Cooling Things Down: The Legalization of Arctic Security

This paper was presented at a conference entitled "Carnegie Council's Program on U.S. Global Engagement: a Two-Year Retrospective."

The conference took place at the Pocantico Center of the Rockefeller Brothers Fund from June 1-3, 2011. Organized by the Carnegie Council in cooperation with the U.S. Army War College, the conference served to review and report on two years of program activity, and to generate new ideas and resources among an international group of innovative thinkers on U.S.-Russian relations, nuclear arms control and nonproliferation, European and NATO security challenges for the future, including Afghanistan, and competition and cooperation in the Arctic region.

The U.S. Global Engagement program gratefully acknowledges the support for its work from the following: Alfred and Jane Ross Foundation, Rockefeller Brothers Fund, Donald M. Kendall, Rockefeller Family & Associates, and Booz & Company.

INTRODUCTION

Throughout the Cold War, the United States and the Soviet Union squared off on opposite sides of the Arctic Ocean. Nuclear submarines prowled the depths, while long-range bombers circled overhead. A more cooperative approach emerged after 1990, with Moscow and Washington negotiating a boundary in the Bering Strait, Bering Sea, and Chukchi Sea that year. In 1996, the eight Arctic countries—Russia, United States, Canada, Denmark (Greenland), Norway, Sweden, Finland, and Iceland—created the Arctic Council to provide an inter-governmental forum for the discussion of nonmilitary issues. On the security front, the Russian government allowed Soviet-era warships to rust-out, while the U.S. and Canadian governments chose not to replace aging ice-breakers.

More recently, climate change and rising oil prices have given rise to concerns about possible struggles for territory and resources. In August 2007, Artur Chilingarov, the deputy speaker of the Russian Duma, caused a media frenzy by planting a titanium flag on the seabed at the North Pole and declaring "the Arctic is Russian."1 Canadian foreign minister Peter MacKay responded: "Look, this isn't the fifteenth century. You can't go around the world and just plant flags and say, 'We're claiming this territory.' Our claims over our Arctic are very well established."2

In October 2008, the European Parliament stirred things up further by calling for a new multilateral convention modeled on the 1959 Antarctic Treaty.3 In doing so, it was implicitly questioning the extensive rights of Arctic Ocean coastal states under the law of the sea. That same year, Scott Borgerson wrote: "The combination of new shipping routes, trillions of dollars in possible oil and gas resources, and a poorly defined picture of state ownership makes for a toxic brew."4

Cooler heads have since prevailed. One of the Russian scientists involved in the North Pole flag plant admitted that it was a publicity stunt lacking in legal relevance. Danish Foreign Minister Per Stig invited his counterparts from the other four Arctic Ocean coastal states (Canada, Norway, Russia, and the U.S.) to Ilulissat, Greenland, where they reaffirmed their commitment to resolving disputes within an existing framework of international law.5 The European Union issued an Arctic policy that recognized the primacy of the law of the sea in a region which, unlike the Antarctic, is centered on an ocean.6 U.S. Secretary of State Hillary Clinton spoke of the need for Arctic countries to work together: "We need all hands on deck because there is a huge amount to do, and not much time to do it."7 And in May 2011, the Arctic countries signed a multilateral search-and-rescue treaty, the first legal instrument negotiated within the framework of the Arctic Council.8 They also created a permanent secretariat for the Council, thus transforming it from an inter-governmental forum into a fully-fledged international organization.

As the following review will demonstrate, all this cooperation is made easier by the fact that most Arctic sovereignty disputes have either been resolved or are actively being negotiated. In short, there is no competition for territory or resources in the Arctic, and no prospect of conflict either.

RESOLVED SOVEREIGNTY DISPUTES

1973 Canada-Denmark Boundary Treaty

In 1973, Canada and Denmark agreed to divide the ocean floor between Canada and Greenland using an equidistance line, i.e. a line which at every point is an equal distance from each of the two opposing coasts. Since then, they have also used the resulting 1450 nautical mile boundary to define their fishing zones, meaning that the continental shelf delimitation has informally become an all-purpose maritime boundary.

