For a long time the Arctic region has been viewed as barren wasteland far from civilization due to its inaccessibility arising from layers of thick ice. As a consequence, territorial claims have been relatively limited. Today the situation is different.

The recent Arctic melt (said to have reduced the sea ice by as much as 50% compared to the 1950s, according to the U.S. National Snow & Ice Data Center) and the rapid development of transport and exploitation technologies make the Arctic region more accessible than ever. This, in turn, has led to a new scramble for territory and resources among five Arctic States, namely Canada, Denmark, Norway, Russia and the U.S.. They are rushing to claim undeveloped and, in some cases, unseen territory in order to exploit natural resources estimated to be worth hundreds of billions of dollars. Although detailed and reliable scientific data on what lies under the Arctic Ocean is still rare, the U.S. Geological Survey estimates the mineral deposits in the Arctic seabed to hold 22% of all undiscovered, technically recoverable oil and natural gas resources in the world. In addition, experts also highlight the value of other resources such as coal, iron or copper that may lie in abundance. But, considering that an Arctic-specific legal regime is lacking, potential new access to the Arctic does not only open up new oppor- tunities for exploitation, but also for heated territorial disputes concerning the question: who owns the Arctic and is therefore entitled to the resources in the Arctic seabed?

On 2nd August 2007, after returning from an expedition that culminated in planting a titanium Russian flag on the seabed 4261 metres under the geographical north pole, the Russian polar explorer Artur Chilingarov claimed that, “the Arctic is Russian” and “has always been Russian”. However, from the standpoint of international law this act was purely political and had no effect on the legal status of the Arctic seabed. Nevertheless, the gesture of flag planting captured the world’s attention and revived speculation about a possible military confrontation in the Arctic. However, the Arctic as a potential battlefield for an “Ice Cold War” is an unlikely scenario to prove true. For example, on 28th May 2008, the Arctic States adopted the socalled “Ilulissat Declaration” and committed themselves to an “orderly settlement of any possible overlapping claims” within the existing framework of international law.

What guidance, in reality, can international law provide here? Since the Arctic mostly consists of frozen water and (unlike its southern counterpart, the Antarctic) not land territory, the United Nations Convention on the Law of the Sea (UNCLOS), the current international legal framework for the world’s oceans, is the decisive legal instrument. UNCLOS, which entered into force in 1994, divides the sea into various legal zones measured from the relevant coastal State’s baseline (also described as the low-water line along the coast) with the State’s sovereignty decreasing with increasing distance from the coast. These zones are referred to as: the Territorial Sea (up to 12 nautical miles (nm) from the baseline); the Contiguous Zone (up to 24 nm); and the Exclusive Economic Zone (up to 200 nm) (EEZ). Here, the right to exploit natural resources lying in the seabed belongs to the coastal State (see in particular Article 56(1)(a) UNCLOS). The business agreement between the American Exxon Mobil Corporation and the state-owned Russian oil company Rosneft, which recently made the headlines, must be seen against this background. The contract, concluded on 30th August 2011, concerns the exploitation of resources in the Kara Sea, which forms part of the Arctic Ocean. However, contrary to popular belief, Russia’s entitlement to issue drilling licences in this part of the Arctic region is undisputed, as the Kara Sea falls within its EEZ.

It is beyond the 200 nm EEZ that the exploitation of the seabed is highly controversial. In this area, commonly referred to as the High Seas, no State has the right to autonomously exploit natural resources but has to apply to, and cooperate with, the International Seabed Authority, which acts on behalf of mankind as a whole (see in particular Articles 137, 153, 157 UNCLOS), unless the coastal State proves that the respective resources lie within its continental shelf. The continental shelf is a maritime area consisting of the seabed and its subsoil attributable to an individual coastal State as a natural prolongation of its land territory and can, exceptionally, extend a State’s right to exploitation beyond the 200 nm of its EEZ. It is on this possible extension that the Arctic States base their territorial claims. Yet, in order to establish the outer limits of such a continental shelf a State has to issue an application to the Commission on the Limits of the Continental Shelf (CLCS) providing supporting scientific and technical data as soon as possible but in any case within 10 years after entry into force of UNCLOS for that State (see Article 4 UNCLOS Annex II). Article 76(5) UNCLOS provides that the outer edge of this continental shelf shall not exceed 350 nm from the baseline or 100 nm from the 2,500 meter isobath, whichever is more favorable to the applying State. The latter criterion is particularly significant in light of the overall flat nature of the Arctic Ocean (most parts are no deeper than 2,500 meters). However, there is one exception to this rule with respect to “submarine ridges”: if the continental shelf covers parts of such a ridge, it cannot be extended to more than 350 nm from the coast no matter where the 2,500 meter isobaths fall. This issue lies at the heart of the dispute over the remaining Arctic territory where, in particular, the definition of the Lomonosov and Alpha-Mendeleev ridges as “submarine ridges” (instead of “submarine elevations” which are natural components of the continental shelf and do not fall under the limit of 350 nm) is disputed.

Russia and Norway are so far the only States that have submitted an extended continental shelf claim to the CLCS. Hence, it currently remains unclear which of the Arctic States, if any at all, will succeed in establishing the outer limits of their continental shelves beyond their 200 nm EEZs and with it the right to exploit the resources lying in the Arctic seabed in this area. Now, where does that leave us with regard to the territorial future of the Arctic?

To read the entire report, order a copy of the magazine.

by Felix Lüth & Marc Sonntag

(Photo © Nathalie Grenzhaeuser, Kapp Amsterdam, 20o7)