Vying for Sovereign Rights in the Central Arctic Ocean:

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1 Aarhus University Vying for Sovereign Rights in the Central Arctic Ocean: Does the Law of the Sea Convention 1982 cope? Balazs Ujvari Spring 2012

2 Introduction The Arctic Ocean is the smallest and least understood ocean in the world (Baker, 2010). Unlike Antarctica, the Arctic wilderness consists mostly of frozen sea. Although there are isolated islands, which are the subject of claims of sovereignty, by far the greater area is composed of shifting pack-ice. Yet, some states have claimed sovereignty over the frozen sea area, or parts thereof, which has resulted in the resistance of others on the ground that the Arctic sea is subject to the same legal regime as the high seas (Dixon, 2007). At the same time, climate change is arguably more apparent in the Arctic than anywhere else, which is making the region more accessible (Wezeman, 2012; Byers, 2010). Numerous reports have pointed out that, as a result of global climate change, there has been a significant decrease in ice cover in the Arctic Ocean Basin in recent years, with the possibility to become more pronounced in the years to come (McDorman, 2009). The consequences of climate change for Arctic are multiple and intertwined: legal, political, social, economic and environmental. Environmental change necessitates legal and economic developments, which in turn will have serious environmental and social consequences (La Fayette, 2008). Owing to the potential benefits derivable from an accessible Arctic region, the attention of the Artic coastal states Canada, Denmark (Greenland), the Russian Federation, the United States (Alaska), and Norway (Spitsbergen) is increasingly shifting towards the area resulting in the development of national Arctic policies. Six themes can be identified as common to their Arctic strategy statements: sovereignty, scientific research, resource development, shipping, environmental issues, and governance (Brosnan, 2011). Although these concerns are not novel to these states, the possibility of increased action in the Arctic Ocean has led to greater priority being given to these issues in all of the five states. The primary attention has been unambiguously channelled to the possibilities for and consequences of energy resources exploration and exploitation in the Arctic Ocean (McDorman, 2009). Since the U.S. Geological Survey in 2008 estimated that up to a third of the world s undiscovered and technically recoverable hydrocarbon reserves may be located north of the Arctic Circle, littoral states interest has further intensified (Baker, 2010). The media narrative of this growing awareness in the Arctic is that bordering states rush to claim sovereignty over the last frontier of seabed energy resources. Consequently, the Arctic Ocean has been portrayed as an area of serious conflict amongst the aforementioned five 1

3 coastal states. The media narrative is primarily fed by commentators who are concerned about the lack of adequate governmental attention being given to the region and who warn that without urgent action on the part of governments to address the issue of increasingly reachable energy resources, other Arctic concerns such as environmental protection and security may slip from national and international funding and political agendas (McDorman, 2009; Potts and Schofield, 2008). The narrative of conflict and sovereignty assertion respecting energy riches in the Arctic Ocean appeared to have been encouraged in August 2007, when two sub-marines planted a Russian flag in the deep seabed near the North Pole (Holmes, 2008). However, a 2009 analysis of the U.S. Geological Survey report concluded that 84 per cent of the undiscovered oil and gas (in the area above the Arctic Circle) are located offshore under less than 500 meters of the water. The study has also pointed out that majority of the offshore areas, with the highest likelihood for the discovery of hydrocarbons, are well within areas already clearly subject to respective national jurisdictions (Baker, 2010; McDorman, 2009). As all Arctic states, 1 with the exception of Norway, have claimed and delineated a 200-n. mile Exclusive Economic Zone (EEZ) in the central Arctic Ocean, jurisdiction over the most promising offshore hydrocarbon areas is not at issue (McDorman, 2009; Potts and Schofield, 2008). Consequently, adversaries of the media perspective argue that there is no military or economic conflict between the five Arctic littoral states and nor is there a gold rush or race for unclaimed resources. They maintain that the five states are only seeking to collect scientific data to bolster up their claims to an extended continental shelf over 200 nautical miles, despite pessimistic estimations in regards to the energy resources residing in areas that fall beyond the limit of EEZs. Thus, contrarily to the media narrative, neither additional territory nor the North Pole has been sought by the Arctic states (La Fayette, 2008). Accordingly, what scramble has been seen in the Arctic Ocean amongst the five coastal nations has been one of seeking to obtain scientific data respecting the geologic composition and other physical properties of the continental margin areas in the Arctic Ocean (Baker, 2010; La Fayette, 2008; McDorman, 2009). Despite the above debate, one thing remains clear: in sharp contrast to media assertions, there is an international legal framework which applies to the Arctic Ocean. With regard to the 1 The author refers to the aforementioned five states with coastlines bordering the Arctic Ocean. 2

