Arctic Oil/Gas Aff Inherency
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- Only the concession of the plan solves—leads to the implementation of a joint development zone
- Plan solves tensions without having to resolve the actual maritime border
- There’d be no practical opposition—NAFTA reduces the legal and financial complexities
SolvencySolvency- Joint DevelopmentNo joint development zone now—the U.S. position makes it impossible to compromiseMenage 12 – MA Candidate (Kim K., “High Ideals in the High North, ¶ Interdependence in a Territory Sui Generis”, http://igitur-archive.library.uu.nl/student-theses/2012-0419-200416/Final%20version%20Thesis_K.K.Menage.pdf) During the negotiations, Canada was prepared to accept a compromise jurisdictional boundary along the¶ geographic coordinates put forth by the US, providing that the US would grant Canada similar boundary¶ concessions in the Gulf of Maine and off the Strait of Juan de Fuca.¶ 258¶ ¶ 255¶ Ibid., p. 85.¶ Canada also suggested a shared ¶ access hydrocarbon zone in the Beaufort Sea that would be largely located on the American side of an ¶ agreed boundary, as "co-operative sharing of trans-boundary resources would take the sting out of any accommodation on the boundary."¶ 259¶ This was a critical precondition for Canadian flexibility as any other¶ option would place the Trudeau government in the politically undesirable position of having to defend an¶ agreement that favoured American maritime jurisdictional interests in the North over those of Canada,¶ with nothing to show for it. Although economic access rights would not fully satisfy the Canadian Inuit ¶ Land Agreement requirements, they could have contributed significantly toward securing the agreement ¶ of the Inuvialuit people to a new boundary treaty.¶ The United States approached the Beaufort Sea maritime boundary and accompanying shared access¶ zone issues with an altogether opposing perspective. US officials firmly insisted that the equidistant¶ principle applied to delimitation of the Beaufort Sea, and that Canada should accept the American¶ position.¶ 260¶ The US has consistently put forth a position based on the 1958 Continental Shelf Convention¶ which, despite not having ratified it, it interprets as customary international law, as well as criteria¶ established by the ICJ.¶ 261¶ In so doing, the US insists that the boundary must be arrived at using ‘equitable¶ principles’ and argues that it follows an equidistant line to the northeast of the 141st meridian. In order¶ for the US to accommodate Canada in the Gulf of Maine and off the Strait of Juan de Fuca, it would also¶ have had to depart from its official international legal position. The Cutler team staunchly believed that¶ compromise would be viewed as predominantly favouring Canadian interests and that it would not stand a¶ chance of being politically supported both in the interagency process, and by Congress. Moreover, while¶ intent on reaching agreements on all outstanding boundary disputes, the United States was opposed to¶ any kind of package-deal. "As a first principle," David Colson confirmed, "we were not in favour of linking¶ one boundary settlement to another [...] we did not want to give something away for the sake of simply¶ gaining a concession on another boundary issue."¶ 262¶ The US proposal did not include forthcoming¶ boundary accommodations on any of the other three outstanding maritime boundaries, and thereby¶ offered no reasonable quid pro quo.¶ US officials were also unwilling to recognize the 141st meridian as laid down in the 1825 and 1867¶ treaties as applicable for the purposes of delimiting maritime boundaries. As we have seen in the¶ previous chapter, this is quite understandable as the sea was terra communis omnium at the time the¶ treaties where made and maritime borders where unheard of! However, how can the US dispute the ¶ application of the 1825 treaty to one maritime zone, when it has already accepted that, in effect, the very ¶ same treaty defines the maritime boundary with in another, namely its western border with Russia? ¶ Camille Antinori observed that “The United States is virtually saying that the same treaty that delimits a ¶ maritime boundary in the west does not delimit a maritime boundary in the east.”¶ 263¶ Finally, freedom of movement by indigenous peoples for the purposes of hunting and fishing is already ¶ quietly tolerated in the northern portions of the land territory and along the coastline between Alaska and ¶ the Yukon Territory, which could have formed a precedent for shared economic access.