Frozen but Desirable: Examining the Legal Regime of the Arctic

On 15 December 2014, Denmark submitted a territorial claim to the United Nations Commission on the Limits of the Continental Shelf (CLCS), arguing that an area of approximately 895,000 square kilometers of the Arctic Ocean north of Greenland belonged to Denmark. The claim submitted that Lomonosov Ridge, a 1,800km-long underwater mountain range spliting the Arctic in two parts, was a natural extension of Greenland, a Denmark autonomous territory. It should be noted that the claimed territory is 20 times larger than Denmark itself. To collect all the necessary scientific data to submit the claim, Denmark spent 12 years and 55 million dollars. Previously, in December 2011, Russia submitted a similar claim arguing that Lomonosov Ridge was a natural extension of its territory, and an updated submission of this claim is expected in Spring 2015.

For a significantly long period of time, the Arctic has been viewed as a distant, frozen wasteland that is far from civilization. However, times change. Nowadays, it is a desired piece of real estate and the reason is clear.

Firstly, the recent warming in the Arctic has significantly reduced the sea ice and, consequently, the mineral wealth of Artic has become more accessible. To note, under the U.S. Geological Survey, the Arctic is home to 13% and 30% respectively of the world’s undiscovered oil and gas resources.

Secondly, the significant ice melt has opened trade routes between Europe and Asia, shortening the distance to travel, from 11,200 to just 6,500 nautical miles.

Arguably, taking into account the recent oil price decrease as well as the extremely expense of drilling for oil and gas in the region, it may seem that this frozen real estate is more of a burden than a treasure, nevertheless the acquisition of the top of the world is the dream of every coastal Artic State. Under the United Nations Convention on the Law of the Sea (the UNCLOS), the five coastal Arctic States, in particular, Canada, Denmark, Norway, Russia and the USA, are allowed to claim territorial sovereignty over the Arctic territory.

The current law of the seas provides for a special legal regime for the coastal State to explore natural resources living or non-living “of the waters superjacent to the seabed and of the seabed and its subsoil”[1] within its Exclusive Economic Zone (EEZ). At the same time, any exploitation of the seabed beyond the EEZ is very controversial. The coastal State is entitled to explore these resources subject to the condition that it proves that the respective resources lie within its continental shelf. Under the UNCLOS, the continental shelf shall not exceed (1) 350 nautical miles from the baselines from which the breadth of the territorial sea is measured or (2) 100  nautical miles from the 2,500 metre isobath, which is a line connecting the depth of 2,500 metres.[2] The latter criterion is significant with regard to the Artic lands due to the flat nature of the Artic ocean, the majority of which is no deeper than 2,500 meters. Hence, in order to claim a particular Arctic territory, each of the coastal Arctic States must prove that particular areas of the Artic are a natural prolongation of their land.

The mechanism proposed within the UNCLOS requires scientific information about the disputed ocean seabed to be submitted together with the claim. The claim itself shall be submitted to the CLCS, which is composed of 21 experts in the fields of geology, geophysics, or hydrography. It has been established that a State that ratified the UNCLOS before 1999 is entitled to submit a claim regarding the extension of continental shelf until 13 May, 2009, whereas a State ratifying the UNCLOS after 1999 is given 10 years for submission.

Among the five coastal Artic States entitled to lay territorial claims to the Artic land area, Russia’s policy is arguably the toughest, a strategy that is purported to appeal to the Russian population and not the international community.

Firstly, the Arctic is regarded by the Kremlin leaders as a region where Russia can assert its status as a major international power. Notwithstanding Russia’s breakdown in the international arena, recession, and tough economic sanctions, a strong Arctic policy could have a positive effect on a Russian population entranced with their current leaders.

Secondly, one should consider the Kremlin’s symbolic actions in the region. In 2007, a titanium Russian tricolor was planted on the bottom of the seabed 4 kilometers beneath the North Pole. Russia claimed that Lomonosov Ridge was a continuation of its continental shelf, and therefore, these activities were legal. Russia also ordered an increase of the military presence in the region following the announcement of the Canada’s intention to submit a claim for additional territory in Arctic. In 2013, Russia impounded a Dutch-flagged Greenpeace ship and accused its crew of piracy. In 2014, Russia engaged in military training in the region for the first time since the end of the Cold War and tested a new generation of rockets. To conclude, Russia has established an aggressive policy in regards to acquiring new territory in the Artic, a policy that could lead to territorial conflicts at the top of the world in the future.

However, peaceful settlement of territorial claims in the Arctic may face several problems:

Firstly, the CLCS is not an arbitration body. For instance, Article 9 of the Annex II to the UNCLOS expressly stipulates that “the actions of the Commission shall not prejudice matters relating to delimitation of boundaries between States with opposite or adjacent coasts.”[3] Within its duties and responsibilities is to verify the scientific data submitted by the respective States and issue recommendations to the applicant States. Hence, its decision is not final and binding like the decisions of the International Court of Justice (ICJ), the International Tribunal for the Law of the Seas (ITLOS), and other international tribunals. Consequently, the ultimate determination of the maritime boundary shall be negotiated between the submitting States.

Secondly, the dispute resolution mechanism under the UNCLOS is rather weak. Article 298 UNCLOS provides for a right of every State with opposite or adjacent territorial seas, exclusive economic zones, or continental shelves to declare in writing that it does not accept particular methods of dispute resolution. To note, Canada, Denmark and Russia made a reservation of non-applicability of Article 298 UNCLOS. Taking into account the fact that the USA is not a party to the UNCLOS and, therefore, is not bound by its provisions, only Norway is actually bound by the dispute resolution procedure established by the UNCLOS.

Thirdly, it will take the CLCS at least 10 years to verify all the scientific data submitted by the coastal Arctic States. This time period is extremely long and it is clear that State may not wait for a decision for such a long period of time.

In conclusion, the current legal regime is not adequate to resolve territorial disputes in the Arctic as there are no binding dispute resolution mechanisms. Taking into account the recent trend in Russian territorial disputes, the Russian policy in the Far North will show whether Russia will stick to the international laws related to the Arctic, or whether it will try to exert its own style of control with further militarization of the region and restoration of maritime power lost after the end of the Cold War. Therefore, the Arctic coastal States must establish proper mechanisms of cooperation and dispute settlement, such as entering into multilateral treaties (similar to the Antarctic Treaty of 1959), bilateral agreements, joint development agreements, and address international arbitration to settle existing and future territorial disputes in the Arctic region.

[1]          UNCLOS, Art.56(1)(a)

[2]          UNCLOS, Art.76(5)

[3]          UNCLOS, Annex II, Art,9; UNCLOS, Art.76(10)