Revision of U.S. ratification of UNCLOS would help resolve disputes with Russia in Arctic from Sat, 06/28/2014 - 16:06
Tension between Russia and other Arctic nations will remain high as they continue to compete for Arctic territory. Maintaining UNCLOS as a viable legal framework for settling Arctic territorial claims should help avert potential confrontations between Russia and other UNCLOS members.
Quicktabs: Arguments
Both Canada and the Russian Federation have enacted regulations that the United States believes amount to unwarranted restrictions on the right of transit passage. Canada, for example, imposed a mandatory ship reporting and vessel traffic service system (NORDREG) that governs transit through the Northwest Passage.29 NORDREG covers Canada’s EEZ and the several Northwest Passage routes in the Canadian Arctic Archipelago.30 Canada specifically cites UNCLOS Article 234 to justify NORDREG, asserting that the reporting requirements are to prevent and reduce marine pollution from vessels in the delicate Arctic waters.31 Similarly, the Russian Federation has historically limited transit passage in the Northern Sea Route,32 using UNCLOS Article 234 to justify the limitations,33 and has recently implemented more extensive unilateral regulations to ensure shipping safety and environmental protection.34 With receding amounts of ice for significant portions of the year, whether the Northwest Passage or the Northern Sea Route meets Article 234’s climatic requirements for ice- covered areas is debatable.35
Under UNCLOS, coastal states seeking to prescribe sea-lanes and traffic separation schemes in straits used for international navigation must receive approval by a “competent international organization” prior to adoption.36 The International Maritime Organization (IMO) fills this role. The United States is working with other Arctic nations through the IMO to create a mandatory “Polar Code” that will cover all matters relevant to ships operating in both Arctic waters and the waters surrounding Antarctica.37 The IMO recently announced that the Polar Code will be operational as early as 2015 and will be implemented by 2016.38 The extent to which the Polar Code reconciles Russian and Canadian interests in regulating the Northern Sea Route and Northwest Passage with freedom of navigation interests will be critical.
The world is at a precipice of a potential new cold war in the Arctic between Russia and the NATO Arctic nations. Russia is in a position to win it. The number of icebreaking hulls a country operates is the simplest and most tangible measure that can be used to judge its ability to conduct northern operations. The United States has a total of four diesel-powered icebreakers (one of which is out of service for this year) whereas the Russians have 14.51 Of the 14, seven are nuclear-powered--capable of cutting through nine feet of ice without even slowing down. In comparison, the U.S. icebreakers can only make it through six feet of ice at a constant speed.52 Even China and South Korea, non-Arctic nations, have icebreakers in preparation for regional access.53
In addition to greater Arctic naval power, the Russians also have a superior support infrastructure. The Soviet Union, in sustaining the Northern Sea Route and oil development in the Barents Sea, invested tremendous capital in developing a robust infrastructure of rail lines and river transport services. It maintained this infrastructure by offering state workers huge subsidies and inflated wages. Following the collapse of the Soviet Union, and the loss of state jobs, the region experienced a significant reduction in population. However, the Russian North still has a fully functioning infrastructure in place.54 Meanwhile, the North American presence is ―naked and unguarded.55
Russia intends to use these weaknesses along with divisions among the NATO members to increase its power in the region. According to a leading Russian economic journal, ―...Russia’s main task is to prevent the opposition forming a united front. Russia must take advantage of the differences that exist [between NATO states]."56 Moreover, a prominent Russian Navy journal acknowledged that an increase in regional militarization could increase the possibility for local military conflict. ―Even if the likelihood of a major war is now small, the possibility of a series of local maritime conflicts aimed at gaining access to and control over Russian maritime resources, primarily hydrocarbons, is entirely likely."57
Conflict in the region, however, is not inevitable. Among the NATO allies, especially, there have been plenty of diplomatic successes to resolve differences. All the parties within the region have shown a willingness to work within the constraints of international law. Even Russia, despite its flag-planting antics, has accepted those constraints. In discussing Russia’s position on Arctic policy, its Ministry of Foreign Affairs released the following press statement, ―Russia strictly abides by the principles and norms of international law and firmly intends to act within the framework of existing international treaties and mechanisms. As was pointed out in the joint declaration of the ministerial meeting of the five Arctic coastal states held in Ilulissat, Greenland, this past May, these states, including Russia, are committed to the existing international legal framework that applies to the Arctic Ocean and to the orderly settlement of any possible overlapping claims.59 It is only in the Arctic areas where international law has failed that conflicts are escalating. Consequently, the United States must seek a way to bolster international law in order to provide stability in the region. To this end, U.S. Arctic policy must be guided by the following six steps.