¶ 264¶ The US and Canadian legal positions are long standing and mutual cooperation between Ottawa and ¶ Washington was ultimately not forthcoming due to unbridgeable historical differences. In political terms, ¶ the joint mandate of the respective bargaining delegations had been too ambitious, and so was gradually¶ reduced in scope with substantive attempts to resolve the Beaufort Sea boundary being cast aside. The ¶ US and Canada both prohibited any work in the disputed zone until the border was resolved. According to¶ Christopher Kirkey, “the existence of an interdependent relationship, coupled with differing national¶ economic, political, and legal positions, best explains why a neutral outcome was produced by¶ negotiations over outstanding Canada-U.S. Beaufort Sea issues.”¶ 265¶ In this analysis however we must say ¶ that as both states had just as much to lose, and both states where equally basing their claims on either ¶ faulty or unratified legal bases, Canada was in fact engaging in impressively ‘Cooperative action’ by ¶ offering to yield to the US border claim in the form of a package deal (1), while the US staunchly rejected¶ any compromise (‘Disruptive diplomatic exchange’) (-1). Plan fixes all previous attempts at compromise --- Past attempts at a joint development zone have failed due to lack of unilateral compromise—the plan takes advantage of the changing status quo to reverse the moratorium in the Beaufort SeaBaker and Byers ’12 – professors of political science at the University of British Columbia (James S. Baker and Michael Byers, also experts on Artic affairs and international law, Department of Political Science at the University of British Columbia, “Crossed Lines: The Curious Case of the Beaufort Sea Maritime Boundary Dispute”, Ocean Development & International Law, 43:1, 70-95) Canada and the United States sought to resolve the Beaufort Sea dispute along with their other maritime boundary disputes in the late 1970s. 20 Canada indicated a willingness to approach the disputes as a package, indicating that it would trade losses in the Beaufort Sea for gains elsewhere. 21 Additionally, the parties investigated the possibility of setting up A Joint Development Zone. 22 Neither side was ultimately willing to compromise its legal position for fear of prejudicing its approaches to other delimitations. 23 Therefore, the negotiations subsequently focused on the most pressing boundary dispute: in the Gulf of Maine. The two countries referred the Gulf of Maine dispute to the International Court of Justice. 24 Nevertheless, the Beaufort Sea dispute has remained well managed, with both countries adhering to a de facto moratorium on exploration in the disputed area. 25 It is only recently that three significant changes have led to renewed efforts to resolve the boundary dispute. The first significant change concerns the imperatives of the process for establishing sovereign rights over the extended continental shelf. With Canada having ratified UNCLOS in 2003, it is supposed to make a submission to the CLCS by 2013. Although there are options (discussed below) for proceeding with a submission in the absence of an agreed maritime boundary, a resolution of the dispute would provide the cleanest possible basis on which the CLCS could work. The second significant change concerns rising oil prices and the inevitability of rising natural gas prices as well. Although the price of oil dipped during the global recession of 2008–2010, it climbed back above US$100 per barrel in February 2011. 26 Just as significantly, many experts believe “peak oil”—the point at which world demand exceeds remaining reserves—will soon be achieved, if it has not been already. 27 As readily accessible sources of oil and gas are exhausted, petroleum companies are increasingly turning to more difficult-to-exploit reserves: in the Alberta tar sands, for instance, and increasingly the Arctic offshore. The extraordinary financial commitments made in 2006–2008 to obtain exploration permits in the Beaufort Sea are a harbinger of things to come. The final significant change concerns the realization that the areas of continental shelf in the Beaufort Sea probably extend much further than had been previously thought. Consequently, extending the existing U.S. and Canadian legal positions into the area beyond 200 nautical miles creates a radically new bargaining environment, with the Canadian position conceivably favoring the United States and the U.S. position favoring Canada. In short, what appeared to be a zero-sum negotiating situation might now offer an opportunity for a creative trade-off. The probable overlapping claims to the extended continental shelf entitlements was cited as a central reason by an official from the Canadian Department of Foreign Affairs and International Trade in February 2010 for a renewal of the effort to resolve the Beaufort Sea boundary dispute. 