4 existing international treaties, the 1982 United Nations Convention on the Law of the Sea 2 (hereafter LOSC or LOS Convention) has been referred to by many as an effective and powerful driver for acquiring scientific data about the Arctic continental shelf and seafloor; and for stimulating new forms of scientific and diplomatic cooperation in the decreasingly icy, yet dangerous seascape of the Arctic Ocean (Baker, 2010; La Fayette, 2008). It is notable that four of the five Arctic states are LOSC parties, with only the United States not a party (UN-OLA). Yet, there have also been calls for a special international legal regime to be developed for the Arctic, based on the Antarctic Treaty System (ATS). This paper first gives a brief overview of the LOS Convention and describes the various maritime zones that may be claimed under the LOSC with a particular emphasis on the rights coastal states may exercise therein. The paper then goes on to discuss how LOSC deal with multiple overlapping claims and disagreements over extended continental shelf rights. The subsequent part seeks to conclude whether the Convention is adequate for resolving disputes stemming from maritime boundary delimitation by examining the conduct of the five Arctic coastal states through the lens of the LOSC. Finally, the last section studies the applicability of a multilateral agreement similar to the Antarctic Treaty System in Arctic context. I. The 1982 United Nations Convention on the Law of the Sea According to the LOS Convention, it is the inherent right of a coastal state to exercise jurisdiction beyond 200-n. miles over the continental margin that is a natural prolongation of its land territory. Yet, as a procedural obligation deriving from the LOSC, state parties as shall be elaborated below are expected to provide information on their proposed outer limits of the continental margin to the Commission on the limits of the Continental Shelf (hereafter CLCS or the Commission). The motive of the information scramble is indeed what the media claims the possibility to discover hydrocarbon and other energy resources (McDorman, 2009). Baker observes that Arctic Ocean littoral states are committed to acting in accordance with the agreed rules of international law and each state is engaging in costly scientific research necessary to underpin its respective claim for extended continental shelf with legal certainty 2 The law of the sea is not found in one place. It is a mix of customary law and treaty law, both bilateral and multilateral. The LOS Convention being one of the most comprehensive multilateral treaties ever concluded is a fundamental treaty in this regard. 3

5 (Baker, 2010). Moreover, due to the dangers and expense of collecting relevant data in the Arctic Ocean, several states, in accordance with Article 123(C), are exchanging data or even carrying out joint missions such as the co-financed Canadian-Danish expedition aiming to determine whether the Lomonosov Ridge is linked to their shelves (La Fayette, 2008). Therefore, proponents of the LOS Convention contend that, contrary to the deceptive media coverage that has been particularly hyperbolical since the plantation of a titanium Russian Federation flag at the geographic North Pole in 2007, none of the Arctic states appear to be engaged in a land grab or provoking clash in the region (La Fayette, 2008; Potts and Schofield, 2008). This has been seen in line with what is laid down in Article 77(3): The rights of the coastal State over the continental shelf do not depend on occupation, effective, or notional, or on any express proclamation (Baker, 2010). Yet, further legal and political issues equally arise. First, there are likely to be overlapping national claims to physical continental margins beyond 200-n. miles. Second, given that the areas of the seabed that are not part of the continental margin of any state are subordinate to the Common Heritage of Mankind and the mineral resources discovered in these areas are to be managed by the International Seabed Authority (hereafter ISA), all of the Arctic states are striving to maximise its claim to its adjacent continental margin to prevent mineral resources from falling within the jurisdiction of the ISA (La Fayette, 2008; McDorman, 2009). In order to find out whether the above arguments are well-founded and the LOSC is an adequate legal framework to address the above outlined issues, the conduct of the five Arctic states must be examined in the light of the relevant articles of the Convention. According to McDorman, there are three distinct components of the LOS Convention that are central to the rights coastal states may exercise over continental margin beyond 200-n. miles. First, they have certain substantive international legal rights respecting the continental margin where it extends beyond 200-n. miles. Second, the LOSC sets out the criteria and process with regard to the establishment by a coastal state of the outer limits of its legal continental shelf. The delineation of the maritime boundary on the seafloor between a coastal State and the ISA is also included in this component. The third component concerns the practice applied by states and international tribunals to delimit bilateral maritime boundaries when two states have overlapping continental margin claims to an area beyond 200-n. miles (McDorman, 2009). Hereinafter, I shall elaborate all the three components with a particular emphasis on how much they have been adhered to by the aforementioned five Arctic states in the context of their claims to continental shelves beyond 200-n. miles. Before doing so, it is essential to 4