1990 Bering Sea Treaty

There is no sovereignty dispute between Russia and the United States because Moscow and Washington negotiated a 1390 nautical mile all-purpose maritime boundary in 1990.9 The treaty contains some important innovations, including the use of so-called "special areas"—whereby sovereign rights generated as the result of proximity to one treaty partner's coastline, but cut-off from that coastline by the newly agreed boundary, are transferred to the other treaty partner so as to maximize their combined areas of national jurisdiction. Although the treaty was never ratified by the Russian Duma, it is fully respected in practice and could, eventually, become binding by prescription.

2006 Denmark-Norway Boundary Treaty

In 2006, Denmark and Norway negotiated an all-purpose maritime boundary between Greenland and the Norwegian Arctic archipelago of Svalbard.10 Roughly 430 nautical miles long, the boundary is based on the equidistance principle.

2010 Barents Sea Treaty

In 2010, Norway and Russia settled the Arctic's most significant remaining boundary dispute. Oslo and Moscow had previously contested 51,300 square nautical miles of the Barents Sea, with Oslo arguing that the boundary should be an equidistance line, and Moscow claiming that its security interests and substantial Arctic population justified a line that tracked straight north from the land border. The two countries have now agreed to split the difference, dividing the disputed seabed in half.11

The agreement is a model for bilateral cooperation. As in the 1990 Bering Sea treaty, the two parties have created a "special area" to maximize the combined extent of their sovereign rights. Foreseeing that some hydrocarbons might straddle the boundary, they have promised to co-manage those resources wherever such deposits are found. They have also agreed to continue their decades-long practice of co-managing the fisheries within the previously contested area, as well as in an area of high seas that is fully enclosed by their surrounding exclusive economic zones

REMAINING SOVEREIGNTY DISPUTES

Hans Island

In the entire circumpolar Arctic, the only dispute over land territory concerns Hans Island: a 0.5 square mile rock between northwest Greenland and Ellesmere Island. It was only in 1973, when Danish and Canadian diplomats were negotiating a 1,450 nautical-mile continental shelf boundary, that they became aware of a difference of opinion concerning title over Hans Island. Instead of delaying the talks, the negotiators drew the boundary line up to the low-water mark on one side of the island and continued it from the low-water mark on the other.

The insignificance of the dispute is reflected in the good humor with which both sides approach the matter. As Peter Taksoe-Jensen, the former legal adviser at the Danish Foreign Ministry, has said: "When Danish military go there, they leave a bottle of schnapps. And when [Canadian] military forces come there, they leave a bottle of Canadian Club and a sign saying, 'Welcome to Canada.'"12 In 2005, Canada and Denmark initiated negotiations.13 An agreement may now be imminent, with one possible outcome being the division of Hans Island exactly in half.

Lincoln Sea

The negotiators who delimited the boundary between Canada and Greenland in 1973 stopped when they reached the point where Nares Strait opens into the Arctic Ocean, which at that point is called the Lincoln Sea. As a result, the boundary out to 200 nautical miles offshore (the "continental shelf" and, later, Exclusive Economic Zone) was left unresolved.

In 1977, Canada claimed a 200 nautical-mile wide fisheries zone along its Arctic Ocean coastline. The zone was bounded in the east by a Lincoln Sea boundary that was based on the equidistance principle, using the low-water line of the coasts and several fringing islands as reference marks. Denmark drew its own line three years later but, unlike Canada, relied on Beaumont Island as a reference point. Using that 3.8 square mile island off the Greenland coast pushes the equidistance line slightly westward, adding two isolated, lens-shaped areas of 31 and 34 square nautical miles to the Greenland side.

The Lincoln Sea dispute is of little significance. It has no implications for the delimitation of Canada and Denmark's extended continental shelves beyond 200 nautical miles, because the two contested lens-shaped areas are less than that distance from shore. The dispute is currently being negotiated, with one option being to divide the two lens-shaped areas in half.

