Other nations are pursuing Arctic claims to the detriment of the U.S.
Russia, Denmark, Norway, and Canada are staking their claims to Arctic resources but the United States, which has conducted research on how far the continental shelf extends from Alaska toward the North Pole, cannot submit any of its evidence because it is not a party to the UN Convention on the Law of the Sea (UNCLOS).
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Highlighting the Arctic’s growing global importance, a number of countries with no geo- graphical links to the Arctic region but with important commercial and economic interests, such as China, South Korea, and the European Union, want to have a voice in future Arctic delibera- tions. France, Germany, Poland, Spain, the Netherlands, and the United Kingdom have been granted “permanent observer” status on the Arctic Council, and China is considered an “ad hoc observer.” Only Arctic Council member states have voting rights, and therefore “ad hoc observer” status does not differ from “permanent observer” with regard to the influence on the decision- making process in ministerial meetings. However, “ad hoc observer” status requires that nation to apply to be admitted to each Arctic Council meeting. The European Union’s application to become a “permanent observer” was blocked in 2009 by Arctic Council member Canada in response to the European Union’s ban on the importation of seal products. This example illustrates the chal- lenges of relying on the current structure of the Arctic Council for balanced and objective rulings, which often fall victim to paralyzing squabbles and the partial leveraging of national interests. On the other hand, the Arctic Five excludes nations and indigenous peoples with legitimate interests in the region, compromising its international credibility as a comprehensive governing arrange- ment. As rifts among international governance institutions continue to emerge, to the detriment of regional policy cohesiveness, the U.S. government must clarify how it wishes to primarily proceed with its multilateral Arctic engagement, either principally through the Arctic 5 ad hoc process or through the more institutionalized Arctic Council’s effort.
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Russia is in the lead for Arctic oil exploration in its region, with its neighbors not far behind. Last year, Russia announced plans for two oil giants to begin drilling as early as 2015.15 The Russian firm Gazprom is developing the Shtokman field in the Barents Sea, home to one of the world’s largest natural gas deposits. Russia has active oil and gas fields off western Siberia and is shipping oil from an offshore terminal in the Pechora Sea to Murmansk.16 Greenland is embarking on offshore drilling near Disko Island off its west coast.17 Norway has developed the Snoh- vit gas field in the Barents Sea near the Hammerfest and is shipping its output of liquefied natural gas to Europe and North America.18 In 2008, Canada received C$1.2 billion ($1.8 billion) from British Petroleum for rights to explore three parcels in Canada’s Beaufort Sea, north of the Arctic Circle.19 The world is one step closer to the Arctic economy. Rare earth minerals are also embedded in the Arctic. Red Dog Mine, the largest zinc mine in the world, is located in northwest Alaska and is quite profitable despite operating only 99 days a year.20 Across the Arctic in Siberia, is the Norilsk Nickel mining com- plex, which leads the world in nickel and palladium production, and is not far behind with copper.21 Rich iron ore deposits run through Canada in the Baffin Basin.22
As Russia, Denmark and Canada vie to stake their claims, a complicating factor is that a fourth country, the United States, has conducted research on how far the continental shelf extends from Alaska toward the North Pole and could potentially stake its own claim. However, the U.S. cannot submit any of its evidence because it is not a party to the UN Convention on the Law of the Sea (UNCLOS).
Norway, a fifth country that could conceivably have a territorial claim to the North Pole, has said that it will not pursue any claim under UNCLOS.
Russian officials are making repeated statements about the government's intent to claim jurisdiction over the North Pole through a coming submission of evidence to the Commission on the Limits of the Continental Shelf under UNCLOS. The submission will be a continuation of one made to the commission in 2001, which the panel determined insufficient. Russia was directed to resubmit its evidence “within a reasonable time.”
Canada and Denmark likely won't be far behind, claiming in recent submissions to the commission that they each will soon submit evidence that their continental shelves extend to the North Pole.
Canada made a partial submission to the commission on Dec. 9, 2013, on delineating its outer continental shelf in the Atlantic Ocean. It did not include data about the North Pole, but specifically reserved Canada's right to make a submission of such evidence in the future.
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Opponents to ratification argue that ratifying the treaty undermines U.S. sovereignty.64 In essence, in the event of a dispute, the ISA would have the ability to rule against the interests of the United States. Not only is this position outdated, it is incorrect. It assumes that the United States has the naval power to assure its interests at sea. However, U.S. naval power in the Arctic is limited, at best. Moreover, the continental shelf extensions in the Arctic are a perfect example of how ratifying the treaty would actually enhance U.S. sovereignty, rather than limit it. Additionally, ratifying a multilateral treaty would signal to the world that the United States will operate on the same set of rules agreed to by everyone. At a minimum, ratification would buy some badly needed international goodwill.
Chinese activity in the Arctic to some extent mirrors that of other non-Arctic countries, as the region warms.
The European Union, Japan and South Korea have also applied in the last three years for permanent observer status at the Arctic Council, which would allow them to present their perspective, but not vote.
This once-obscure body, previously focused on issues like monitoring Arctic animal populations, now has more substantive tasks, like defining future port fees and negotiating agreements on oil spill remediation. “We’ve changed from a forum to a decision-making body,” said Gustaf Lind, Arctic ambassador from Sweden and the council’s current chairman.