28 Then, in the Speech from the Throne in March 2010, the Canadian government signaled its desire to “work with other northern countries to settle boundary disagreements.” 29 This was followed by a public invitation to open negotiations specifically on the Beaufort Sea boundary, delivered by then foreign affairs minister Lawrence Cannon in a speech in Washington, DC, in May 2010. 30 By August 2010, when Cannon released Canada’s “Arctic Foreign Policy Statement,” which reiterated the commitment to resolving boundary disputes, at least one meeting with U.S. officials had already taken place. 31 Only the concession of the plan solves—leads to the implementation of a joint development zonePetkunaite ’11 – master’s candidate at CUNY (Dovile, “Cooperation or Conflict in the Arctic? UNCLOS and the Barents and Beaufort Sea Disputes”, The City College of New York, June 2011, http://digital-archives.ccny.cuny.edu/gallery/thesis/2011SpSs13.pdf) It is common in maritime boundary disputes for both parties to advocate the use of completely different methods regarding division of the area. It complicates the dispute settlement process, as both parties are unwilling to accept each other’s proposals. Therefore, a need for alternative delimitation criteria arises. This thesis claims that the United States and Canada would benefit the most by settling the dispute bilaterally. The case of the Gulf of the Maine proved that relying on the third party to resolve the dispute can result in an outcome that is not totally satisfactory for either party. Taking into consideration the uncertainty about the techniques that the ICJ or an arbitrator might use in dividing a resource rich area, it is highly unlikely that both parties would leave the final say on the Beaufort Sea boundary to an adjudication process. As a result, the United States and Canada should analyze the negotiations that led Russia and Norway to cooperate and finally sign an agreement. Parties have to realize that without making concessions, it is impossible to reap benefits. A flexible approach and concessions made by both countries are needed when the issue of the natural resources is at stake. One possible solution to end the dispute is to adopt a modified equidistance line, which will be based on a “median line” but adjusted so that an equitable result would be reached. 266 It would acknowledge both parties‟ claims: the equidistance line favored by the United States and the nature of Canada‟s coastline as a “special circumstance” preferred by Canada. Both countries will be neither clear beneficiaries nor significant losers. This type of delimitation was used solving the Barents Sea dispute, where both parties were granted approximately equal areas. The “joint development” concept may also be an option. Claimant countries would jointly explore, exploit, and have shared jurisdiction over adjacent borders. 267 This solution would allow both countries to share benefits equally and explore the region more systematically. Later this may lead to the final delimitation boundary as the resources deposits are explored, and mined. This option is mostly considered in the disputes involving natural resources, because in such cases parties to the dispute tend to be less flexible in defining the border line. 268 Canada and the United States have a similar culture and legal system; therefore, the option of joint exploration and exploitation might work for them. As was indicated before, Canada and the United States have already started a joint mission aiming at exploration. If both parties find this option acceptable, there would be several issues that will need to be resolved. 269 The parties will need to negotiate the boundary of the joint-development zone, define how the mining will be undertaken, and how it will be administered? Moreover, the issues of funding and profits or minerals division will need to be addressed. There might be some disagreements and tensions, but a step forward on cooperation would already have been taken. Plan solves tensions without having to resolve the actual maritime borderBaker and Byers ’12 – professors of political science at the University of British Columbia (James S. Baker and Michael Byers, also experts on Artic affairs and international law, Department of Political Science at the University of British Columbia, “Crossed Lines: The Curious Case of the Beaufort Sea Maritime Boundary Dispute”, Ocean Development & International Law, 43:1, 70-95) As McDorman explains, the “Beaufort Sea boundary dispute area has long been seen as a candidate for the development of some type of hydrocarbon joint development regime.” 