Beaufort Sea

In the entire circumpolar Arctic, the only remaining boundary dispute of any significance is in the Beaufort Sea. There, Canada and the U.S. both assert ownership of 6,250 square nautical miles of seabed within 200 nautical miles, and may soon claim even more beyond 200 nautical miles. The dispute revolves around differing interpretations of a 1825 treaty which sets the border between Alaska and the Yukon at the "meridian line of the 141st degree, in its prolongation as far as the frozen ocean."14 Canada interprets this provision to mean that the maritime boundary, like the land border, must follow the 141° W. meridian straight north. The United States holds that "as far as the frozen ocean" means the boundary follows the meridian only as far as the coast. Offshore, Washington argues that, in the absence of a controlling treaty provision, customary international law requires that the equidistance principle be applied. Since the coast of Alaska, the Yukon, and the Northwest Territories slants east-southeast from Point Barrow, Alaska, to the mouth of the Mackenzie River, an equidistance line would give more of the ocean and seabed to the United States.

The Beaufort Sea dispute has recently grown to include a large section of ocean floor more than 200 nautical miles from shore. According to the 1982 UN Convention on the Law of the Sea, coastal states may claim rights over an "extended continental shelf" - if the depth and shape of the seabed and the thickness of underlying sediments indicate a "natural prolongation" of the shelf closer inshore.15 When the longstanding U.S. and Canadian arguments on the Beaufort Sea boundary are applied to the area beyond 200 miles, they produce a surprising result.16 Predictably, the Canadian meridian-based line extends straight to the North Pole. The U.S. line, for its part, extends outwards in a north-northeastward direction from the coast for slightly more than 200 miles, creating the traditional triangular area of dispute. But then, the equidistance line turns sharply to the west—due to the presence of Banks Island, a large chunk of Canadian territory that frames the eastern edge of the Beaufort Sea. The line cuts back across the 141st meridian and continues towards the Russia-Alaska maritime boundary, which follows the 168º58'37" W. meridian north from the Bering Strait.

As a result, Canada and the United States now have to deal with two triangular areas of dispute: the pre-existing, southward pointing wedge within 200 miles from shore; and a new and possibly larger triangle beyond 200 miles. Scientific data collected recently by a pair of Canadian and U.S. icebreakers suggest that the continental shelf in this area may extend 350 or more nautical miles from shore. And since the two triangles are on opposite sides of the 141st meridian, the longstanding U.S. argument now potentially benefits Canada, while the longstanding Canadian argument potentially benefits the United States. The opportunity for a negotiated outcome is suddenly present, which explains why negotiations began in 2010.

Northwest Passage

As the sea-ice melts, shipping through Arctic waters is increasing dramatically. The Northwest Passage offers a 4,000 nautical mile short cut between East Asia and the Atlantic Seaboard, as compared with the route through the Panama Canal. The status of the Passage is disputed between Canada and the United States, with the former regarding it as Canadian internal waters, and the latter considering it an 'international strait." In 1988, the two countries concluded a cooperation agreement whereby they dealt with the issue of transits by U.S. Coastguard icebreakers by agreeing that Washington would always seek permission from Ottawa, and that permission would always be granted. Soon, however, melting sea-ice and increased foreign shipping will necessitate a new agreement, which complimentary security and environmental concerns should make it possible to achieve.

Access to the Northwest Passage is not at issue, since Canada would never deny entry to a close ally. Nor would recognizing Canada's claim necessarily create a damaging precedent—as the U.S. Navy fears—since sea-ice and the resulting infrequency of navigation have created a situation where the Northwest Passage is legally distinguishable from the other waterways the United States insists are international straits.

In the 21st century, when Washington's principal security concern is terrorists and other non-state actors, it makes no sense to have foreign vessels shielded from the application of coastal state's laws as they pass though a sizable portion of North America. It was for this reason that, in 2005, then U.S. Ambassador Paul Cellucci asked the State Department to reexamine the United States' legal position concerning the Northwest Passage.18 After his term in Ottawa was over, Cellucci made his personal views clear: "It is in the security interests of the United States that it [the Passage] be under the control of Canada."19

Northern Sea Route

The Northern Sea Route, which runs from the Bering Strait in the east to Novaya Zemlya in the west, offers a 40 percent reduction in the sailing distance between Northeast Asia and Europe. With the sea-ice along the Russian coast receding faster than anywhere else in the Arctic, commercial transits have already become an attractive proposition. Some 150,000 tons of oil, 400,000 tons of gas condensate and 600,000 tons of iron ore will be shipped through in 2011.

