Finding the Right Forum: The Need for Novel Multilateral Diplomatic Solutions to Resolve Competing Territorial Claims Over the Arctic's Natural Resources
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Despite the realist orientation of the analysis, this article nevertheless contends that the best course of action to resolve the territorial disputes in the Arctic is through multilateral initiatives on areas of common interest (counter-terror operations, search and rescue, crisis management, etc.) that can result in a political detente among Arctic powers that may incentivize Arctic powers enough to consider the benefits of a formal multilateral agreement. Failure to adopt such an approach will result in a continuation of the current status quo. As noted by the Ilulissat Declaration17, the Arctic states are , objectively, firmly entrenched in their belief that the current legal system is enough to ￼￼provide answers to all the Arctic “questions”. Regardless of such belief, there is still no structure to provide orderly development in the unclaimed and disputed Arctic. But waiting for the issues to “work themselves out” may not be an option. The Arctic is ￼￼rapidly changing "19, and with such changes, what was once an inaccessible wasteland may be open to transportation, energy development, military deployments, and ￼￼political posturing. Absent some multilateral initiatives, the Arctic may become a mad “scramble for territory and resources”.20
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Beyond these legal infirmities, there are a bevy of political and economic reasons that indicate that if the Arctic is going to remain a place of peace and energy development, then the current status quo will need to change. Unfortunately, formalists still argue that the Arctic is a venue of “orderly development on the basis of the law of the sea”, noting with particular interest the Ilulissat Declaration and the supposedly conciliatory acts that Russia has taken in re its CLCS applications.78 They obstinately contend that international law will be enough to protect the current order and maintain ￼￼peace and stability (concluding that the opposition has “fantasies” of a new cold war) one even laughably concluding that “all ocean-related issues fall to be governed by the provisions of [UNCLOS].”79 Despite the formalists' viewing the Arctic through rose- colored glasses, the political reality indicates that the previous Ilulissat Declaration, and ￼￼￼the supposed “cooperation” that went with it is quickly fading. First consider that the Declaration was released on May 28, 2007, almost two months before the release of the USGS CARA study that reopened the possibility of energy development.80 Thus, the very declaration that the international law-centric formalists depend on became ￼￼obsolete two months after its release in the face of a wholly new environment in the Arctic. Since then, the Arctic has continued to become a place of international tension, especially as Russian relations with the West have begun to sour.81 Furthermore, the continued armament of Arctic states hardly warrants discussion from those who believe ￼￼that the Arctic is stable under current law, but the continued outfitting of Russian and Canadian naval forces would indicate greater problems.82
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There are economic considerations that also weaken the formalists' argument for the effectiveness of international law. First, because the legal regime for the Arctic is mostly made up of “soft law” that has no means of enforcement by international sovereigns, there no possibility that private sector actors (like oil companies and shipbuilders) will follow or consider soft law norms.83 In fact, there may be evidence to suggest that business objectives may be congruent with national ones, especially if a ￼￼nation's corporations and military view the Arctic as the key to future greatness, will CEOs be any more inclined to follow international law when their interests and the interests of their states are more or less the same?84 Secondly, the current regime may be unable to consider, let alone regulate, certain complex inter-corporation and inter- ￼￼ country partnership agreements that pose unique issues regarding profit-sharing, liability, responsibilities for security, and other important items.85 Thirdly, the Arctic's legal uncertainty has chilled86 economic development: Renowned financial services company Ernst & Young have noted that Arctic exploration is “not for the faint of heart” ￼￼￼￼because of “exceptionally long project lead times” and “overlapping/competing economic sovereignty claims”.87 An even more telling example can be found by surveying lease sale areas off the coast of Alaska: very few plots along the disputed US- ￼￼ Canada border in the Beaufort Sea have been leased, as opposed to areas farther away from the boundary line.88 This Author concludes that oil companies hesitate to develop and explore in the Arctic because of not just the inherent environmental and economic risks, but given the nature of the EEZs, the claims to the CLCS, the political tension and the general legal uncertainty, it would not be hard to wager that oil companies simply do not want to invest in an area if there is a possibility that a foreign government could simply claim that area or use a favorable ruling to divest that corporation of its exploration or drilling rights.
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When discussing the Arctic legal regime, the whole is not the sum of its parts. Returning briefly to the Ilulissat Declaration, the coastal Arctic states agreed together to leave the Arctic region largely unregulated, a problematic course of action given the increasing level of activity in the region.90 In addition to remembering the inadequacy of the Ilulissat Declaration, especially as perhaps the exemplification of the failures of purely bilateral talks, there are some general concerns to also consider when evaluating the salience of a bilateral solution. First, any solution crafted through using UNCLOS is a erroneous course given the US' reluctance to ratify the treaty.91 Second, any solution to the Arctic problem is only as effective insofar as the sovereigns are willing to implement that solution92, and given the previously noted insistence on the Ilulissat Declaration's sufficiency, why would states then decide to negotiate a new regime amongst ￼￼themselves bilaterally? Third, communal concepts like the “common heritage of mankind”93 or mediation processes are likely to fail because Arctic states not only disagree on the legal standards upon which such mediation would be made94, but it is also unclear under customary international law (as codified by UNCLOS) about what ￼￼￼￼level of responsibility each state owes to the other given the geographic nature of the Arctic Ocean.95 Fourth, bilateral agreements and negotiations have failed to truly resolve some key border disputes, and if after all of this time, why should the international ￼￼￼community assume that the states will solve these issues sua sponte?96 Finally, and most perniciously, the nature of the substantive problems in the Arctic virtually guarantee ￼￼￼that bilateral legal methods will be unable to achieve a resolution. Mostly because each of the state's individual policy goals are inopposite to other state's goals, and because each state may believe that it can achieve a superior outcome through its own means than through voluntary dispute resolution.97 This final point, of course, opens up a large range of additional issues that are surveyed below.
