The Race to the Arctic and International Law
1. On August 2, a Russian mini-sub planted a titanium flag on the seabed of the North Pole. The sub’s voyage was supposedly a part of a scientific mission to determine whether Russia’s claim to an enormous portion of the Arctic seabed is valid. But if the science is in doubt, why plant a flag?
2. Last month, the Canadian government had announced that it was building new patrol boats to guard the Northwest Passage, an arctic link between the Atlantic and Pacific that might become navigable as global warming proceeds. Shortly after Russia planted its flag on the North Pole, the Canadian government also announced that it was building a military base and a deep water port on its Arctic territory.
3. A few days ago, Denmark announced that it, too, would send a scientific expedition into the arctic region; its goal was to provide scientific support for Denmark's claims on the region.
4. Meanwhile, the United States has sent its own expedition to the North Pole. Its leaders assert that it has scientific purposes only, but Russians believe that the U.S. is signaling that it, too, has interests in the arctic region.
What’s going on? Two things: the polar ice cap is melting and energy prices are high. Because the ice is melting, the cost of extracting oil and gas beneath the arctic seabed is declining. No one knows how much oil and gas lies waiting there, but the U.S. Geological Survey estimates that a quarter of the world’s undiscovered oil and gas reserves are located in the arctic. Another source estimates that that they are worth $1 trillion.
1. What’s wrong with nations engaging in scientific exploration of the arctic?
Nothing, but it is clear that more is at stake. The arctic nations have long made mutually inconsistent claims on the resources beneath the polar region. As long as extraction of these resources was impractical, this did not matter. But with increasing demand for energy, and melting polar ice, this is no longer the case.
2. Won’t international law resolve these claims?
Four of these nations—all of them except the United States—are parties to the United Nations Convention for the Law of the Sea, and in principles its rules should apply.
The Law of the Sea treaty provides that coastal states have a certain degree of control over oceans. Simplifying a bit, a nation has a twelve-mile territorial sea, over which it has nearly absolute sovereignty. This means that it can regulate whatever happens in that sea. The next twelve miles form that state’s contiguous zone, where it can engage in certain enforcement actions—for example, to board suspected smugglers. All coastal states also have a 200 mile Exclusive Economic Zone, where it has the right to control the extraction of minerals. Finally, and most pertinent to the Arctic dispute, states also have control over the portion of the continental shelf that projects from their coasts.
The two key points about continental shelves is that they contain valuable minerals and the water above them is relatively shallow, making mineral extraction economically feasible. By contrast, the deep sea is thousands of feet deep and it is extremely difficult to extract minerals from the bottom of the seabed. Back in 1945, President Truman claimed the U.S. continental shelf as exclusively subject to American sovereignty, and gradually other coastal nations followed suit with their continental shelves. The Law of the Sea treaty provides a formula for determining what the continental shelf is, and how far a nation’s control over it extends.
I haven’t found a description of Russia’s argument. A map with coordinates can be found in Russia’s submission to the Commission on the Limits of the Continental Shelf, but no accompanying documentation that explains the basis of the claim in the law. This provides us with an excuse for an excursion through Article 76 of the Law of the Sea Treaty. (Warning: the treaty is confusing, largely untested in tribunals, and I am sure I make errors. Corrections welcome.)
If you take a look at a map that shows Russia’s claim, you will see that the claim is composed of two features. First, you will see that most of the claim is a blobby line that hovers above Russia’s northern coast. Second, you will see protruding from the eastern portion of this blobby line, somewhere above Siberia, a triangular tongue whose tip is the North Pole.
The blobby line appears to have been derived from Article 75, section 1:
1. The continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.
So the blobby line is simply a line that follows the coast two hundred miles to the north. Note that Russia can count its islands as part of the mainland for these purposes, and so in some places the coasts of the islands provide the point from which the 200 mile distance is calculated.
But the blobby line is not what has upset people; notice that it falls far short of the North Pole. Where does Russia get authorization to draw the tongue? The answer is that the treaty permits states to claim control over areas that extend beyond the 200 mile distance under certain conditions.