As with the Northwest Passage, only the coastal state and the United States have explicitly taken positions on the legal status of the waterway. Russia claims that the choke points between its mainland and the islands of Novaya Zemlya, Diksonskiy and Bol Lykahvskiy constitute internal waters; the United States says they are international straits. But Russia, with its still-powerful military, has no worries about foreign ships physically challenging its claim.

FUTURE SOVEREIGNTY DISPUTES?

Central Arctic Ocean

No country will ever "own" the geographic North Pole, which is located roughly 400 nautical miles to the north of Greenland, Canada's Ellesmere Island, and Russia's Franz Josef Land. Under the law of the sea each coastal state automatically has a 12-nautical mile territorial sea as well as an "exclusive economic zone" (EEZ) from 12 to 200 nautical miles offshore where, as the name suggests, it holds exclusive rights over the natural resources of the water column, ocean floor, and seabed. Beyond 200 nautical miles, coastal states may claim rights over an "extended continental shelf," but only if the depth and shape of the seabed and the thickness of underlying sediments indicate a "natural prolongation" of the shelf closer inshore.20

Parties to the UN Convention on the Law of the Sea are supposed to submit their claims and supporting scientific evidence within ten years of ratification. The submissions are considered by the UN Commission on the Limits of the Continental Shelf, which is made up of scientists elected by the ratifying states. Instead of responding with binding decisions, the Commission makes recommendations that, because they are based on geographic and geological facts, are treated as having considerable weight.

On the basis of what little we know about the Arctic Ocean so far, it is possible that either Russia, Denmark, or Canada will be able to scientifically demonstrate that the seabed at the North Pole is a natural prolongation of its continental shelf. If so, the country in question will have the exclusive right to exploit the resources of that area of seabed and nothing more. The water and sea ice will remain part of the high seas.

The same is true everywhere else that countries are determined to have extended continental shelves, and given the sheer size of the Arctic Ocean and the lengths of uncontested coastlines, these areas will be extensive. Russia will likely have rights over an expanse of seabed larger than Western Europe. Canada, with the world's longest coastline, will also have a massive extended continental shelf, as will the United States north of Alaska. Countries that do not border on the Arctic Ocean might feel left out, but because the law of the sea applies globally, many have the opportunity to assert similar rights along their coastlines.

Apart from the technical exercise of collecting and assessing the scientific evidence, the only significant issue concerning extended continental shelves involves possible overlaps between claims. An overlap can occur where there is a disputed maritime boundary closer inshore, since the dividing line beyond 200 nautical miles is usually simply an extension from the starting point. The Beaufort Sea is the only place in the Arctic where such a situation might pertain today, and boundary negotiations there are already underway. An overlap could also occur in the central Arctic Ocean, but because Canada, Russia, and Denmark have not yet completed their mapping, nobody knows whether such an overlap—and therefore a dispute—exists.

The UN Commission will not make recommendations with regard to overlapping claims. It is up to the countries involved to negotiate a solution, refer the matter to an international court or tribunal, or simply agree to disagree and not issue oil and gas exploration licenses. It is also possible for countries to facilitate the work of the Commission, either by giving it permission to issue recommendations with respect to a disputed area, or by making a joint or coordinated submission. Canadian and Russian diplomats have discussed these possibilities during at least two meetings.

OTHER ISSUES

Search and Rescue

The signing of a multilateral search-and-rescue treaty at an Arctic Council meeting in May 2011 confirms that cooperation, not conflict, has become the dominant paradigm in the North. The treaty was needed because hundreds of cruise ships and thousands of commercial airliners traverse the Arctic each year, making a major accident inevitable in that vast, inhospitable, and sparsely populated region. Although the treaty only requires Arctic countries to "promote the establishment, operation and maintenance of an adequate and effective search and rescue capability" in their geographic area of responsibility, it clarifies procedures for sharing information and assets—so that equipment and personnel can be deployed more quickly and effectively. And since many of those assets will be military in character, the treaty will build trust and reduce tensions between the armed forces of the various Arctic states.