6 briefly introduce the so called maritime zones which will be important points of reference beneath. The LOS Convention permits coastal states to claim several zones extending seawards from their coasts. As a first step, baselines have to be drawn by states along their coasts from which the other maritime zones will be measured. The lines may either follow the low water along sinuosities of the coast, or be drawn as straight baseline following the general direction of the coast where it is deeply indented or fringed with islands, as is the case in Norway or the Canadian Arctic archipelago. Landward of the baselines, the sea is referred to as internal waters, over which coastal states exercise absolute sovereignty (La Fayette, 2008). Territorial sea may be claimed seaward of the baseline up to a limit of 12-n. miles. Since this belt of water is assimilated for most purposes to the land itself, the state also has sovereignty over the airspace and subsoil of the territorial sea. It follows that a state has full legislative jurisdiction therein in the same way as land territory (Dixon, 2007). A state may also declare an Exclusive Economic Zone (hereafter EEZ) that extends up to 200-n. miles from the baselines of the territorial sea. Within this area, the coastal state is given sovereign rights for the purpose of exploring and exploiting the living (e.g. fish, crab, lobster) and non-living natural resources (e.g. oil, gas) of the area. This being said, the EEZ provides the coastal state with an exclusive share of the wealth of the sea which is why numerous states have taken the opportunity to claim an EEZ. Nevertheless it must be highlighted that coastal states do not have sovereignty in this zone. Indeed sovereign rights denotes exclusivity but it does not grant dominium over the EEZ to the littoral state. Furthermore, unlike continental shelf, EEZ is not inherent in statehood therefore it has to be specifically claimed by states. In the words of Dixon, it is a legal construct permitted by international law rather than a natural extension of land-based sovereignty (Dixon, 2007). Under Part VI of the LOSC, all coastal states are entitled to claim continental shelf (underwater extension of its land territory) up to the 200-n. miles limit of the EEZ (La Fayette, 2008). According to Article 76 of LOSC, all states have continental shelf up to 200- n. miles from the baselines of the territorial sea, even if there is no physical shelf or if it stops short of 200-n. miles (LOSC Art. 76(1)). Continental shelf rights are inherent in statehood, and do not have to be recognised by other states. Although the coastal state has sovereign rights for the purpose of exploiting the shelf s natural resources, these rights do not affect the status of the superjacent waters. Therefore, the waters above the shelf prima facie retain their status as high seas, though this will be modified for waters within the 200-n. miles limit where 5

7 the EEZ regime prevails. If the physical shelf extends beyond 200-n. miles, the state may claim sovereign rights over the resources of the shelf up to the edge of its natural prolongation (Dixon, 2007). This leads to the rights that a state has when the outer edge of its shelf extends beyond 200-n. miles, accounting for the first of the above defined components of the LOSC. II. Continental shelf beyond 200-n. miles 1. Substantive rights According to Article 76(1) of the LOS Convention, the coastal state has shelf rights to the outer edge of the continental rise, where the shelf goes beyond 200-n. miles as physical feature. The nature of the rights that coastal state may exercise over the extended shelf coincides with the rights over the area that falls within the 200-n. miles limit unless EEZ has been claimed. Given that the shelf and EEZ are legally autonomous, it is crucial at this point to shed light on two major differences between the two regimes. Most importantly, the waters of the shelf within 200-n. miles are comprised within the EEZ, if one has been claimed. This is notable because EEZ allows for the exploration and exploitation of all resources within the 200-n. miles limit, whereas the shelf covers non-living resources and only those living resources which are sedentary species. Furthermore, there is no obligation to share or conserve the non-living resources of the EEZ, while coastal states are obliged to contribute a percentage of its revenue to the ISA for the shelf rights beyond 200-n. miles (Dixon, 2007). 2. Delimitation of continental shelf Having discussed the substantive rights of coastal states under the LOS Convention, the question arises: how are continental margins delimited? The LOSC has adopted a complex formula for delimiting the continental shelf beyond 200-n. miles and also set up a Commission to assist states and facilitate the application of the formula (McDorman, 2009). In aiming to claim additional continental shelf, states are expected to map the continental margin beyond 200-n. miles and show how far out their land mass extends underwater, by determining the location of what the Convention calls the outer edge of the continental margin. In so doing, a state is first to prove that the mapped areas are appurtenant to the state s continental land mass. Once adjunction has been demonstrated, the state may move on to locate the edge of the continental margin by identifying the foot of the continental slope. 6

