Polar Dispute

For a long time the Arctic region[1] 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, which is said to have reduced the sea ice by as much as 50% as compared with the 1950s according to the U.S. National Snow and Ice Data Center (NSIDC), and the fast moving 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 scientific data on what lies under the Arctic Ocean is still rare, mineral deposits in the Arctic seabed are estimated to hold 25% of the world’s current oil and natural gas reserves. 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, the expected new access to the Arctic does not only open up new opportunities for exploitation but also for heated territorial disputes concerning the question: Who owns the Arctic and, as a consequence, is entitled to the resources in the Arctic seabed?

Legal Status Quo – For some parts of the Arctic region international law provides a clear and largely undisputed answer to this question. In fact, the current international legal framework for the world’s oceans, the United Nations Convention on the Law of the Sea (UNCLOS), 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).

However, any exploitation of the seabed beyond the 200 nm EEZ is highly controversial. In this area, commonly referred to as the High Sea, 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 applicant 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 falls. 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” (or instead as “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 in relation to the territorial future of the Arctic?

Even if the CLCS receives all applications in the future, its decisions, in all likelihood, will not provide a final and binding resolution of all Arctic disputes. This is already indicated by the fact that one of the Arctic States, namely the U.S., is not a member of UNCLOS and, therefore, not bound by its provisions and consequently has not submitted an application to the CLCS. Apart from this, the CLCS is also not a forum that is capable of providing final and binding solutions. The CLCS, made up of scientists, merely gives recommendations that may provide scientific determinacy on the delineation of a State’s extended continental shelf but do not lead to a legally binding delimitation, leaving the ultimate determination of the maritime boundary to the submitting State. In fact, Article 9 UNCLOS Annex II states expressly that the CLCS’s recommendations “shall not prejudice matters relating to delimitation of boundaries between States with opposite or adjacent coasts” (similarly Article 76(10) UNCLOS). Thus, the CLCS has no mandate either to determine maritime boundaries between coastal States or to settle disputes, unless the Arctic States (including the U.S.) expressly accept it.

In the absence of such acceptance, what are other possible means to resolve the Arctic disputes? In principle, Articles 279, 287(1)(a-d) UNCLOS oblige the parties to settle any dispute between them by peaceful means; for example, via the International Tribunal for the Law of the Sea, the International Court of Justice or arbitral tribunals. However, Article 298 UNCLOS permits a State to declare that it does not accept such methods of resolution for disputes relating to continental shelves. Canada, Denmark and Russia have all issued declarations of non-acceptance in relation to their respective Arctic claims. Bearing in mind that the U.S. is not bound by UNCLOS, the dispute resolution procedures of UNCLOS are currently only binding on Norway.

Other Possible Solutions For as long as the UNCLOS regime faces such difficulties, other possible ways of addressing the conflicting claims must be considered. Two possible solutions are delimitation through a multilateral agreement and mutual exploitation of the resources in the Arctic seabed by way of a joint development agreement.

A multilateral agreement or an “Arctic treaty” could either be modelled after the already existing Antarctica treaty or established as an Arctic treaty sui generis. However, the situation in the Arctic today appears to be significantly different to the one in the Antarctic in 1961, when the treaty for its peaceful use entered into force; for example, the Antarctic Treaty is aimed at preventing exploration whereas Arctic States are eager to explore and exploit. Instead of a multilateral agreement aiming at the delimitation of boundaries, the Arctic States could also enter into so-called joint development agreements. Such agreements would enable them to mutually share the exclusive rights as regards natural resources in the contested areas without abandoning their claims and, thus, also without the need for a final resolution of all legal issues. Interestingly, joint development agreements might also just provide the necessary flexibility when facing such a multitude of very complex claims (they cannot only be divided into different categories, such as oil and gas, fisheries and navigation, but also be split unevenly between the parties within these categories).

Conclusion & Perspective -  The expected new access to the Arctic has also led to a new scramble for so far unclaimed territory and resources estimated to be worth hundreds of billions of dollars among Canada, Denmark, Norway, Russia and the U.S.. While each Arctic State’s right to exploit the seabed’s natural resources within its 200 nm EEZs is largely undisputed, ownership of the resources beyond the 200 nm EEZ is highly controversial. Here, the disputes focus on the Arctic States’ continental shelf, which can, exceptionally, extend a State’s right to exploitation of resources lying in the seabed beyond the 200 nm of its EEZ. In principle, international law provides for several ways to resolve such disputes either within the existing UNCLOS regime or independently of it. However, at this point in time the Arctic States are neither entitled nor seem willing to commit to any final and binding way of resolving their disputes since it is still unclear to what extent (if at all) any of the Arctic States will succeed in scientifically proving the existence of a continental shelf beyond their 200 nm EEZ. In the authors’ opinion it is only when all Arctic States are more aware of the persuasiveness of their continental shelf claims that there will be a turn from posing the question, “Who owns the Arctic?”, towards beginning to find the answer. A starting point could be in 2014, when Denmark, as the last of the Arctic States (also a member of UNCLOS), is supposed to submit its application and the CLCS, thereafter, issues its (scientific) recommendations. 

(Cartoon © Kevin KAL Kallaugher, The Economist)

[1] For the purpose of this discussion the Arctic region will be understood as the region lying within the Arctic Circle, North of an imaginary line drawn at latitude 66° 33´North, and, therefore, consists of the Arctic Ocean and parts of Canada, Denmark (via Greenland and the Faroe Islands), Finland, Iceland, Norway, Russia, Sweden and the United States of America (U.S.).