4. (a) For the purposes of this Convention, the coastal State shall establish the outer edge of the continental margin wherever the margin extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, by either:
(i) a line delineated in accordance with paragraph 7 by reference to the outermost fixed points at each of which the thickness of sedimentary rocks is at least 1 per cent of the shortest distance from such point to the foot of the continental slope; or
(ii) a line delineated in accordance with paragraph 7 by reference to fixed points not more than 60 nautical miles from the foot of the continental slope….
5. The fixed points comprising the line of the outer limits of the continental shelf on the seabed, drawn in accordance with paragraph 4 (a)(i) and (ii), either shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured or shall not exceed 100 nautical miles from the 2,500 metre isobath, which is a line connecting the depth of 2,500 metres.
These provisions reflect the fact that sometimes a continental shelf will extend beyond the 200 mile distance. When that is the case, a nation can claim control over that portion of the continental shelf (drawing the edge of the margin in the manner prescribed by 4(a)), albeit only to the limit described in Section 5 (350 nautical miles or 100 miles from where the sea reaches a depth of 2,500 meters).
Russia argues that a geological feature known as the Lomonosov Ridge is a portion of its continental shelf. This ridge—a kind of underwater mountain range—extends from the Eurasian continental shelf all the way to the North Pole. (Indeed, it continues through the North Pole and reaches Canada and Greenland, a point to which I will return.) The western edge of the tongue follows the western edge of the Lomonosov Ridge. That is why the western edge is bumpy. The eastern edge of the tongue is smooth because it simply follows a meridian back down toward (and past) Russia. This meridian happens to be the International Dateline.
It is not clear why Russia believes that its claim should extend so far east. One clue is that the eastern edge ends at a line that the U.S. and Russia (then, the Soviet Union) agreed would be the border between their respective claims on the continental shelf. But this treaty would not give Russia the area on the western side of the line unless it had some other right to it. It’s not even clear to me that the continental shelf extends that far north and east; much of this area seems to be deep sea.
Another section to look at:
6. Notwithstanding the provisions of paragraph 5, on submarine ridges, the outer limit of the continental shelf shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured. This paragraph does not apply to submarine elevations that are natural components of the continental margin, such as its plateaux, rises, caps, banks and spurs.
So one question is whether the Lomonosov Ridge is a “natural component” of the Eurasian continental margin or merely a submarine ridge. I suspect this is an eye-of-the-beholder question. If so, Russia’s claim falls short of the North Pole, though it may still extend 150 nautical miles beyond the 200 mile limit.
I mentioned that the Lomonosov Ridge extends all the way to Canada and Greenland. If the Lomonosov Ridge is really part of the Eurasian continental shelf, why does Russia’s claim extend only to the North Pole? Why doesn’t it extend beyond the North Pole, all the way to Canada and Greenland? Maybe Section 5 is the answer, but I am not sure. In any event, Denmark claims that the Lomonosov Ridge emerges from Greenland, and thus belongs to Denmark. And Canada claims that the Lomonosov Ridge is a part of Canada. If everyone is right, then Article 76 does not determine who has the claim to the North Pole.
Probably one needs to look at Article 83:
1. The delimitation of the continental shelf between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice [which just describes the sources of international law], in order to achieve an equitable solution.
2. If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV.
3. Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation.
4. Where there is an agreement in force between the States concerned, questions relating to the delimitation of the continental shelf shall be determined in accordance with the provisions of that agreement.
This Article says: If two states share a continental shelf, and thus need to divide it, then they should … agree on a division! And if they can’t, they should try. No formulas or rules tell us how Canada, Denmark, and Russia should divide the Lomonosov Ridge, assuming this ridge is everyone’s continental shelf in the first place.
This leads to only one conclusion. The law is ambiguous. Much of the geology is ambiguous as well. So there are no clear answers under the treaty.