8 To do so, lines are drawn between fixed points that are located certain distance beyond the slope under one of the two formulae set out in Article 76. Finally, constraint lines must be drawn to the mapped areas in order to ensure that the definitive outer limit of the continental margin, as laid down in Article 76, is not exceeded (Baker, 2010). The continental shelf in law cannot go beyond 350-n. miles from the baselines of the territorial sea or 100-n. miles from the 2,500 metre isobath 3 (LOSC Art. 76 (5)). Critical in this context Potts and Schofield points out is the issue of distinguishing between submarine elevations and submarine ridges (Potts and Schofield, 2008). Whereas the 350-n. mile limit applies to submarine ridges, for submarine elevations, the 100-n. mile from the 2,500 metre isobath criterion is the limitation (McMillan, 1985). Yet, this issue remains exceedingly complex and has often sparked debates between states. Neither Article 76, which is to address the matter, nor the Commission s Scientific and Technical Guideline has been of great assistance on this issue: while the language used in former is arguably vague, latter merely states that the issue of ridges will be examined on a case-by-case basis. This may well illustrate the difficulties encountered by the drafters of the LOSC and the Commissioners in developing rules applicable to all geographical, geological and geomorphological circumstances (Potts and Schofield, 2008). Moreover, an array of technical and definitional difficulties have to be overcome, among others, in determining the foot of the continental slope or the 2,500 metre isobaths, making the above criteria not easily applicable in any given situation (McDorman, 2009). Baker highlights that the above phrases are juridical constructs coined by drafters of the Convention so that natural features of the continental shelf can be expressed in legal terms. Consequently, they may not always correspond with how scientists understand those natural features. As many have argued, Article 76 criteria appears to combine the influences of geography, geology, geomorphology, and jurisprudence (Baker, 2010; Johston, 1988). As previously mentioned, the Article 76 compromise also included the creation of the Commission on the Limits of the Continental Shelf. The purpose of CLCS is to facilitate the implementation of the LOSC with regard to the outer limits on the shelf beyond 200-n. miles (Dixon, 2007). Once states have collected scientific information demonstrating how their claim to an outer continental shelf conforms to the provisions of Article 76, they have to make a submission to the Commission. The Commission which is composed of experts in geology, 3 A line connecting the depth of 2500 metres. 7

9 geophysics, and hydrography will then make recommendations on the proposed limits to the submitting state. Limits established by a state on the basis of these recommendations will be considered final and legally binding. Importantly, the first submission has to be made within ten years of the Convention entering into force and revised or new submissions within a reasonable time after the decision on the first submission (Khan, 1985). Having said that, planting flags on the seabed appears to have no legal value. The Commission is nevertheless not a court, hence it is not authorised to determine or impose its views respecting the location of the outer limit of the continental margin on coastal states. It is the littoral state that ultimately determines the outer limit of its continental margin beyond 200-n. miles. Yet, Arctic states clearly appear to be abiding by what has been suggested by the Commission and showing signs of determination to provide additional information in support of proposed outer limit lines. In the words of McDorman, submitting states are treating the Commission as a body whose opinion matters and, as a result, a body which needs to be satisfied (McDorman, 2009). Indeed, two of the five Arctic coastal states, Russia and Norway, have already met their deadlines and also been given recommendations from the Commission, while Canada 4 and Denmark 5 on behalf of Greenland are working on their own Arctic submissions. As the United States has not yet ratified the LOSC, it currently cannot submit a claim to an outer continental shelf and will not face a deadline until it accedes to the Convention (Baker, 2010; La Fayette, 2008). There is, however, a serious limitation on the Commission s mandate, as it does not consider and qualify submissions respecting the outer limits of a continental margin where the area in question is subject to a dispute between states. Given that the likelihood of overlapping claims amongst Arctic states is unambiguously very high, questions may arise regarding the LOSC s capability of resolving disagreements over continental shelf claims in the Arctic (Holmes, 2008; McDorman, 2009). This leads to the issue of bilateral boundary delimitation, the third of the previously introduced components of the LOS Convention. 3. Disputes over bilateral maritime boundaries Bilateral maritime boundaries are set to separate the maritime zones of coastal states where their basic entitlements to a(n) territorial sea, EEZ and/or continental shelf overlap (La 4 As yet, Canada has not submitted any data to the Commission. It may do so until As Denmark made a submission with respect to the area north of the Faroe Islands to the CLCS in 2009, it may be found eligible to submit data respecting the Arctic region pursuant to Article 8, Annex II; even after its original deadline (2014). 8

