From Interstate - Journal of International Affairs VOL. 2010/2011 NO. 1
The North Pole: Shall We Race?
The territorial claims on the North Pole are the latest contentious grey area amongst world forces – Russia, Canada, the USA, Denmark and Norway. The events could have been the perfect opportunity for a lesson in puppet mastery on the international political stage conducted with precision and panache. Instead, the political leaders provided their fair share of immature tantrums and pointless boasting. They enjoyed being in the spotlight, boosting the national confidence by flexing their muscles in front of cameras and voters. And as ever the obliging media gladly followed suit and fitted this into the narrative of an epic race.
The Hare was once boasting of his speed before the other animals. “I have never yet been beaten,” said he, “when I put forth my full speed. I challenge any one here to race with me.”
The Tortoise said quietly, “I accept your challenge.”
“That is a good joke,” said the Hare, “I could dance round you all the way.”
“Keep your boasting till you’ve beaten me,” answered the Tortoise. “Shall we race?”
- The Hare and the Tortoise, Aesop’s Fable1
The classical model of a race can be found in Aesop’s fable, The Hare and the Tortoise. While the Tortoise kept its gaze fixed on the ultimate goal; the Hare identified velocity, his personal bravado and public approval as the decisive factors and paid for his incorrect judgment. In contrast, the Tortoise employed the result-oriented approach and was rewarded for his concentration and persistence. Essentially, the Tortoise is a brilliant strategist. He considered two factors – the characteristics of the track and the personal traits of his opponent. The former goes down to the simple operation of crossing the finish line first, whereas the latter entails recognising the Hare’s weaknesses. This is an example of primal confrontational politics.
This piece argues that national forces are wrongly caught up in construing the North Pole scenario as a matter of establishing dominance. Applying the aforementioned pattern universally amounts to a clumsy imitation of the ways of the inspired thinker that is the Tortoise. A moral for today’s leaders is to consider the specifications of the terrain and the adversary before rushing into action. It is contended that the best strategy in the Arctic ‘race’ is cooperation towards reaching an agreement, perhaps even an overarching multilateral treaty. This proposition has proved valid upon inspection. Firstly, there is no universal finish line for the Arctic ‘race’ – a different time limit is set for each country to submit sufficient evidence to the United Nations Continental Shelf Commission in order to reach a settlement with regard to the borders on the map. Plus, at least half a century may pass until any country can gain access to resources in the North Pole. Secondly, the confrontational policy of the states so far has proved to be markedly inefficient and slow in producing results, if at all. And thirdly, the stakes are too high for anyone to back off, which will doubtlessly bring incessant fruitless bickering or escalation of the disagreement. Thus, only those that strive for an equitable, peaceful and dignified resolution could resolve this matter.
However, let us first explore what the terrain has in store for our valiant contestants. Some estimates suggest that about 20% of the world’s total oil reserves lie under the Arctic.2 Needless to say, this is seen as an extremely attractive potential asset for any developed country, especially considering that there is a huge market in places such as China and India where deficits in oil supplies exist. So far, Swedish and Russian attempts to drill into the ocean floor have proved successful, discovering promising reserves of mineral deposits and coal beds, not to mention an abundance of fish stocks, including cod and capelin.3 Additionally, climate change and the consequent melting of the polar ice caps have renewed hopes for a new route leading westward to India. Borgerson, quoted in Richard Parker’s article, points out that should warming trends continue, with sea ice melting and becoming thinner in composition, ‘the Arctic will become similar to the Baltic Sea, covered by only a thin layer of seasonal ice in the winter and therefore fully navigable year-round.’4 This is crucial for world economies because using the Northwest Passage (NWP) – a sea route through the Arctic Ocean - will shorten the transit from Europe to Asia by 7000km, making it less costly than passing through the Panama or Suez Canals, which may have positive economic consequences for European markets.5
Let us move on to the rulebook of the race. The existing regime can be summarised as such: ‘The Arctic has no binding regional convention, but instead a hodgepodge of a few international treaties, various regional bilateral and multilateral agreements, and domestic laws. Although in need of a binding treaty like the ATS [Antarctic Treaty System], the inability of the Arctic nations to reach a consensus on sovereignty claims and other issues has perpetuated the reliance on soft law in the region.’6 The only binding instruments presently include the UN Convention on the Law of the Sea, the Straddling and High Migratory Fish Stocks Convention and the International Convention for the Prevention of Pollution from Ships (MARPOL). With regard to national legal dimensions, it has been noted that ‘while domestic law can play an important role in protection, it is ineffective at addressing transboundary problems and only adds to the multiplicity of laws affecting the region … domestic conservation attempts provide only piecemeal protection for the environment’.7
Meanwhile, there is a wealth of soft law sources. In 2008 the five circumpolar nations issued the Ilulissat Declaration8 – a crucial statement of intention to work out a comprehensive set of rules. It is vital to stress here that the five states used the language of ‘sovereignty, sovereign rights and jurisdiction in the Arctic Ocean’, seeing themselves as the key players by excluding the indigenous population of the North Pole and the other Arctic Council members.10 And so, this piece will work under the presumption that establishing a form of sovereignty over the Artic territories is possible.