Even so, Arctic nations and NATO are building up military capabilities in the region, as a precaution. That has left China with little choice but to garner influence through a strategy that has worked well in Africa and Latin America: investing and joining with local companies and financing good works to earn good will. Its scientists have become pillars of multinational Arctic research, and their icebreaker has been used in joint expeditions. And Chinese companies, some with close government ties, are investing heavily across the Arctic. In Canada, Chinese firms have acquired interests in two oil companies that could afford them access to Arctic drilling. During a June visit to Iceland, Premier Wen Jiabao of China signed a number of economic agreements, covering areas like geothermal energy and free trade. In Greenland, large Chinese companies are financing the development of mines that are being developed around discoveries of gems or minerals by small prospecting companies, said Soren Meisling, head of the China desk at the Bech Bruun law firm in Copenhagen, which represents many of them. A huge iron ore mine under development near Nuuk, for example, is owned by a British company but financed in part by a Chinese steel maker. Chinese mining companies have proved adept at working in challenging locales and have even proposed building runways for jumbo jets on the ice in Greenland’s far north to fly out minerals until the ice melts enough for shipping. “There is already a sense of competition in the Arctic, and they think they can have first advantage,” said Jingjing Su, a lawyer in Bech Bruun’s China practice.
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The resource race of the 21st century requires that nations seek resources from every corner of the globe to meet growing demand.169 The seas—long considered valuable sources of minerals, food, and now, energy—are no exception.170
Not surprisingly, nations are racing to stake a claim to these resources.171 Russia made a bold move in August of 2007 by planting a flag on the Arctic Seacap at the North Pole in an attempt to reinforce claims it has been making since 2001 that it owns the resources on the floor of the Arctic Ocean.172 The Arctic Seacap is an especially sought after area since it “may hold billions of gallons of oil and natural gas—up to 25 percent of the world’s undiscovered reserves”173 and is rapidly melting, making it navigable for the first time.174 Russia’s actions met immediate resistance from members of the international community, and have sparked debate over the resources the sea holds and who their lawful owner is.175 In fact, one journalist commented that “[t]he polar dive was part publicity stunt and part symbolic move to enhance [Russia’s] disputed claim to nearly half the Arctic seabed.”176
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The Convention also gives the United States an opportunity to expand its sovereignty rights over resources on and under the ocean floor beyond 200 nautical miles to the end of its continental shelf, up to 350 nautical miles.140 This mechanism is especially valuable to the United States as it would maximize legal certainty regarding the United States’ rights to energy resources in large offshore areas, including the areas of the Arctic Ocean. However, the United States must ratify the Convention for its claims to be internationally recognized.141 Not surprisingly, the American oil companies favor ratification, as it will allow them to explore oceans beyond 200 miles off the coast, where evolving technologies now make oil and natural gas recoverable.142 If the United States ratifies the Convention it could expand its areas for mineral exploration and production by more than 291,383 square miles.143 The United States’ claim under article 76 would add an area in the Arctic (Chukchi Cap) roughly equal to the area of West Virginia.144 With a successful claim the United States would have the sole right to the exploitation of all the resources on and under the Arctic Ocean bottom. These potential energy resources could make significant contributions to United States energy independence. Because the Convention is the only means of assuring access to the mineral resources beneath the Arctic Ocean, American companies “wishing to engage in deep seabed mining operations will have no choice but to proceed under the flag of a country that has adhered to the treaty.”145
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The United States should neither underestimate China’s burgeoning interests in the Arctic region nor allow itself to be outdone by China. The Chinese have become acute observers of the region. According Dr. Robert Huebert, an internationally renowned Canadian expert on the Arctic at the University of Calgary, China has shown itself to be a quick study in Arctic affairs and has been doing a lot of very good homework on the region.108 The government of the United States should pay close attention to China’s engagement in Arctic affairs and consider its possible security implications, especially since the U.S. Navy in late 2009 observed that increasing economic and scientific activi- ties in the Arctic are “potential sources of competition and conflict for access and natural resources.”
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The 2009 article that started the series on Arctic issues in the Journal of the Ocean Uni- versity of China, “Research on the Issue of Arctic Environmental Law from the Point of View of International Law,” by Liu Huirong and Yang Fan of Ocean University’s School of Law and Political Science, is from start to finish an examination of environmental and legal issues pertaining to the Arctic.26 It contains no substantial discussion of specifically Chinese interests in the Arctic and does not regard or treat Arctic environmental issues as representing a legal or diplomatic back door through which China could enter the Arctic and then throw its weight around geopolitically.
Liu and Yang bemoan the present lack of a comprehensive international Arctic treaty, and consider extensively the reasons for the “fragmentation of international law” as it pertains to the Arctic environment. They also discuss at some length the contradictions among various treaties and instruments of environmental law, as well as between na- tional and international law. They then give suggestions for resolving these conflicts.27 In their conclusion they express optimism about UNCLOS as the best means for balancing international interests, characterizing the U.S. refusal to accede to the convention as an American liability:
Looking far and wide at the legal documents which can resolve disputes related to the Arctic and how each state implements them, [it is our opinion that] UNCLOS is the most effective path for balancing the rights and interests among each of the signatory Arctic states. In the present disputes, with the exception of the United States, all other countries have already ratified UNCLOS. As a nonsignatory state to UNCLOS, in the midst of the disputes over resources which are growing fiercer by the day, the United States is meet- ing up with risks and hazards [regarding access to] the rich resources of several thousand square kilometers of continental shelf. The position of the U.S. as a nonsignatory state in reality impedes its protection of its maritime interests. To protect their rights and interests in the Arctic region, every state has started paying serious attention to UNCLOS and hopes to find in it the legal basis for supporting its positions, this in order to win advantageous positions in international court decisions and obtain the recognition of international society.