10 Fayette, 2008). In the event that countries with opposite or adjacent coasts have overlapping continental marginal claims, Article 83 calls upon the parties in dispute to reach agreement by bilateral negotiations, in which they may use any considerations and criteria. In essence, the negotiation of maritime boundary agreement is political (McDorman, 2009). Should the states fail to compromise within reasonable period of time, they are directed by Article 38 to opt for third party settlement. Depending on their choice, they can take their dispute to the International Court of Justice, the International Tribunal for the Law of the Sea, or to ad hoc arbitration (La Fayette, 2008). Nonetheless, in pursuance of Article 298 Holmes notes each nation is allowed to refuse to accept any method of resolution for various categories of disputes, including boundary disputes between countries with opposite or adjacent continental shelves. He adds that each Arctic nation, with the exception Norway, have indicated that they reject all the dispute resolution provisions for disputes that arise in Article 38 (Holmes, 2008). Apart from urging states to come to an agreement, Article 83 also provides little guidance to states involved in maritime boundary disputes: the delimitation shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statue of the International Court of Justice, in order to achieve an equitable solution. It follows from the wording that no criteria or methodology is prioritised or suggested to be used by states or third party adjudicators in effecting a bilateral delimitation. States may thus resort to a range of legal arguments which, they think, have proven to be successful in past continental shelf disputes. As a result of the large number of boundary international adjudications in the past few decades, there has developed a common law in this field, showing remarkable but not totally uniform consistency (McDorman, 2009). In comparing the dominant methodologies and relevant circumstances in this common law to those in the Arctic practice 6, a few distinctive features can be noticed. As regards the methodology of maritime delimitation, there is a growing trend that international courts apply the so-called corrective-equity approach, whereas state practice in the Arctic tends to be rather diverse on this matter, as existing agreements do not collectively reflect any particular methods. Concerning the relevant circumstances, Tanaka notes that geographical factors are of primary importance in the case law and state practice in regards to maritime delimitation. He observes that the consideration of proportionality and existence of islands appear to have been key factors in the case law as opposed to economic factors (e.g. existence of natural resources) which have 6 Within the broad framework of common law, further and more specific regional practices can be identified such as the Arctic practice. 9

11 had negligible effect on the location of maritime boundaries. By contrast, the legal effect given to proportionality and islands are rather insignificant and vary on a case-by-case basis in Arctic maritime delimitations. Taking into consideration economic factors, however, appears to be unique feature of maritime delimitation in the Arctic region as they have proven to be incomparably significant factors in a number of cases. Further circumstances in the Arctic comprise the presence of ice, security interests, vulnerable marine ecosystems and traditional livelihood, although these elements have not directly affected the delineation of maritime boundaries in the region (Tanaka, 2011). Before going on to investigate the conduct of Arctic states through the lens of the LOSC provisions discussed above, one key point should not be forgotten. Although it may well be out of the Commission s jurisdiction to deal with submissions where the area in question is subordinate to dispute between states, this confine as shall be demonstrated below can be circumvented in several ways. Of these, one is of particular importance in Arctic context. In so far as a country obtains the consent of disputing countries that its submission and the work of the Commission would be without prejudice to subsequent bilateral delimitation, CLCS may consider the submitted information respecting areas that might be in dispute (La Fayette, 2008; McDorman, 2009). III. Arctic littoral states and the LOS Convention Having presented the rule and legal means provided for by the LOS Convention respecting continental margin beyond 200-n. miles, the central question of this paper can be raised: to what degree do the five Arctic states adhere to the above articles in their practice of voicing claims beyond 200-n. miles? The first state to file a submission with, and receive recommendation from the Commission was Russia in 2001 and 2002, respectively. This step has been seen as the recognition of legal certainty and legitimacy that the CLCS process might bring to its rights over the extended continental shelf. As the Commission has requested more data on the claim as well as several points of clarification, Russia has been gathering further information, primarily concerning the linkage between the Mendeleev and Lomonosov Ridges to the Russian continental margin. In doing so, Baker contends, Russia is abiding by the Rules of Procedure and Scientific and Technical Guidelines established by the CLCS and the states parties to the 10