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Problematically, despite the increasingly obvious nature of the Arctic jurisdiction quandary, there exists a fair degree of disagreement on how to view Arctic both within the channels of government and academia.98 These fundamental differences of opinion doom a potential bilateral solution, because a treaty between one or more states would ￼￼necessarily require disambiguation and a clarification on where each party stands.99 At a basic level, bilateral negotiations and a treaty mechanism will fail for three primary ￼￼reasons. First, there is simply too much at stake in terms of both economic benefit and environmental risk: no state wants to assume liability for the wide range of environmental catastrophes that may befall energy developers,100 nor does any state want to negotiate away a potential energy windfall either.101 Thus, given the great uncertainties of the Arctic, there is little incentive for states to constrain their EEZ claims ￼￼￼￼via treaty, even though the need for a governance regime for the Arctic is becoming all the more necessary as time goes on. Second, the diplomats and leaders of the coastal Arctic states have explicitly provided in one form or another that the current status quo is enough, thus a bilateral treaty is unlikely to arise on its own.102 Furthermore, a bilateral treaty would likely undermine whatever cooperation may exist between the ￼￼coastal Arctic states by forcing a confrontation over the various boundaries, a confrontation that no one wants to have. Third, despite scholars' and politicians' insistence that nothing is wrong in the Arctic, the truth may be a little more nuanced for several reasons. Historically, the Arctic has been a theater of military tension and political gamesmanship,103 and despite current trends, there is no geopolitical guarantee that such tensions may not arise again.104 To illustrate this point, Arctic powers have begun to project their military power in the High North, for example, Russia has been building a large fleet of icebreakers to guard their interests.105 In this vein perhaps, the Russian Federation may have the most to lose and the most to gain in the Arctic Ocean106, even though Russia's interests may be in direct conflict with some of the interests of Scandanavian states.107 Thus, not only is a bilateral solution untenable, but there is some evidence to suggest that a multilateral mechanism may bear fruit.108 To solve the problem of Arctic territorial claims, multilateral fora like the Arctic Council and the NATO-Russia Council may be excellent environs for crafting a new solution.
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Another potential avenue could be to just let the problem “work itself out”. Consider the following: At the time of the USGS CARA study, geologists believed that most of the energy resources available for exploitation reside on the continental ￼shelf.128 With four of the five coastal states as signatories of UNCLOS, a solution to the ￼Arctic “problem” could be as easy as letting the CLCS adjudicate the claims in an ￼orderly manner.129 If the CLCS could settle the disputed territory, then the Arctic ￼conflicts would probably evaporate. Unfortunately, there may be little likelihood of this ￼occurring. Given the snail's pace at which the CLCS resolves claims, the impending ￼political and economic incentives for asserting a national presence in the Arctic, and the ￼possibility that CLCS judgments may be unenforceable under customary international ￼law, it is unlikely that such a course is a legally viable one. Furthermore, the USGS ￼CARA study did not include in its survey “unconventional” sources of energy, one of ￼￼￼which was oil/gas derived from shale.130 Perhaps, the Arctic may contain more energy ￼resources than anyone may currently believe, and, in such a case, no CLCS adjudication ￼would be likely to work in the face of such a stark new reality.
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Finally, one unique course may be to avoid a solution under public international law entirely, and instead, the Arctic coastal states may find a remedy through private ￼￼￼international law, perhaps through the humble bilateral investment treaty. Interestingly, ￼private enterprise has accommodated for an increasingly volatile environment of ￼energy exploitation—an environment in which investors have grappled with ￼governmental expropriation, unilateral changes to the tax regime, or other sources of ￼economic and political instability.131 If the coastal states were to enter into a bilateral ￼investment treaty specifically for the benefit of the oil and gas industry, the diplomatic ￼negotiations over such a treaty may accomplish what an ATS-style structure, the CLCS, ￼or any one of the formalists' legal “solutions” never could: provide the Arctic with a ￼stable legal regime. Because bilateral investment treaties often include dispute ￼resolution, security, investment protections, and a host of other facilitating mechanisms, ￼many of the Arctic's chilling effects on energy development may be avoided.132 While ￼the exact nature of such a bilateral investment treaty is beyond the scope of this Article, ￼an agreement under private international law could be a plausible way forward.
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This Author contends that the ideal model for solving the issues of Arctic jurisdiction combines elements of the multilateral solutions detailed above. An excellent ￼￼first step would be for the United States to ratify UNCLOS, so that it may participate in ￼the CLCS claim system so as to strengthen the force of CLCS decisions under customary ￼international law.133 Admittedly, with the partisan deadlock in the US legislature, it ￼may be some time before the Americans join UNCLOS. Ultimately, this Author ￼concludes that a realist approach (and courses of action in line with that approach) to ￼the Arctic situation would be the best for the continued stability of the region. For ￼example, military, political, and energy concerns have become so intertwined that it ￼would be difficult to analyze each interest separately vis-a-vis the Arctic.134 Thus, ￼public international law should make like the proverbial pedestrian in front of a bus ￼and should just get out of the way. Otherwise, if public international law stands opposite ￼￼practical considerations, then states will have to make a difficult and damaging choice ￼between the health of the international legal system and their own important interests. ￼But that does not mean that international law should be emasculated, the previous ￼contention simply rejects a formalist insistence on the primacy of public international ￼law, rather, compliance with international law is of equal concern to the Arctic states in ￼line with other concerns like cheap energy, secure borders, and a healthy environment. ￼Thus, international jurists should encourage cooperation and the implementation of ￼legal mechanisms when it is appropriate.