The underlying document for the time being is the United Nations Convention of the Law of the Sea (UNCLOS). UNCLOS has been called “the constitution for ocean governance”, since it encompasses a wide array of rights and duties – pollution and conservation, dispute resolution, jurisdiction, exploitation of resources, deep sea mining, navigation etc. It is a self-executing treaty, the general rules of which are further complemented by agreements on specific issues. UNCLOS is particularly relevant with regards to delimitation of the Arctic waters. It is especially important to note that the treaty constitutes codification of pre-existing custom and therefore it is binding on all states.11 It has been widely acknowledged in public international law that there are two sources of binding legal rules – custom and treaty. Thus, even though the US is the only circumpolar nation that failed to ratify it, it still needs to comply with its provisions.
However, UNCLOS has been frequently criticised as insufficient to meet the upcoming challenges of the overlapping claims to the Arctic:12 Section II of UNCLOS allows for an extension of the exclusive economic zone by an extra 150 nm, if the state manages to provide evidence that it is a ‘natural prolongation of its land territory’. Article 87 of UNCLOS instructs the states to agree on a boundary within a ‘reasonable period of time’, while the opt-out option is to be found in Article 298. All of the contenders, except for Norway, have taken the chance to avail themselves of this responsibility in dispute resolution. This fact only goes to show that UNCLOS is ineffective in regulating disputes such as the one between Russia and Norway.13 The ICJ and the International Tribunal on the Law of the Sea have not yet encountered a case decided on the basis of UNCLOS as binding law. The continental shelf disputes are meant to arrive at an ‘equitable solution’ (Article 83 UNCLOS), but no means to this end are specified.14 This hinders the establishment of objective criteria to judge equitability and leaves too great a margin of appreciation to the states.
B.A. Malloy has presented a brilliant analysis of the loopholes of the current regime for the Arctic.15 She argues that the existing framework leaves too much room for selective applicability and arbitrariness. The policy is too weak to withstand raging national interests. States fail to codify specific legal standards, measures and deadlines, which leads to the disregard of soft law guidelines in the pursuit of resource extraction and military security. Given their conduct so far, it would be unwise to trust the contenders to act objectively and in moderation in their resource management. Moreover, Malloy points out that UNCLOS is not as exhaustive as it should be there are no rules taking into account the specifics of the Arctic ecosystem. The scope of protection in UNCLOS is unfortunately only restricted to ocean governance. Other omissions in the current regime include uniform regulation of military operations and mining for resources.