12 Convention (Baker, 2010). The suit was followed by Norway that submitted information respecting a continental shelf beyond 200-n. miles in the Arctic, in November 2006 (CLCS, 2009). In December 2010, a partial submission by Denmark together with the Government of the Faroes was made to the Commission, which only concerned the Southern Continental Shelf of the Faroe Islands, the Faroe-Rockall Plateau Region. The submission nevertheless noted that Denmark would intend to submit separate information on maritime areas north, north east, and south of Greenland (CLCS, 2011). Canada has also long been making scientific and legal preparations for a claim to the CLCS that is due to be submitted by 2013 at the latest. Despite having not ratified the Convention, the U.S. participates actively in the international organisations that collaborate to address Arctic issues, and pursues a policy consistent with the LOSC (Sharp, 2011). Moreover, in January, 2009, then U.S. President George W. Bush gave green light to the new Arctic Region Policy in the form of a dual presidential directive. This contains several references to the LOS Convention, of which two are worth mentioning here: calling for U.S. accession, and recognising the Convention as the most effective way to achieve international recognition and legal security for the extended continental shelf of the U.S. (Baker, 2010). In the light of the above outlined events, it can be argued that as far as substantive rights and the criteria and process of the determination of outer limits of a continental shelf are concerned, there appears to be little doubt that the past and present conduct of the Arctic coastal states has been predominantly consistent with the LOS Convention. In the matter of maritime boundary delimitation, the efficiency of the LOSC is not as explicit as in the context of the other two components. As accentuated above, the Commission is not in position to deal with a submission that engages an overlapping area of the continental margin and the LOSC does not mandate any binding method of resolution for present and potential disputes between Arctic states. Yet, the Convention remains applicable and dominant in the Arctic, the reasons of which can be well illustrated by the dispute between Russia and Norway over a continental margin beyond 200-n. miles in the Beaufort Sea. Although a part of the continental shelf claimed by Russia in its submission in 2001 was disputed by Norway, the CLCS considered the entire proposal and subsequently provided Russia with recommendations. What made this possible was that Norway had declared that the information presented by Russia was without prejudice to bilateral delimitation and the actions of the Commission shall not prejudice the delimitation of the continental shelf between Norway and the Russian Federation (McDorman, 2009). In similar fashion, when 11

13 Norway submitted its claim for an outer continental shelf to the Commission in 2006, Russia and Denmark/Greenland stated in a letter that they had no objection to the Commission considering the data (La Fayette, 2008). This case well demonstrates the positive attitude of the Arctic states toward the Commission and their willingness to bypass the limitation on its mandate that would normally preclude it from dealing with submission subject to dispute between states. Therefore, it can be argued that Article 83, that directs parties to resort to the remedial provisions of the LOSC when states with opposite and adjacent coasts submit overlapping claims, is not likely to be invoked in the foreseeable future in the Arctic. It follows that Article 298, which allows nations to opt out of the binding dispute resolution provisions for disputes that arise under Article 83, will not play an important role in the Arctic region. In summary, it can be justifiably said that all of the five states in question regard both the LOS Convention and CLCS as an acceptable framework for determining sovereignty claims in Arctic waters. Thus, in spite of the deceptive media coverage, the relationship between the Arctic littoral states appears to have been marked by optimism and mutual cooperation. In Byers s words, thanks to international law, there is no race for Arctic resources nor is there any appetite for military confrontation. The Arctic, instead, has become a zone of quiet cooperation as countries work together to map the seabed (Byers, 2010). IV. A regional legal framework? Although empirical evidence appears to bolster up that the LOSC is adequate to resolve continental shelf disputes in the Arctic, some remain doubtful and claim that legally binding regional framework, based on the Antarctic Treaty System 7, is needed. In terms of disputes over continental shelf, the main argument of those in favour of an international agreement modelled after the ATS is that the LOS Convention does not require a binding dispute resolution. Besides the arguments made to counter this point above, there is more to set against it. 7 The Antarctic Treaty System is a multilateral treaty that governs activities in Antarctica. Its main goals are to preserve peace in Antarctica, to prevent military activity, and to promote scientific research. To that end, ATS halts all territorial claims to the continent for fifty years. 12

