Saturday, August 11, 2007

Oil in the Arctic Circle

[This article is dated Aug 8 at CNN Money.]

(Fortune Magazine) -- It's an irony that even Al Gore might appreciate. As global warming causes the polar icecaps to recede, potentially oil-rich seabeds are being uncovered beneath the Arctic Circle in the suddenly navigable -- and drillable -- territory.

The area has long been thought to hold substantial reserves: Some say up to 25% of the world's undiscovered oil and natural gas may lie below the thawing ice.

Russia will put an undersea flag near the North Pole and may extend a legal claim to the area. CNN's Mary Snow reports.

But as the countries bordering the Arctic hammer out who can lay claim to what parts of the ocean, one major player is missing: the U.S. Why? Because of an unlikely spat between Big Oil and a group of Republicans over the UN treaty that governs who can claim rights to those waters.

Back in 1982, the United Nations Convention on the Law of the Sea went into effect, a treaty that defined ocean boundaries and set up regulations for ship traffic. The U.S. signed the treaty in 1994, but the Senate refused to ratify it, opposing the idea of UN sovereignty.

But what was then just a diplomatic absence is now seen as a lapse in judgment that could cost billions of dollars. Under Law of the Sea, countries are entitled to control any waters above landmasses that extend from their continental shelf.

If the U.S. were to claim that entitlement, it would gain Arctic territory roughly half the size of Alaska. But since the U.S. is not a party to the treaty, many worry that it won't have a say before the North Pole is sliced up for good.

What's in the way? A small but vocal group of Senate Republicans who are fiercely opposed to participation -- and the notion that UN panels could trump U.S. control over resources.

Frank Gaffney, a former Reagan advisor and current president of the Center for Security Policy, has called the treaty the "most egregious transfer of American sovereignty, wealth, and power to the UN." Senator James Inhofe (R-Oklahoma) has said he'll use "whatever means it takes" to keep the U.S. from joining the treaty. That included leading the charge to kill a bill that surfaced for ratification in 2004.

While there has been little commercial Arctic exploration so far, the potential is huge. London-based consultancy Wood Mackenzie estimates that at least 166 billion barrels of oil and gas might lie undiscovered in the near-shore Arctic. There could be much more in areas closer to the North Pole.

In potential U.S. territory alone there could be 15 billion barrels. With global reserves falling, any sizable field would be a prize.

An Arctic land grab is already well underway. In early June, Russian scientists claimed they found evidence of 70 billion barrels of oil and natural gas reserves on the Lomonosov Ridge, a huge rock formation that extends through the North Pole from Siberia to Greenland.

Russia has slapped a claim on nearly half the Arctic -- a territory of half a million square miles -- and granted a monopoly to its own companies to exploit it. Denmark is crying foul, saying it, too, has rights to the ridge.

The U.S. could play a huge diplomatic role in any negotiation, and without its involvement, many feel the borders will never truly be settled. "It makes exploration a lot more risky," says Paul Kelly, former general counsel at drilling firm Rowan Cos., since bankers, he says, won't put up the money for ventures in "murky waters."

The oil lobby has been working furiously to push past its Senate detractors -- and it is making some unlikely bedfellows in the process.

Lobbyists representing companies including Exxon Mobil, Chevron, and ConocoPhillips are allying with environmental groups, who want UN protection for Arctic wildlife and ecosystems, as well as with the U.S. Navy, which says it won't be able to patrol the Arctic effectively without the rights the treaty provides to the territory.

The consortium got a big boost in May when President Bush came out in support of ratification, breaking ranks with many members of his own party. New hearings in the Senate Foreign Relations Committee are set for this fall. Should things go well, a bill could hit the Senate by the end of the year.

Advocates are hopeful. "We've been pushing for this for years," says Brian Petty, a drilling industry lobbyist, "and I think now we'll finally get over the goal line."

The region's recent turf wars, they say, may give the issue a new sense of urgency. "The Russians have made their claim," says a committee aide. "If we don't act fast, we're missing the boat."

[Russia has already planted the aforementioned flag. There may be disputes over this region in the future. A snippet:]

Other northern countries are getting into the race. Canada, which has the second-longest Arctic coastline, is currently conducting a $70 million project to map the seabed on its side of the Lomonosov Ridge, in what experts suggest is a prelude to making its own submission to the UN. Earlier this month Canadian Prime Minister Stephen Harper pledged to build eight new ice-capable patrol ships and a deep water Arctic port to defend Canada's stake.

"Canada has a choice when it comes to defending our sovereignty over the Arctic: We either use it or lose it," Mr. Harper said. "And make no mistake, this government intends to use it."

Norway and Denmark (because of Denmark's claim over Greenland) are also possible entrants. The US could claim Arctic territory adjacent to Alaska, but is hampered by Congress's failure so far to ratify the Law of the Sea Convention.

Three years ago, US lawmakers were already warning of the detrimental impact of failing to ratify the Convention. In a May 2004 speech advocating ratification, Sen. Richard Lugar (R) of Indiana – then chair of the Senate Foreign Relations Committee – told his audience at Washington's Brookings Institute that the UN "will soon begin making decisions on claims to continental shelf areas that could impact the United States' own claims to the area and resources of our broad continental margin."

