Scramble for the Arctic: Layered Sovereignty, UNCLOS, and Competing Maritime Territorial Claims
In August 2007, Russian scientists descended 4,261 meters (13,976 feet) beneath sea level at the North Pole, using two dual-manned submers- ibles, Mir-1 and Mir-2.18 The mission had two purposes: first, to collect samples of soil from the seabed directly beneath the North Pole, which is within the claims that Russia submitted to the commission and along the Lomonosov Ridge; and second, to place a one meter tall titanium Russian Federation flag, creating nationalist symbolism behind Russia’s claim and reinforcing its dedication to being a major power, both scientifically and economically, in the Arctic region.
Because of the suddenness of the claim by Russia, four other countries with a potential stake (Denmark, Norway, the United States, and Canada), and one without a stake (Japan), have submitted written responses to the Commission. Denmark and Canada have both refused to offer an opinion immediately after Russia’s submission, citing the necessity of additional and more specific data.19 The remaining countries, the United States, Norway, and Japan,20 have offered negative responses. Norway, having submitted a claim in November 2006 (beyond their 200 nautical mile EEZ) that does not overlap with Russia’s claim, was most concerned with overlapping claims along mutual borders, a “maritime dispute” that has not yet been settled and which could be problematic for both countries.21 The United States submitted a detailed response, using scientific data to support a position that neither the Alpha-Mendeleev or the Lomonosov Ridges are part of any state’s continental shelf, but are rather independent features consisting of magma or freestanding formations. The official U.S. position advised:
The integrity of the Convention and the process for establishing the outer limit of the continental shelf beyond 200 nautical miles ultimately depends on adherence to legal criteria and whether the geological criteria and interpretations applied are accepted as valid by the weight of informed scientific opinion. A broad scientific consensus of the relevant experts... is critical to the credibility of the Commission and the Convention.22
This statement suggests that the United States would like the convention and commission to look strongly and carefully at the evidence presented by Russia before determining any course of action. It also indicates that the United States is first deferring to the standards established in UNCLOS for dispute settlement, despite not being a signatory to the agreement.
The United States is among the countries that believe they have a stake in this Arctic sweepstakes, though it alone is a non-signatory country to UNCLOS. In 2008, the U.S. government spent $5.6 million to prove that the United States’ continental shelf off Alaska extends beyond the 200-mile EEZ limit.51 This research, conducted by the U.S. Extended Continental Shelf Project (ECSP), a task force made up of eleven different agencies, has been ongoing since 2001 in anticipation of the ratification of the convention. In addition to sending cruises to map the arctic seafloor, the U.S. ECSP also conducts seafloor-mapping research off the Atlantic East Coast, the Gulf of Mexico, the Gulf of Alaska, in the Bering Sea, the Kingman Reef, and the Marianas Islands.
However, since the United States is not a signatory state to UNCLOS, it does not have access to the forum in which potential claims could be protected. Despite being deeply involved in the initial actions that led to the creation of UNCLOS, the United States has yet to ratify the treaty. President Reagan described the treaty as “socialism run amok” and a “third world giveaway.”52 Conservatives strongly dissent with the claim made by the convention that seabed wealth beyond territorial limits is the world’s common heritage. Yet there is significant area north of current holdings off the Alaskan North Slope that could be solidified, and claimed as within American territorial limits. This seems to be at the heart of the shift away from such a hardline Republican position: Other countries are extending the delineation of their territory, and less is being left as “common heritage."53
While the United States debates whether or not the convention would undermine U.S. sovereignty, Russia, Canada, and the other Arctic nations are doing all they can to prove that these newly available territories belong to them. By waiting to ratify the convention, the United States risks losing potential territory to countries that are already operating under the treaty, specifically Canada. For example, the Beaufort Sea includes an area where the EEZs of the United States and Canada overlap. Predictably, the two countries have differing opinions on how the area, which covers more than 7,000 square nautical miles, should be demarcated. Canada argues that the treaty signed between Russia and the United Kingdom in 1825, defining the boundary as following the 141° west meridian “as far as the frozen ocean,” should stand. The United States position is that since no maritime boundary was ever negotiated between Canada and the United States, the boundary should run along the median line between the two coastlines. This is the kind of territorial dispute the United States stands to lose by not ratifying the convention.
In order to have a legitimate say in the dividing of the newly available Arctic resources, one approach is that the United States should ratify the United Nations Convention on the Law of the Sea as soon as possible.56 Almost all opposition to the convention can be attributed to old-guard politics and irrational distrust of international organizations like the United Nations. According to J. D. Watkins and L. E. Panetta, “The Law of the Sea Treaty has a diverse and bipartisan group of experienced national backers, including military leaders, environmentalists, ocean industries, think tanks and political figures who recognize and support the pressing need to sign this treaty.”57 By ratifying the treaty, the United States would not only be able to further its own goals in relation to the Arctic Scramble, but also take on a leadership role in international negotiations. Failure to do so may result in a loss of claimable Arctic territory and the resultant strategic resources.
Fifth and finally, it does seem that UNCLOS reflects a larger sea-change in how the international community, and legitimate international governing bodies, can create frameworks for cooperative action, or at least limit the damage of non-cooperative action. As such, by including dispute-resolution mechanisms in future framework agreements, IGOs like the United Nations can productively expand into new or emerging areas of global governance. Accordingly, it does appear that the Arctic Scramble, and maritime disputes elsewhere, need not recall the imperial division of Africa. Rather, there appears to be widespread recognition and acceptance of UNCLOS as the legitimate framework for establishing, defining, deciding, and resolving disputes on maritime territorial issues. Merely by existing and coming into legal standing with ratification, UNCLOS delegitimizes the traditional power-politics methods of settling the disputes. Instead, UNCLOS is overtly designed to handle these events. By defining the rules of the road, and by defining where the road begins and ends, UNCLOS is the discursive legisla- tor, judge and policeman on the maritime highway. And no one, as yet, is seriously challenging that role, at least in the Arctic.