3. If the treaty is ambiguous, won’t the dispute be resolved by an international court?
As many people have noted, the Law of the Sea treaty creates a special Commission that has the authority to evaluate continental shelf claims. Less frequently noted, the Commission does not have the power to issue a legally binding judgment unless the claimant agrees with it. Here is Article 76, Section 8:
Information on the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured shall be submitted by the coastal State to the Commission on the Limits of the Continental Shelf set up under Annex II on the basis of equitable geographical representation. The Commission shall make recommendations to coastal States on matters related to the establishment of the outer limits of their continental shelf. The limits of the shelf established by a coastal State on the basis of these recommendations shall be final and binding.
So if the Commission rejects Russia’s claim, Russia can ignore the Commission’s decision without violating international law.
The Law of the Sea treaty also provides for adjudication in case the Commission’s decisions are rejected. There is a special Law of the Sea Tribunal; the International Court of Justice can also be used; and there are provisions for mandatory arbitration. However, international adjudication rarely resolves anything and, at the very least, it will be extremely slow. The biggest problem is that if Section 83 applies, as it appears to, then no tribunal has jurisdiction. Under Article 297, states can opt out of mandatory adjudication for disputes involving Article 83. Russia has exercised this option. So has Canada. See here.
4. So what will happen then?
Whoever is stronger will prevail. To the extent that Russia’s oil and gas companies can explore the region and extract resources, and Russia’s navy can keep others out, then Russian sovereignty will be established. The U.S. and other countries might try to prevent this from happening by putting pressure on Russia. In the best case, the countries will negotiate a settlement that will reflect each country’s bargaining power. The worst case is probably not war, but friction, and this will make extraction of resources more dangerous and difficult, perhaps impossible. The China-Japan dispute over Senkaku Islands is an analogy.
5. How does the U.S. fit in? Should it ratify the Law of the Sea treaty?
The U.S. does not seem happy with Russia’s claim to the North Pole. The complication here is that the U.S. is not a party to the Law of the Sea Treaty.
If the U.S. sees Russian dominance over the Arctic as a threat to its interests, it can do two things. First, it can send forces into the area in order to establish an American presence; this would first require an expensive upgrading of naval capacities, and, I suspect, close cooperation with Canada, Norway, and Denmark—and that would probably involve settling many of the differences among these countries.
Second, it can ratify the Law of the Sea Treaty. This treaty is a lengthy document, which does a lot more than establish the rules for determining the location of the continental shelf. It also determines territorial waters in general, provides for the international exploitation of the seabed, provides some environmental controls, restricts how countries can treat ships on the high seas and in territorial waters, and much else. The United States government has no objection to this treaty, and in fact treats most of its provisions—those defining the territorial sea, for example—as customary international law.
There are a few provisions that worry commentators, the most serious of which are (1) potential constraints on the ability of American forces to police the high seas, and (2) the creation of an international authority that will control seabed mining. American military and war-on-terror agents who board vessels suspected of terrorist aims could find themselves hauled up before an international court staffed with largely unsympathetic judges. And, the seabed mining authority conjures nightmares of UN-style corruption or (more likely) expensive ineffectuality.
Against these costs, the main benefits of ratification are that it would clarify what the rules are, and, more germane for present purposes, give the U.S. the ability to appoint someone to the continental shelf commission and have a seat at the table when Law of the Sea-related negotiations are taking place.
It seems likely that both the costs and the benefits are low. The United States is not going to be deprived of a seat at the table even if it is not a treaty member. Canada, Norway, and Denmark know that their claims against Russia are not worth much unless the United States takes their side. So a virtual or indirect seat will be found, in some way or another. But, at the least, it will be awkward for the United States to participate in negotiations if it does not ratify the treaty, and it certainly will not be able to appoint someone to the Continental Shelf Commission (though one of 21 votes probably makes no difference).
The main opposition in the U.S. Senate seems to be ideological rather than based on an assessment of America's interests. The Bush administration supports the treaty, as do many people who ordinarily are skeptical of international institutions.