He specifically mentioned Russia's ambitions, as well.

"Russia is already making excessive claims in the Arctic," said Senator Lugar. "Unless we are party to the Convention, we will not be able to protect our national interest in these discussions."

The Associated Press reports that Congress is considering an $8.7 billion budget reauthorization bill for the Coast Guard that includes $100 million to operate and maintain the nation's three existing polar icebreakers. The bill also authorizes the Coast Guard to construct two new vessels. According to a report from Russian press agency Novosti, a senior US official said Tuesday that Congress would ratify the UN Convention on the Law of the Sea in order to join a commission to examine Russian and other nations' claims to Arctic territory.

The US Coast Guard says that an icebreaker, the USCGC Healy, will leave Seattle for the Chukchi Cap above the Artic Circle, for research purposes, on Aug. 6.

[PS, Inhofe is a racist bigot and a religious ideologue as well as a moron.]

1 comment:

Informed Lawyer said...

Due Process Demands That UN Law of the Sea Treaty Be Thoroughly Vetted

Among the most blaring omissions in the statements coming forth from the US military in support of the UN Law of the Sea Convention is a thorough analysis of the treaty's more than 45 environmental articles, regulations and protocols, and numerous other standards that could be used to diminish the military's right to freedom of navigation/ innocent passage.

In addition, recently released reports have described how the US military will be increasing its reliance on private contractors more than 50% during the next 5-10 years. The myriad activities of private contractors designing, formulating, producing, testing, delivering and deploying technologies for military application are highly unlikely to qualify for exemption as 'military activities’ under the UNCLOS. The military brass is quite confident, at least publicly, that they could unilaterally determine what is or is not a 'military activity' for purposes of qualifying for the treaty exemption. And, they believe that they could fit all such activities neatly under one ‘military activity’ tent. They are unlikely, however, to succeed in exempting their supply chains.

Furthermore, the environmentally-obsessed EU member states have 27 votes for every 1 vote cast by the US at the UNCLOS Secretariat meetings, which the administration has been less than forthcoming in explaining.

Lastly, there remains a quaint notion within US constitutional law which is commonly referred to as 'due process'. In the context of the Senate Foreign Relations Committee hearings that are now underway, this means transparency and a thorough publicly aired review. Unfortunately, this has not yet occurred considering that a number of house and senate committees possess oversight jurisdiction which they have yet to exercise to review the various dimensions of the UNCLOS that have not been considered in light of new international environmental law developments since the previous UNCLOS hearings. The American people are entitled to know from their elected representatives how this expansive treaty which will reach into US sovereign territory (land, internal waterways and air above) and into the US regulatory and free enterprise systems, will affect Americans’ pocketbooks, small businesses and daily lives.


The ‘LOST 45’ UN Environmental Restrictions on US Sovereignty

By J. William Middendorf II* and Lawrence A. Kogan**

During the past six months, a number of former and current administration officials have declared their support for the UN Law of the Sea Treaty (LOST), the largest environmental regulatory treaty in the history of the world. Based on their recommendations, President Bush, as did his predecessor, former President Clinton, agreed to resubmit the LOST to the US Senate once again for ratification.

These officials, many of whom are giants in the conservative movement, have argued that LOST ratification would ensure America’s national security, economic and technological vitality and positive standing within the international community. Regrettably, these claims are very much overstated.

Granted, US LOST ratification would signal our acceptance of long-established customary international freedom of navigation principles, as the US Navy and Coast Guard have asserted. However, the general rule of “freedom of navigation/innocent passage” which the administration relies upon as the chief justification for binding America to this treaty has, over time, been eroded and diminished in scope by the LOST’s more numerous environmental regulatory exceptions.

While the LOST contains only two articles (38 and 87) that refer expressly to the right of “freedom of navigation” and ten articles (17, 19, 21-25, 45, 52 and 211) that refer expressly to the related right of “innocent passage”, there are at least 45 environmental articles in LOST Part XII, plus countless others in Parts V, VII, IX, XI, XII, and XIII and Annexes I and VIII that effectively limit those rights. In addition to these ‘LOST 45 plus’, there are also two recent International Seabed Authority environmental regulations and at least one entire environmental protocol related to the LOST (the LOST UN Migratory Fish Stocks Agreement) which European nations have already employed to create ‘marine protected areas’ that even further burden such rights. Collectively, these overwhelming environmental restrictions on American sovereignty obligate the US government and private US citizens to preserve and protect the ‘marine environment’ and its ‘living resources’ against all kinds of possible human-induced ‘pollution’. This includes pollution generated from water, land and air-based sources (e.g., carbon dioxide), even those located within US sovereign territory, that could directly or indirectly impact the global marine environment. In other words, US courts would be compelled to interpret these LOST 45 plus over our own environmental laws should the US ratify the LOST. Tragically, very few US lawmakers are familiar with these LOST provisions or their relationship to numerous other UN environmental treaties.

