The Canadian Arctic as seen from space. Photo Credit: NASA.
Since its inception, much of the discussion about the United Nations Convention on the Law of the Sea (UNCLOS) has centered on the United States’s refusal to ratify it which, according to proponents of ratification, has left US interests unsecured in a rapidly warming and increasingly accessible Arctic. However, the issues surrounding UNCLOS in the region run deeper than whether the U.S. should ratify the Convention or not. Rather, the U.S., together with its Arctic neighbors, and in particular the four other coastal states comprising the “Arctic Five” (A5)—Canada, Denmark, Norway, and Russia—should revisit how useful UNCLOS is as a framework for future Arctic governance. At least in its current form, the Convention is not wholly suitable for this purpose because it does not sufficiently consider the constantly changing circumstances of the Arctic environment due to climate change. This complicates the demarcation of maritime zones and the determination of extended continental shelf claims, potentially allowing for conflict over how Arctic shipping and resource management activities will be governed in the future.
When UNCLOS was created in 1982, the Arctic was added largely as an afterthought at the behest of Canada, the Soviet Union, and the U.S. In fact, most non-Arctic states refrained from adopting strong stances in the deliberations regarding the region, leaving the aforementioned trio to negotiate privately an “Arctic Deal.”[i] The result was the inclusion of Article 234, wherein ice-covered waters around the globe are subject to a special legal regime that permits coastal states to adopt and enforce nondiscriminatory laws for vessels traversing any ice-covered areas within their EEZs in order to prevent marine pollution.[ii] UNCLOS, and its inclusion of Article 234 despite its lack of specificity regarding the Arctic, has sufficed to appease Arctic states for more than two decades.[iii] In practice, this does not mean that UNCLOS itself represents the sole framework for the Arctic. Rather, it is part of a patchwork of other regionally-convened agreements that together govern the conduct of maritime activities such as shipping and resource management.
The spirit of the law of the sea, applied to the Arctic, will not be sufficient to address the challenges that climate change will pose. Importantly, the ambiguity in UNCLOS regarding ice-covered areas does not adequately enable the Convention to govern shipping in the Arctic. Specifically, in Article 234 the phrases “particularly severe climatic conditions,” “most of the year,” and “obstructions or exceptional hazards to navigation” do not clearly articulate what is actually meant by an “ice-covered area,”[iv] so naturally Arctic states have interpreted this in different ways. Russia and Canada, in particular, have used Article 234 to justify their jurisdictions over the Northern Sea Route (NSR) and Northwest Passage (NWP), respectively.[v] Their positions conflict with freedom of navigation principles, especially considering that the areas of high seas in the Arctic Ocean can only be accessed by navigating through the territorial seas or EEZs of the A5, including by way of these emerging maritime routes.[vi] Therefore, if Article 234 stipulations are interpreted this way, non-Arctic state vessels, and even those of Arctic coastal states, would be limited in how they enter the Arctic Ocean and maneuver in its adjacent seas. Climate change is calling into question the permanency of these ice covered areas, and in the future, the scope of Article 234 could vary depending on the extent of ice cover along Arctic routes.[vii] Notably, as ice cover recedes from Arctic waters more and more each year, it is debatable whether the NSR, NWP, or other maritime areas bordering coastal states can still be defined as ice-covered.[viii]
Climate change also complicates how extended continental shelves are determined in the Arctic, a task currently the responsibility of the geology, geophysics, and hydrography experts comprising the Commission on the Limits of the Continental Shelf (CLCS).[ix] Claims submitted to the CLCS must be supported by scientific and technical data, which is more complicated in the Arctic as ice coverage makes it difficult to conduct these studies.[x] To date, all of the A5—with the exception of the U.S.—and Iceland have made their submissions to the CLCS. Norway and Iceland have already received their recommendations from the Commission and for the most part settled their respective maritime boundary delimitations with adjacent coastal states. However, Russia’s (2015),[xi] Canada’s (2019), and Denmark’s (2014) claims overlap around the center of the Arctic Ocean by an area of 54,850 square nautical miles.[xii] In the future, continuing reduction in ice coverage will provide opportunities to revisit claims already settled and potentially alter agreed-upon delineations. Although maritime boundary delimitations made on the basis of CLCS recommendations are considered binding under UNCLOS, the introduction of new data made discoverable by retreating Arctic ice could prompt the region’s coastal states to eschew this stipulation.
