ignore the fact that we are contributing to the very instability that we donít want to see in the international maritime environment.

I think that going forward, if China wants to make arguments that we need a separate treaty for the Arctic and that the Law of the Sea treaty really isnít the right framework for the Arctic, Exhibit A for China would be the fact that the United States hasnít joined. Thatís one of many reasons I think we ought to. I donít believe that itís a cure-all. I donít believe that if we accede that will solve. But I think that it will help. †The risks that are associated with joining the convention are dramatically overstated.

One of the concerns that you raised was that other countries might seek to change the terms of agreement for these conventions, †and that the United States wouldnít have the political †leverage in order to preserve its †interests. Do you think there are any trends that point to †attempts to change the Law of the †Sea †Convention, and how they would affect US †interests?

Iíve written a little bit about non-Arctic contexts, in †which I think China in particular has already been †attempting to change the rules that have been †established by UNCLOS. In the Arctic, I canít identify any particular thing that China might want to change now. I think that for the moment, they have been content to just try to gain influence in the political processes of the Arctic.

I think the main risk in the Arctic to the United States is that we are not participating in the existing structure, which everybody else is following and which I believe will soon be considered to be binding international law. I think those risks may not be manifest tomorrow, or next week, or even next year, but I do think that we are putting ourselves at significant risk with respect to our extended continental shelf resources. I would say that today, by not being part of the convention and by not getting in line to submit our claims, we are simply delaying our ability to enjoy benefits with legal title. The process for submitting a claim to the Commission on the Limits of the Continental Shelf is laborious and takes years to submit and perfect the claim and then to have it reviewed. We are waiting on line if we were to join the treaty today, it would be years from now before we could get our claim considered, and itís only going to get worse by our delay.

One final questionóin regards to the Law of the Sea Convention as well as your discussion of the Arctic region, what are some general takeaways for the United States, in terms of maritime diplomacy as well as international law?

The macro point that I would make is that we are living in a world right now that is a contest between stability and instability. International law does not guarantee stability, but it helps. It is a framework and a tool for achieving stability. The United States has an interest in that stability. As we relearn on a daily basis, some important actors have an interest in instability.

As you focus the question on the oceans, I donít think thereís any serious debate that the United States joining the Law of the Sea Convention could contribute to the stability and order of the worldís oceans. To the extent that we do not contribute to it, then we contribute to the interests of coastal states. These states, led by China, will begin to assert coastal state sovereignty over the oceans and limit the United Statesí ability to conduct the commercial and security operations that it needs to conduct, and we stand to lose. I think thatís the takeaway. If thereís an international agreement that we have thought about carefully and want to enter, then we ought to be a part of it. The Law of the Sea Convention is such an agreement.