Hence, following LOST ratification, US military and commercial shippers would no longer be able to rely on the right to freedom of navigation/innocent passage as an absolute right. Indeed, a growing number of foreign governments and commentators hostile to US interests have argued that, under LOST “the right of unlimited freedom of navigation” is subject to “the obligation to protect the [marine] environment”. This LOST reality was previously corroborated by the Clinton administration’s Oceans Report Task Force organized by former Vice President Al Gore. In light of the LOST’s failure to define exempt ‘military activities’, the 1999 report then warned that the domestic and international environmental obligations imposed by the LOST were being manipulated by foreign governments and environmental activists so as to “conflict [with] the US military’s ability to test, train, exercise, and operate in the marine environment”.

These findings should come as no surprise to this administration. Thirty years prior, the “father of the [first] Law of the Sea Conference”, Malta’s former UN Ambassador Arvid Pardo, declared that, “the new law of the sea must be based no longer on the notion of ‘freedom of the seas’ but on a new concept, the Common Heritage of Mankind (CHM).” Thereafter, Tommy Koh, Singapore’s former UN Ambassador and President of the third Law of the Sea Conference, described the LOST as “a global constitution for [the world’s] oceans” drafted in the image of the UN charter.

This administration, presumably, is also aware that CHM was originally a central planning (socialism)-based wealth redistribution mechanism rooted in the Cold War era. And, with a little homework, it should have discovered that, since 1994 (when former President Clinton submitted to the US Senate LOST amendments that allegedly addressed former President Reagan’s objections), CHM has evolved into a prominent instrument of ‘soft’ socialism within the European-dominated UN environment and sustainable development (UNEP/SD) programs. CHM now encompasses the legal obligation erges omnes – ‘of all to all’, which serves as the primary UNEP/SD rationale for the global governance of the earth’s biosphere. In the context of the LOST, CHM mandates the establishment of a UN-sanctioned global environmental conservation trust that would protect and preserve, through strict non-science and non-economics-based international and national regulations, all human use and exploitation of the oceans and its living and nonliving organisms.

Consequently, following LOST ratification, US commercial businesses including the US military’s industrial and technology suppliers could no longer undertake design, manufacturing, processing, disposal and delivery activities within the US in reliance upon current US federal laws. This is especially true, now that President Bush has forwarded, once again, for Senate ratification four other related UN environmental treaties that would require yet further amendments to existing US federal chemicals legislation.

More importantly, each of these other UN treaties contain the same non-science and non-economics-based European environmental legal principle embedded within the LOST 45 plus, which this president and his predecessor only barely succeeded in defeating at the World Trade Organization (WTO). That legal nostrum is the ‘standard-of-proof diminishing, burden of proof-reversing’, ‘guilty-until-proven-innocent’, ‘I fear, therefore I shall ban’ ‘hazard (not risk)-based’ Precautionary Principle (PP). Unfortunately, the LOST dispute settlement mechanism, with its emphasis on adjudicating environmental rather than trade issues, is unlikely to yield the same positive results as those the US secured at the WTO.

In fact, US LOST ratification would provide other LOST treaty parties (especially those in Europe) with a greater ability to employ their unscientific PP to gradually undermine US military, economic and technological superiority. Such nations, for example, could more easily preclude the US military’s civilian technology and industrial supply chain from designing, producing and delivering effective technologies, products and processes that maintain US military preparedness. They also could disrupt US military logistics by relying upon environmental hazard rather than risk assessments to restrict the otherwise “innocent passage” of vessels operated by the US military’s many private shipping contractors. This is extremely likely to occur where US cargoes passing through navigational straits and territorial waters of other LOST parties include alleged ‘hazardous waste’ and/or ‘dangerous’ substances such as liquefied natural gas, oil, coal, chemicals, computers, electrical and electronic hardware, and perhaps, even genetically modified foods, feed and seed. And, such LOST parties could also cite the existence of hypothetical environmental hazards to limit, on PP grounds, the innocent passage of US nuclear-powered military vessels.

The lack of truth and public transparency surrounding the LOST are hard to ignore. By ratifying the LOST, the US would unleash Europe’s PP and subject US military and economic sovereignty to eventual UN dominance and control. Therefore, the US Senate must publicly review the LOST’s largely hidden environmental regulatory agenda BEFORE it renders its advice and consent. Only by exposing the LOST’s deep dark caverns to the light of day in public hearings convened by the various congressional committees possessing oversight jurisdiction, as had recently occurred in connection with the illegal immigration bill, would the US be able to avoid such a disastrous outcome. Anything less would shortchange Americans and violate their cherished US constitutional right to due process.

* Ambassador J. William Middendorf II previously served as US ambassador to the Netherlands, the European Union and the Organization of American States and as Secretary of the US Navy.
** Lawrence Kogan is president and chief executive officer of the Institute for Trade, Standards and Sustainable Development (ITSSD), a nonpartisan, nonprofit, international legal research and educational organization, and has advised the Bush administration concerning Europe’s use of the precautionary principle to dominate international economic affairs.