High Seas Shipping and Fishing

Fishing has been limited in the Arctic Ocean by an absence of commercially attractive species and the near-constant presence of sea-ice. But now, with the ocean warming and the ice melting, Pacific Sockeye Salmon, Atlantic Cod, and other species are moving north. Within 200 nautical miles from shore, jurisdiction to regulate fishing falls exclusively within the jurisdiction of the coastal state. But stocks that live in the high seas beyond the EEZ, or move between the high seas and the EEZ or between the EEZs of adjoining states, can only be protected adequately through international cooperation. A fisheries agreement will eventually be needed for the international waters in the central Arctic Ocean, with the most likely course being the creation of a regional fisheries organization within the framework of the 1995 UN Agreement on Straddling and Highly Migratory Fish Stocks. In the meantime, the United States has imposed a moratorium on commercial fishing within its Arctic waters, and other countries are being urged to follow suit.

Trans-Boundary Pollution

Arctic offshore drilling has only ever involved a few exploratory wells, and as a result, governments have never adopted regulations specifically designed for the considerable risks presented by such a remote and inhospitable region. Two factors have caused this situation to change: a recent rise in world oil prices; and the April 2010 blowout of a BP rig 41 miles off the Louisiana coast, which resulted in a spill of between three-eight million barrels. Arctic offshore drilling carries important transnational implications because some of the activity will occur close to international maritime boundaries in the Davis Strait between Greenland and Canada, in the Beaufort Sea north of Alaska and the Yukon, and in the Beaufort Sea north of Russia and Norway.

In 1997, the Arctic Council adopted a set of "Arctic offshore oil and gas guidelines," which it updated in 2002 and again in 2009.21 The guidelines include some general principles as well as a number of more detailed recommendations. But in addition to being non-binding, the guidelines deliberately avoid some of the more contentious issues—such as whether operators should be required to maintain the capacity to sink a relief well during the same drilling season, by stationing another rig close-by.

In May 2011, the Arctic Council initiated a negotiating process for a treaty on oil spill response and clean-up.22 Although this step towards greater cooperation is laudable, an oil spill prevention treaty is also needed; one that builds on the Arctic Council's guidelines by addressing, not just the easier challenges, but also some of the more difficult ones.

Non-State Security Threats

Twenty years after the Cold War, the threat of interstate conflict in the Arctic is dramatically reduced. Russia is a member of the G20, the Arctic Council, and a soon-to-be member of the World Trade Organization (WTO). Its largest trading partner is the European Union, which is made up mostly of NATO states. In 2010, Russian military spending was just a small fraction of that of the United States ($ 58.7 billion USD versus $ 698 billion USD).23

China likewise does not pose a military threat, especially in the Arctic which is remote from its shores. The world's largest trading nation, China, is a member of the WTO. It has also ratified the UN Convention on the Law of the Sea and is using the same provision of that treaty as Arctic countries—in its case, to assert sovereign rights over an extended continental shelf in the East China Sea. And while China's military budget is growing, in 2010 it was just $119 billion USD, less than one fifth of U.S. expenditures, and less than that of France and Germany combined.24

These assessments about Arctic security are shared by NATO leaders. In May 2010, Admiral Gary Roughead, the U.S. Chief of Naval Operations, issued a memorandum on "Naval Strategic Objectives for the Arctic" that stated "the potential for conflict in the Arctic is low."25 "The Arctic is a peaceful region where any issues that arise can be resolved in accordance with international law,"26 said Prime Minister Stoltenberg of Norway later that summer. And in August 2010, the Government of Canada's Statement on Arctic Foreign Policy said: "Canada does not anticipate any military challenges in the Arctic and believes that the region is well managed through existing institutions, particularly the Arctic Council."27

Instead, the Arctic security threats that exist concern non-state actors, such as drug smugglers, gunrunners, illegal immigrants, and even terrorists, who might take advantage of ice-free Arctic waters to move contraband or people between the Pacific and Atlantic oceans or into North America or Europe. These threats from non-state actors were recognized by former U.S. Ambassador to Canada Paul Cellucci who, in August 2007, said: "I think, in the age of terrorism, it's in our security interests that the Northwest Passage be considered part of Canada. That would enable the Canadian navy to intercept and board vessels in the Northwest Passage to make sure they're not trying to bring weapons of mass destruction into North America."28

Although the Northwest Passage dispute has not yet been resolved, cooperation on non-state threats is moving forward quickly. For example, in May 2006, the North American Aerospace Defense Command agreement was renewed and expanded to include the sharing of surveillance over maritime approaches and "internal waterways" between Canada and the United States—including the Northwest Passage. More recently, in August 2010, military personnel from the United States, Russia, and Canada participated in a joint exercise designed to test their response to the hijacking of a commercial jet in international airspace, in this case over the Bering Sea.