139 Canada and the United States considered a type of joint development area for the Beaufort Sea when they conducted maritime boundary negotiations in the 1970s. 140 Joint management regimes of larger regional scope already apply in the disputed zone with respect to beluga whales and polar bears—though they involve the indigenous peoples on both sides of the boundary as well as the Alaskan rather than the Canadian and U.S. governments. 141 Joint development arrangements with respect to hydrocarbon resources have been a relatively popular solution to intractable overlapping maritime claims in some parts of the world. They can be adopted either alongside a final delimitation or in its absence. Three general types have been identified by Hazel Fox et al. 142 : • Model 1: A system of compulsory joint ventures between the States or their nationals; • Model 2: A joint authority with licensing and regulatory powers manages development of the joint development zone on behalf of the States; • Model 3: One state manages development of the joint zone on behalf of both with the other State’s participation confined to revenue sharing and monitoring. In reality, these models are pure types and there may be substantial overlap between them. Each also involves varying levels of delegation to joint bodies and harmonization of legislation as it applies to the joint development area. These issues are likely to be important to states that opt to negotiate some form of joint development arrangement, but regardless of the model, the difficulties of reaching agreement on arrangements are sometimes as significant as those involved in delimiting a final boundary. This situation is exemplified by the difficulties in setting up a “model 2” joint development zone between Thailand and Malaysia, which led to an 11-year hiatus between the signing of the memorandum of understanding that expressed a desire for cooperation and its actual implementation in a considerably watered-down form. 143 Joint development remains a possibility in the event that the parties simply cannot agree on the location of a final boundary, and perhaps even if they do. For instance, the 2010 Norway-Russia Barents Sea Treaty creates a system for joint management in instances where oil and gas deposits straddle the new boundary. 144 Although this type of arrangement is common where a boundary exists, this option might [also] be considered if the parties are, through negotiation, only able to reduce the size of any contested area generated by overlapping claims. 145 Finally, “model 3” might be a creative way in which Canada could uphold its commitments in the Inuvialuit Final Agreement. In short, Canada could gain rights to manage the southern portion of the disputed zone and simply pay the United States a proportion of the profits from exploitation activities there. There’d be no practical opposition—NAFTA reduces the legal and financial complexitiesBakers and Byers ’10 – professors of political science at the University of British Columbia (James S. Baker and Michael Byers, also experts on Artic affairs and international law, THE BEAUFORT SEA BOUNDARY DISPUTE: ¶ IDENTIFYING AND ASSESSING OPTIONS, 2-25-2010, http://byers.typepad.com/files/baker-byers-discussion-paper-25-feb-2010.pdf) Canada has always taken the view that some sort of compromise is possible in the Beaufort ¶ Sea. This view is strengthened by the fact that Canadian companies such as EnCana have ¶ already been operating, under U.S. licenses, in the uncontested U.S. portions of the Beaufort ¶ Sea. It is entirely conceivable that the same companies will obtain leases in the contested area ¶ once the legal situation is resolved. For better or worse, Chapter Six of the North American ¶ Free Trade Agreement created a common energy market between Canada and the United ¶ States and thus reduced the significance of sovereign jurisdiction over hydrocarbons. The ¶ extremely low royalty rates that will likely be accorded to Arctic offshore drilling also operate ¶ in favor of a compromise, since they reduce the potential financial losses associated with any ¶ concession. Directory: file -> view view -> Western Europe after wwii view -> Author study: paul fleischman view -> Qpa1 7ela study Guide view -> Arctic Oil/Gas Neg view -> November 1970 Approximately 150,000-500,000 deaths Bhola Cyclone Bangladesh view -> Grade Level: 6 Unit of Study: Caribbean glce view -> Citation: Duffield, Katy view -> Table of Contents Lesson # view -> Chinese Wind Energy Disad Download 2.43 Mb. Share with your friends:
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