In the face of such a faulty legal framework, a binding multilateral treaty exclusively on the North Pole is recommended. D. Rothwell envisions a universally applicable instrument that contains a clear and unequivocal codification of the sovereign rights over the Arctic which already exist. In doing so, no preference should be given to the territorial claims of any of the five actors. This instrument should design proper mechanisms for the resolution of disputes, in the case of an overlap. It should also include a variety of underlying tenets, while the details will be arranged officially later in date. Its scope should extend to the entirety of the Arctic Ocean and the adjacent high seas. 17
Let us proceed with an analysis of the legal status of the different elements of the Arctic territory. To start off, the legal status of the NWP has long been a subject of disputes between the US and Canada. Canada sees it as part of its internal waters and demands full authority over its usage.18 The Norwegian Fisheries19 case three-fold test is to be applied to assess the credibility of Canada’s contention on the basis of the following criteria: the natural physical formation of the coastline; a close link between land and waters and lastly; the economic and social implications. 20 Even if Canada manages to withstand rebuttal on the delimitation point, there is an exception to the absolute control over internal waters. When the coastline claims waters that were previously left outside its original internal waters, there is a right of innocent passage enshrined in UNCLOS 1982.21 Another argument could be littoral sovereignty that calls for proof of discovery followed by effective occupation and administration. This thesis is further supported by the historical acquisition of more territories through treaties.22 In contrast, the US contends that it is an international strait that is under limited Canadian sovereignty, without prejudice to free transit.23 The US also points out that all maritime States have a legitimate right to the ‘safest and most expeditious route.’24
The next element is the Arctic ice. At first, Canada and Russia contended that sea ice could be equated to land, but this view was dismissed as outdated. Today the polar ice is regarded as water, although it bears a somewhat special status. Shelf-ice could be used as a basis for determining straight baselines, but only if it is ‘comparatively permanent and stable’.25
Out of all of the elements, the continental shelf is of tremendous interest to the circumpolar nations, since it is rich in oil, gas and minerals. The continental shelf is a legal term based on the idea of territorial sovereignty that denotes a prolongation of the continents that slides down to link with the deep sea bed (i.e. the continental margin). Article 76 of UNCLOS provides that all coastal states are entitled to an extension of up to 350 nm, beyond the 200 nm of complete sovereignty. Evidence submitted to the Commission on the Limits of the Continental Shelf (CLCS) is needed in order to satisfy this complex formula. The final delimitation is subject to approval by this organ.26 There is a time limit to these submissions – within 10 years of UNCLOS coming into force in that particular state (Article 4 of annex II to UNCLOS).
A. Cavnar suggests that UNCLOS creates a ‘monstrously difficult’ formula that surpasses all of the other UNCLOS delimitation procedures. It has been also pointed out that the language used is not scientific in nature, but purely legal. Thus, a brand new legal process for treating and appraising evidence is introduced - not necessarily one that accurately reflects the physical realities. As a result, when gathering sub-marine data, states must bear in mind the potential interpretation of their findings, not their objective geological worth. Hence, they plunge into a costly battle with an unforeseeable outcome.27The uncertainty in interpretation is supposed to be remedied by the Commission on the Limits of the Continental Shelf (CLCS). It is the only organ mandated to oversee the procedure under Article 76 of UNCLOS. Its conclusions are uniform and possess great influence. However, in the absence of scholarly or governmental agreement on the ambiguous wording of the provision, the role of CLSC is also highly controversial and stretches beyond the technical verification of the submissions. Luckily for the states, they are not left completely in the dark, since the CLCS Scientific and Technical Guidelines are available to the public.28
It is now high time for the profiles of the adversaries to be examined. The most significant event relating to the territorial claims occurred on 2nd August, 2007, when a Russian flag was planted on the underwater Lomonosov ridge, which is directly linked to the Arctic coast, with the intent of legitimising Russian claims to the Arctic. This can be seen as a symbolic move highlighting Russia’s increased determination to secure their claims to the Arctic. Moscow’s National Security Council officially vocalised its intention to make the Arctic its ‘main resource base’29 by 2020, and introduced plans for troops ‘capable of ensuring military security in the region’.30 In addition, a Russian admiral mentioned equipment being prepared especially for the Russian Arctic fleet. Controversially however, Foreign Minister Sergei Lavrov insisted Russia was not planning any increase of forces in the Arctic. The Managing Director of the Johns Hopkins Centre for Transatlantic Relations argued that ‘the Russians know what they want. They’ve got an Arctic fleet, and incentives to bring people to settle in the region. They want to develop gas fields. It’s not military aggression, but an attempt to build a comprehensive presence.’31 Russia’s overall conduct can be classified as purposefully daring. It started off as the villain with its pretences and marked dominance. However, recent developments surrounding Russia’s new political course will be considered below.
