UNCLOS is best regime for Arctic Governance
UNCLOS represents the consensus of decades of debate on how best to govern shared ocean resources and to handle disputes over border conflicts. The Arctic nations have settled on UNCLOS, adopting it in their laws and subsequent agreements, and it forms the basis for governance of the Arctic region.
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Arctic states are also cognizant of the fact that the current legal framework provides an opportunity for them to obtain effectively sovereign control over the hydrocarbon-rich Arctic waters. The main goal of the United Nations Convention on the Law of the Sea (“UNCLOS”), the international regulatory framework governing the use of the world’s oceans and seas, is to:
facilitate international communication, and . . . promote the peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment.5
Part VI of UNCLOS is key to Arctic hydrocarbon development because it governs the boundaries and extent of states’ sovereign control over offshore natural resources.6 A state exercises “sovereign rights for the purpose of exploring [its continental shelf] and exploiting its natural resources” and may exclude other states from doing so without its consent within its continental shelf.7 As a default rule, a state’s continental shelf extends to the greater of the outer edge of its continental margin8 (up to 350 nautical miles), or 200 nautical miles from the baselines9 from which the breadth of the territorial sea is measured.10 The burden is on the coastal state to establish that the outer edge of its continental margin extends beyond 200 nautical miles.11 To do this, the state must submit certain information outlined in Article 76 to the Commission on the Limits of the Continental Shelf (“CLCS”).12 The CLCS, consisting of twenty-one experts nominated by individual states and elected by all parties to five-year terms, can accept or reject the claims.13 If the CLCS rejects the claim, the state must revise its submission to conform to the formula set out in Article 76.14 The limits established by the state are final and binding.15 Finally, the state provides the Secretary-General of the United Nations with charts and relevant data describing the established outer limits, and then the information is published.16
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So far, the goal of the Arctic states seems to be cooperation in protecting the environment while encouraging investment in hydrocarbon development. This goal is reflected in both regional and country-specific documents. At a regional level, Arctic states have repeatedly declared goals for cooperation. For example, the Ottawa Declaration established the Arctic Council—the main regional coordinating body of Arctic states—in 1996 with the following mission statement:
[T]o provide a means for promoting cooperation, coordination and interaction among the Arctic States, with the involvement of the Arctic Indigenous communities and other Arctic inhabitants on common Arctic issues; in particular, issues of28 sustainable development and environmental protection in the Arctic.
More recently in 2008, five key Arctic states—Canada, Denmark, Norway, the Russian Federation, and the United States—adopted the Ilulissat Declaration, claiming a set of unified policy goals.29 The Ilulissat Declaration captured the following regional policies of the Arctic States:
- commitment to the current legal framework and an observation that there is “no need to develop a new comprehensive international legal regime to govern the Arctic Ocean;”30
- recognition of the role of the Arctic States in protecting the unique Arctic ecosystem; and
- commitment to a cooperative approach to making Arctic development a sustainable undertaking.31