14 Young maintains that the most pressing challenges are driven by external factors, which could not be tackled with a regional legal framework. He adds that it is the responsibility of the Arctic Council to promote Arctic issues on global stage (Young, 2009). Furthermore, an Arctic agreement, strictly modelled after the Antarctic Treaty, would be inappropriate due to the several key differences residing in the two regions. The two poles indeed show more differences than similarities: the Arctic consists of ocean surrounded by continents, whereas the Antarctic is a continent surrounded by ocean; while the Arctic has permanent human habitation (indigenous people and other local communities), the Antarctic is uninhabited. In addition, Arctic states exercise sovereignty and sovereign rights over much of the Arctic, while the Antarctic sovereignty claims have been temporarily frozen which is why there are no territorial sovereigns in the Antarctic. Therefore, drawing inspiration from the ATS to develop an Arctic treaty seems problematic in many respects (Koivurova, 2008). The foremost difference lies in the legal basis of the polar regimes. Since it is precisely the lack of territorial sovereigns in the Antarctic that has facilitated the formation of the current ATS, the presence of territorial sovereigns in the Arctic does not allow much room to develop a collective model similar to the one in the ATS. In addition, Koivurova argues, it is too optimistic to believe that the international community or at least more extensive group of countries than the Arctic states would be able to agree on a comprehensive Arctic-specific treaty, given the presence of eight territorial sovereign eagerly yet in accordance with the international law protecting and even trying to enlarge their jurisdictional domain (Koivurova, 2008). Similarly, Potts and Schofield suggest that Arctic states are undoubtedly reluctant to yield domestic power to an international authority in the Arctic (Potts and Schofield, 2008). In the light of the above discussion, this study subscribes to the argument that if the focus of Arctic-wide cooperation eventually turns in the direction of a regional agreement, it should be led by marine environmental concerns rather than by the removal of the possibility to circumvent binding dispute resolution provisions; and build upon the already existing Artic Council structure. Yet, considering that Arctic-wide cooperation has developed on a step-bystep basis, from the Artic Environment Protection Strategy to the Arctic Council that has remained a soft law creature, such a major change seems unlikely to materialise in the near or even mid-term (Koivurova, 2008). 13

15 Concluding remarks The implications of ice melt in the Arctic are multiple. Whichever aspect is examined, it is crucial to separate evidence-based fact from sensationalist fiction. At the centre of attention have been sovereign rights which were of less importance when the Arctic was rather inaccessible, but which now engage all the five Arctic coastal states. However, what is portrayed by the media and few well respected academic writers as a conflict amongst states deriving from a scramble and race for Arctic resources, is in fact a scientific research carried out by Arctic littoral states to underpin their claims to continental shelf areas beyond 200-n. miles with legal certainty. In so doing, they act in accordance with the already existing international treaties. Primary importance is given to LOS Convention, in which principles and rules for establishing maritime boundaries and the outer limits of the continental margin are set out. Further assistance is provided by CLCS that examines whether extension claims are consistent with the scientific criteria. The findings of this study echo the view of the group of scholars who argue that the conduct of the five Arctic states has been highly in line with the LOS Convention when they claim sovereign rights to resources of their presumed continental shelf beyond 200-n. miles. Although Article 77(3) arguably grants states inherent rights to continental shelf, Arctic states remain committed to the submission of data to the Commission seeking its consent to their claims. As a result of the first submission made by Russia in 2001, Canada, Denmark, Norway and the U.S. have become increasingly stimulated to acquire necessary information that enable themselves to gain a thorough understanding of the Russian proposal and to analyse their own continental shelf beyond 200-n. miles. Five years after Russia, Norway submitted its own proposal to CLCS and received recommendation from the Commission in Although Canada and Denmark have not done so yet, they are fully expected to meet their deadlines. While the Commission is not entitled to act as a tribunal when overlapping claims exist between submitting states, this limitation has not hampered the consideration of Arctic submissions as result of the willingness of the five states to remove this restriction by giving their consent to the Commission s considering data. The LOS Convention thus seems to be an adequate framework to manage the issue of sovereign rights in Arctic waters, rendering an alternative treaty needless to discuss. 14