Conclusion

Climate change has thrust the Arctic into the center of international relations, where it will likely now stay. This rapid repositioning of the region has caught politicians, journalists, and scholars unprepared and ill-equipped to analyze and explain what is happening. As a result, too much emphasis has been placed on the remote possibility of inter-state conflict, and not enough on the strong trend towards cooperation that is actually taking place. In the early 21st century, the security threats in the Arctic concern non-state actors, and all northern governments—including Russia—are working together to counter and contain them.

NOTES

1 Paul Reynolds, "Russia Ahead in the Arctic 'Gold Rush,'" BBC News, August 1, 2007.

2 Owen Matthews, "The Coldest War: Russia and the U.S. Face Off Over Arctic Resources," Daily Mail, May 19, 2009.

3 European Parliament Resolution of 9 October 2008 on Arctic Governance.

4 Scott Borgerson, "Arctic Meltdown," (2008) 63 Foreign Affairs 67.

5 The Ilulissat Declaration, Arctic Ocean Conference, Ilulissat, Greenland, May 27-29, 2008.

6 Council of the European Union, Council Conclusions on Arctic Issues, Dec. 8, 2009.

7 BBC News, "Hillary Clinton Criticises Canada over Arctic Talks," March 30, 2010.

8 Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic, May 12, 2011.

9 Agreement between the United States of America and the Union of Soviet Socialist Republics on the Maritime Boundary, June 1, 1990.

10 Alex G. Oude Elferink, "Maritime Delimitation Between Denmark/Greenland and Norway," (2007) 38 Ocean Development & International Law 375-80.

11 2010 Treaty between the Kingdom of Norway and the Russian Federation concerning Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean

12 Christopher J. Chipello, "Canadian Military Forces Reclaim their Frozen North," Wall Street Journal, May 6, 2004.

13 Canada-Denmark Joint Statement on Hans Island, Sept. 19, 2005.

14 Great Britain/Russia: Limits of Their Respective Possessions on the North-West Coast of America and the Navigation of the Pacific Ocean, St. Petersburg, February 16, 1825, 75 Consolidated Treaty Series 95.

15 Article 76, UNCLOS, available here.

16 For a map of the newly expanded dispute, see: http://byers.typepad.com/arctic/beaufort-sea-us-and-canadian-claims.html.

17 Agreement between the Government of Canada and the Government of the United States of America on Arctic Cooperation, Canada Treaty Series 1988, No. 29.

18 "Online Dialogue with Ambassador Cellucci," March 9, 2005, U.S. Embassy "North of Sixty" website, at: http://www.canadanorth.usvpp.gov/yukon/chat.asp

19 "Canada Should Control Northwest Passage," CTV News, August 19, 2007.

20 Article 76, UNCLOS, op. cit.

21 For the 2009 version, see Arctic Offshore Oil and Gas Guidelines 2009.

22 Nuuk Declaration of the Arctic Council, May 12, 2011, available here.

23 "The 15 Countries With the Highest Military Expenditure in 2010," Stockholm International Peace Research Institute, 2010, available here.

24 Ibid.

25 U.S. Chief of Naval Operations, "Naval Strategic Objectives for the Arctic," May 21, 2010, p. 3, available here.

26 Gerard O'Dwyer, "Norway To Work for Russia-NATO Arctic Cooperation," Defense News, September 22, 2010.

27 Statement on Canada's Arctic Foreign Policy, August 2010, p. 25.

28 Jim Brown, "Ex-Envoy urges U.S. to Back Canada on Arctic," Martechpolar Polar News.