There are also concerns about the usefulness of CLCS, and the underlying tenets of UNCLOS, to serve as a mechanism for resolving extended continental shelf disputes should they arise. Although UNCLOS has established procedures for peacefully settling legitimate overlapping claims,[xiii] it has generally been left to the relevant states to delimitate, amongst themselves, their maritime boundaries on the basis of recommended continental shelf delineations. While the 2008 Ilulissat Declaration did affirm the A5’s commitment to abide by the principles of the law of the sea in resolving their overlapping claims in the Arctic, much has happened in the decade since that could signal the fraying of this commitment. Notably, Russia’s annexation of Crimea, along with an Arctic military buildup that far surpasses that of its regional neighbors, has sparked concerns about how the state might react to an unfavorable recommendation from CLCS on its recently (re)submitted claim. After all, a state does not have to be a party to UNCLOS to exercise sovereign rights to explore or exploit the resources in its continental shelf up to, or in some cases beyond, 200M.[xiv], Furthermore, states are free to exercise these rights in their continental shelves without submitting claims to the CLCS.[xv] Therefore, while any state can choose to go through the CLCS process for clarifying or disputing recommendations, it can also take various forms of action outside this channel, including militarily, which would only intensify the geopolitical tensions coming to the fore in the Arctic.[xvi]
Whatever the propensity for conflict in the Arctic, the region is poised to test crucial UNCLOS provisions that were not even structured with the Arctic in mind.[xvii] If the Convention was ill-equipped to sort out the issues in a more consistently-frozen circumpolar north when it was conceptualized, it is even more underprepared now to address an Arctic environment in the throes of rapid, profound, and fluctuating climatic transformation. UNCLOS makes more sense for the world’s waters that are not in a constant state of change.
[i] Kristin Bartenstein, “The ‘Arctic Exception’ in the Law of the Sea Convention: A Contribution to Safer Navigation in the Northwest Passage?” Ocean Development and International Law, Vol. 42, Iss. 1-2, 2011, 27.
[ii] “United Nations Convention on the Law of the Sea (UNCLOS),” December 10, 1982, https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf.
[iii] “2008 Ilulissat Declaration,” Adopted at the Arctic Ocean Conference in Ilulissat Greenland, May 28, 2008, https://cil.nus.edu.sg/wp-content/uploads/2017/07/2008-Ilulissat-Declaration.pdf.
[iv] “United Nations Convention on the Law of the Sea (UNCLOS),” 1982.
[v] Jon Rahbek-Clemmensen and Gry Thomasen, “Learning from the Ilulissat Initiative: State Power, Institutional Legitimacy, and Governance in the Arctic Ocean 2007-2018,” Centre for Military Studies, University of Copenhagen, February 2018, 18, https://cms.polsci.ku.dk/publikationer/learning-from-the-ilulissat-iniative/download/CMS_Rapport_2018__1_-_Learning_from_the_Ilulissat_initiative.pdf.
[vi] Jacques Hartmann, “Regulating Shipping in the Arctic Ocean: An Analysis of State Practice,” Ocean Development and International Law, Vol. 49, Iss. 3, 2018, 276.
[vii] Alexander Proelss and Till Müller, “The Legal Regime of the Arctic Ocean,” Max Planck Institute (ZaöRV), Vol. 68, 2008, 685, https://www.zaoerv.de/68_2008/68_2008_3_a_651_688.pdf.
[viii] James W. Houck, “The Opportunity Costs of Ignoring the Law of Sea Convention in the Arctic,” Arctic Security Initiative, Hoover Institution, Stanford University, 2013, 4, https://elibrary.law.psu.edu/cgi/viewcontent.cgi?article=1240&context=fac_works.
[ix] “Continental Shelf Claims in the Arctic,” The Arctic Institute, June 27, 2017, https://www.thearcticinstitute.org/wp-content/uploads/2017/06/TAI-Infographic-ContinentalShelfClaims.pdf.
[x] Brian Finneran, “U.S. Policy in the Arctic: The Implications of the South China Sea Arbitration Award on American Policy and UNCLOS,” Penn State Journal of Law and International Affairs, Vol. 6, Iss. 1, June 2018, 304, https://elibrary.law.psu.edu/cgi/viewcontent.cgi?article=1184&context=jlia.
[xi] This is an update to Russia’s initial claim submitted in 2011. See: “A Quick Start Guide to the Law of the Seas in the Arctic,” The Arctic Institute, February 10, 2016, https://www.thearcticinstitute.org/wp-content/uploads/2016/04/TAI-Quick-Start-to-UNCLOS.pdf.
[xii] “Maritime Jurisdiction and Boundaries in the Arctic Region,” Department of Geography, Durham University, July 2019, https://www.dur.ac.uk/resources/ibru/resources/Arcticmap2019/IBRUArcticmapJune2019.pdf.
[xiii] “Maritime Jurisdiction and Boundaries in the Arctic Region,” Department of Geography, Durham University.
[xiv] See Articles 1 and 2 of the UN Convention on the Continental Shelf. Notably, because the U.S. has ratified the Geneva Convention, which precedes UNCLOS, it does not require the latter to exercise these rights over its continental shelf. “United Nations Convention on the Continental Shelf,” Adopted in Geneva, Switzerland, April 29, 1958, https://legal.un.org/ilc/texts/instruments/english/conventions/8_1_1958_continental_shelf.pdf.
[xv] Bjarni Már Magnússon, “Can the United States Establish the Outer Limits of Its Extended Continental Shelf Under International Law?” Ocean Development and International Law, Vol. 48, Iss. 1, 2017, 4.
[xvi] Stephanie Pezard, Abbie Tingstad, Kristin Van Abel, and Scott Stephenson, Maintaining Arctic Cooperation with Russia: Planning for Regional Change in the Far North, RAND Corporation Research Report, March 7, 2017, 46-48.
[xvii] Proelss and Müller, 687.