Russia and the Arctic: Opportunities for Engagement Within the Existing Legal Framework
Nonetheless, Russia’s gambit accelerated a media obsession with the Arctic. In the more than two years since Russia’s North Pole adventure—and against a backdrop of a retreating polar ice cap and rising temperatures3—journalists and scholars have come to describe the Arctic’s future in alarmist terms. These reports include warnings of “a race for control of the Arctic,”4 and a “coming anarchy” in which states will “unilaterally grab” as much territory as possible to secure new sources of oil and natural gas.5 Some describe the Arctic as the site of “an armed mad dash” and a potential source of a future armed conflict, likely involving the United States and Russia.6 This troubling picture has generated calls for a new international agreement—an “Arctic Treaty”—to provide a comprehensive legal regime for the region.7 In light of the above, it is easy to see why the casual observer would be left thinking that when it comes to the Arctic, we are operating in a legal vacuum.
But that is simply not the case. Indisputably, the Arctic poses many challenges, but it is not a twenty-first century incarnation of the Wild West. There are institutions and legal frameworks in place through which the challenges of Arctic governance and management can and should be addressed. As discussed below, the centerpiece of that framework is the 1982 United Nations Convention on the Law of the Sea (“UNCLOS” or “Convention”).8 Moreover, within the existing governance structure, Russia’s track record with respect to the Arctic—perhaps in contrast to Russia’s recent record elsewhere—has arguably been more positive than not. As such, rather than fixating on the Arctic as a flashpoint for confrontation, it may be more useful to consider the Arctic as an opportunity for constructive engagement.
There are currently 160 parties to UNCLOS, including four of the five Arctic coastal states: Canada, Denmark, Norway, and Russia (which joined in 1997).31 As of 2009, the United States had not yet acceded to the Convention, despite extensive and bipartisan support for it to do so.32 And while the United States bestows the status of customary international law on most UNCLOS provisions,33 the failure of the United States to accede to the treaty has deprived it of a “seat at the table when the rights that are vital to [U.S.] interests are debated and interpreted.”34 Non-party status precludes the United States from submitting an application for the recognition of any extended continental shelf it may be able to claim in the Arctic. Indeed, to the extent the United States is concerned about the adherence of Russia or any other country to the laws and norms that apply to the Arctic, the United States would considerably strengthen its position by swiftly acceding to the Convention.
Finally, is there a “Russian question” looming behind all of these issues? Whether we choose to proceed by strengthening and extending the existing framework where we must, or to develop new solutions, will Russia choose to participate within that system? As noted at several points above, Russia, by and large, is already doing so. Moreover, Russian officials have been at pains to counteract the characterization of the Arctic described at the beginning of this article: the faulty notion of the Arctic as a future battleground between Russia and the West. For example, the Russian Foreign Ministry has publicly stated that discussion of “a possible military conflict for Arctic resources is baseless” and that the problems facing the region will be resolved “on the basis of international law.”97 Even the provocative figure at the head of Russia’s North Pole expedition has sought to downplay the situation, remarking that “[n]obody’s going to war with anybody” and that while Russia will “defend [its] economic interests . . . a conflict in the near future” is unlikely.98 Moreover, the United States has largely acknowledged that Russia is adhering to the applicable rule of law, in particular with respect to the extended continental shelf.99 Simultaneously, Russia appears to be engaged with the international community when it comes to the Arctic: through the Arctic Council, through the IMO, and in bilateral and multilateral efforts with its fellow Arctic states.100
In sum, UNCLOS and a wide range of complementary international agreements and organizations provide a legal framework for the issues we face—or soon will face—in the Arctic. That is not to say the existing framework provides clear or robust rules for every situation. Nor can it guarantee that any state—Russia, the United States, or any other—will always conduct itself in a manner that lives up to international standards. But the framework provides an adequate starting point, and it should also remind us that “new” challenges facing the Arctic are not necessarily unique or unfamiliar. Many of these issues—from drawing maritime borders to promoting safe navigation to protecting the marine environment— are quintessential law of the sea issues to which international policymakers bring a wealth of experience.
For purposes of this assessment, however, the crucial point is that mechanisms exist for the peaceful establishment of these claims through the submission of scientific evidence to the Commission.58 And the Arctic states, including Russia, have been following the rules of the game, and, in some instances, working together to develop the necessary scientific data.59 It is important to keep in mind that while these claims may implicate very large tracts of territory (as Russia’s initial application certainly did), there is nothing inherently illegitimate about such claims; the extent of “the submerged prolongation of the land mass of the coastal State” and “the slope and the rise” of “the sea-bed and subsoil of the shelf” does not command a pari passu distribution of continental shelf among the Arctic states.60 In brief, some states’ shelves may simply be bigger than others. This outcome could be entirely consistent with the rule of law.
While there are legitimate reasons to be concerned that the Commission is overworked and understaffed, there is currently no indication that any country, Russia included, is prepared to charge ahead with an Arctic claim that has not received the Commission’s approval.61 Consistent with that view, it has emerged that February 2009 talks between Canada and Russia included discussion of a potential joint submission from Canada, Denmark, and Russia to the Commission.62 Such an application would not determine competing claims among the three countries, but would allow for demarcation of the area under the control of those coastal states from the area beyond. Furthermore, the collaboration required to produce a joint submission could itself be a valuable confidence-building measure that would defuse nascent disagreements over exactly where final borders should be drawn.
Without venturing into the intricacies of how an RFMO for the Arctic Ocean might be established and operated, the point is that the United States, Russia, and the other Arctic states are familiar with the challenges of managing sustainable fisheries and the consequences of failing to act proactively. Furthermore, all eight Arctic states have ratified the Fish Stocks Agreement, a strong indication “that all eight states have already accepted the principles established by [UNCLOS] that includes the enforcement of regional fisheries agreements in the high seas.”92 In short, cooperation among the Arctic states, including Russia, seems more likely than conflict on fisheries issues. The real question may be whether those states allocate sufficient resources to the enforcement of whatever regime is put in place.