16 References Baker, B. (2010) Law, Science, and the Continental Shelf: the Russian Federation and the promise of Arctic cooperation, Vermont Law School. Byers, M. (2010) Cold peace: Arctic cooperation and Canadian foreign policy, International Journal, 65(4), Brosnan, I. G., Thomas, M. L., Edward, L. M. (2011) Cooperation or Conflict in a Changing Arctic, Ocean Development & International Law, 42(1-2), Commission on the Limits of the Continental Shelf (CLCS) (2009) Outer limits of the continental shelf beyond 200 nautical miles from the baselines: Submissions to the Commission: Submission by the Kingdom of Norway, United Nations. (Accessed 19 May 2012) Commission on the Limits of the Continental Shelf (CLCS) (2011) Outer limits of the continental shelf beyond 200 nautical miles from the baselines: Submissions to the Commission: Submission by the Kingdom of Denmark, United Nations. < (Accessed 19 May 2012) Dixon, M. (2007) Textbook on International Law (Oxford: Oxford University Press) Holmes, S. (2008) Breaking the Ice: Emerging Legal Issues in Arctic Sovereignty, Chicago Journal of International Law, 9(1), Johnston, D. M. (1988) The Theory and History of Ocean Boundary-Making (McGill-Queen s University Press) Khan, M. A. (1985) The Juridical Concept of the Continental Shelf, Pakistan Horizon, 38(2), , in H. Caminos (ed.), Law of the Sea (Burlington: Ashgate Publishing). Kuivurova, T. (2008) Alternatives for an Arctic Treaty Evaluation and new Proposal, Review of European Community & International Environmental Law, 17(1), La Fayette, L. A. (2008) Oceans Governance in the Arctic, The International Journal of Marine and Coastal Law, 23(3),

17 McDorman, T. L. (2009) The Continental Shelf beyond 200 nm: law and politics in the Arctic Ocean, Journal of International Law & Policy, 18(2), McMillan, D. J. (1985) The extent of the continental shelf: factors affecting the accuracy of a continental margin boundary, Marine Policy, 1985 April, , in H. Caminos (ed.), Law of the Sea (Burlington: Ashgate Publishing). Potts, T. and Schofield, C. (2008) Current Legal Developments: The Arctic, The International Journal of Marine and Coastal Law, 23(1), Sharp, T. L. (2011) The Implications of Ice Melt on Arctic Security, Defence Studies, 11(2), Tanaka, Y. (2011) Reflections on Arctic Maritime Delimitations: A Comparative Analysis between the Case Law and State Practice, Nordic Journal of International Law, 80(4), United Nations Convention on the Law of the Sea (LOSC) (1982), United Nations. < (Accessed 19 May 2012) United Nations Office of Legal Affairs (UN-OLA) (2011) Chronological lists of ratifications of, accessions and successions to the Convention and the related Agreements as at 03 June 2011, < > (Accessed 19 May 2012) Wezeman, S. T. (2012) Military Capabilities in the Arctic, Stockholm International Peace Research Institute. Young, O. R. (2009) The Arctic in Play: Governance in a Time of Rapid Change, The International Journal of Marine and Coastal Law, 24(2),

18 APPENDIX Figure one. Illustrating the 200-n. mile limits of the coastal states in the Central Arctic Ocean. Source: McDorman, T. L. (2009) The Continental Shelf beyond 200 nm: law and politics in the Arctic Ocean, Journal of International Law & Policy, 18(2), pp fig

19 Figure two. Showing the two constraint lines a state may use to define the outer limits of its continental shelf. Source: Extended Continental Shelf Project ( Available at ) (Accessed 18 May 18

20 Figure three. Showing four areas beyond the outer limits of the continental shelves of the littoral states. Source: McDorman, T. L. (2009) The Continental Shelf beyond 200 nm: law and politics in the Arctic Ocean, Journal of International Law & Policy, 18(2), pp fig