The main rival, Canada, was enraged by Russia’s behaviour. ‘You can’t go around the world and just plant flags and say: ‘We’re claiming this territory’,’ protested the Canadian Foreign Minister, Peter MacKay.32 Canada’s absolute resolution was summarised by Stephen Harper, the Canadian Prime Minister: ‘Canada has a choice when it comes to defending our sovereignty over the Arctic. We either use it or lose it. And make no mistake, this government intends to use it.’33 In this case, Canada’s response to Russia’s conduct was completely adequate. However, Canada itself has a similar attitude. Indeed, it has been a long-standing policy of the country to treat the North Pole territory as an extension of its own lands. In 2000, Canada managed to assert sovereignty over part of the Arctic Ocean. Luckily for Canada, this decision did not meet any resistance. In 2007, Canada invested 3.3 billion pounds in up to eight military patrol ships that would be converted for use in ice up to a metre thick, and a new deep-water port that would service them.34
In 2009, Canada released a public relations plan called Canada’s Northern Strategy: Our North, Our Heritage, Our Future.35 It is aimed at helping the Canadian North’s economy by launching new geo-mapping initiatives, improving regulatory processes and giving priority to the North when it comes to economic development.36Similarly, the US has no intention of giving up the fight. It has always been one of the most powerful contestants in this race, maintaining its interest throughout the years and spinning a web of small, yet substantial political and legal moves. In 1969, the oil tanker, Manhattan, trespassed upon the waters of the NWP, making environmentalists hold their breath, because a potential oil spillage in the icy waters would be a disaster without any chance of rectification. As a result, the Arctic Waters Pollution Prevention Act was enforced, in which Canada asserted the right to control navigation in waters extending 161 kilometres offshore. The US considered no change of political course and sent an icebreaker through the NWP without coordinating it with Canada first. This lead to the Arctic Cooperation Agreement, which postulates that US vessels shall not enter the NWP without Canada’s approval, and Canada will always give its permission.37
Denmark also sharpens its claws for the fight over the multi-billion prize. In 2007, Denmark sent an expedition to the Pole, but the reasoning behind it remained obscure: ‘While the Prime Minister says the North Pole is shared property, the science Minister has hinted that the North Pole - or parts thereof - is Danish property. We need the government to make a clear stand,’ said Rasmus Prehn, Social Democratic shadow spokesman on science.38 Flemming Christiansen, another scientist at Denmark’s Geological Survey of Denmark and Greenland (GEUS), says Denmark’s ultimate goal is not the natural resources the North Pole has to offer, but its strategic whereabouts as an international route.39 According to scientists of the Canadian Polar Commission ‘preliminary work has shown — and this is, again, very preliminary — that Denmark would actually have the strongest claim to encompass the North Pole within its region’.40 This is not to say, though, that Denmark will receive anything without solid proof to back up its case.
Meanwhile, Norway has already gathered and submitted evidence to the relevant authorities to make its claims. However, Norwegian scientists appear to think that, while part of the region is Norwegian territory, the pole itself is not Norwegian.41 It can safely be said that Norway has remained calm and preserved its diplomatic sanity in the face of the storm. Willy Østreng voiced his concern about the misconception of the Arctic race and his vision for international co-operation on the subject: ‘To sort all these interests out requires fine-tuned politics, subtle diplomacy, and a willingness of all parties to find pragmatic solutions’.42
Norway was not the only one to abide by the way of Aesop’s Tortoise. The latest major breakthrough in the territorial claims on the North Pole is the official bilateral agreement of 2010 between Russia and Norway, where they settled on splitting the overlapping frontier territory in the Barents Sea and the Arctic Ocean roughly in two.43 This event means that the disputes can be resolved through multilateral agreements in line with the UN Convention on the Law of the Sea, not a common treaty. What is more, it shows that Russia has finally adopted a ‘mellower tone’ in its foreign affairs and is searching for a lawful compromise, rather than dominance by all means. 45 Thus, one of the most fervent contestants has gained wisdom and maturity in its policy and was rewarded with a palpable positive development.
In conclusion, it is evident that there is a myriad of unregulated, faulty or inconsistent questions surrounding the Arctic. The current regime is struggling to keep up and the circumpolar nations act on their own with only minimal guidelines, causing unseen tension in the international relations. One thing is certain – a radical change in the behaviour of the adversaries must occur or the matter will be forever stuck in a limbo of uncertainty. Following the example of the Tortoise, the forces must customise their methods to the true nature of the problem that goes beyond the obvious banging on the negotiations table with an iron fist. In the end, ‘Plodding wins the race’,46 but only if it is done in the right direction.