The Western Gap agreement has clear implications for the Arctic, where the United States shares a potential extended continental shelf with both Russia and Canada. UNCLOS opponents suggest that questions regarding international legal title to the U.S. potential extended continental shelf in the Arctic will be resolved conclusively when the United States enters bilateral agreements with Russian and Canada respectively.156 As simple and therefore attractive as this position may be, it begs several questions.
Under what legal authority would the Arctic neighbors have the right to divide and claim for themselves an area lying, at least in theory, beyond their respective national jurisdictions? Even assuming a legitimate legal basis to claim their extended continental shelves and delimit them bilaterally, what basis would the states have for desiring to and concluding their agreements outside the UNCLOS framework, including ignoring Article 82 royalty payments? Finally, even if Russia and Canada— both UNCLOS member states—choose to comply with UNCLOS on their respective sides of delimited shelves, might they object to the United States not doing so on its side, and, if so, would they pursue their objections? And how might the outer limits of the U.S. extended continental shelf in the Arctic be determined given the geographic differences from the Western Gap situation where there were only two geographically opposite states with no third state or area interests involved?
The simple answer is that only by acceding to the convention can the United States obtain its full continental shelf rights in the Arctic.
Recent geopolitical developments in the Arctic region highlight yet another circumstance where both UNCLOS and U.S. national security interests are implicated, as thawing Arctic floes have brought the Arctic Ocean's untapped resource and navigation potential increasingly to the fore. States with Arctic Ocean borders-United States, Canada, Russia, Finland, Iceland, Norway, and Sweden-are, therefore, concerned with the full spectrum of national security implications-political, economic, and military-associated with increased Arctic Ocean maritime transit and resource related activity. Conflicting claims to the Arctic Ocean's waters and seabed have already commenced. A prime example is Russia's 2007 claim to the Lomonosov Ridge a 1,200 mile long undersea swath in the vicinity of the North Pole as part of its continental shelf.68 While the Lomonosov Ridge is currently considered beyond the jurisdictional reach of any country and, therefore, administered by the ISA69 "Note: Frozen Assets: Ownership of Arctic Mineral Rights Must be Resolved to Prevent the Really Cold War ." George Washington International Law Review. Vol. 41, No. 3 (2011): 651-680. [ More (5 quotes) ], confirmation of its claim to exclusive resource extraction rights.70 Indeed the trend toward utilizing the CLCS appears to be intensifying, and will likely play a central role in de-conflicting Arctic Ocean claims. One such indication is the 500% year to year increase in petitions submitted to the CLCS from 2008 to 2009. As in the East and South China Sea, it appears likely that UNCLOS and its regulatory entities will play acritical role in economic and national security "scrum" beginning to play out in the Arctic region.
Meanwhile, Russia’s actions and rhetoric in the Arctic leave no room to deduce anything but a firm and committed intent on the part of its leadership to secure its claims. There have been scant, if any, peaceful actions undertaken by the Putin and Medvedev administrations to back up their peace-seeking rhetoric. Calls for diplomatic resolution of territorial disputes in the Arctic and for working “within existing international agreements and mechanisms” have only been operationalized through agreements to cooperate on search and rescue efforts and on (competitive) scientific exploration and research for submission to the Commission on the Limits of the Continental Shelf (CLCS), a forum that has no binding authority to settle such disputes. All the while, however, Russia’s ambitious militarization of the Arctic has been clearly reinforced with explicit rhetoric proclaiming its intent to defend its national security interests. For Russia, the natural resources in the Arctic are a national security asset of strategic importance.
Until such a solution is found, the Arctic countries are likely to unilaterally grab as much territory as possible and exert sovereign control over opening sea-lanes wherever they can. In this legal no man's land, Arctic states are pursuing their narrowly defined national interests by laying down sonar nets and arming icebreakers to guard their claims. Russia has led the charge with its flag-planting antics this past summer. Moscow has been arguing that a submarine elevation called the Lomonosov Ridge is a natural extension of the Eurasian landmass and that therefore approximately half of the Arctic Ocean is its rightful inheritance. The UN commission that is reviewing the claim sent Russia back to gather additional geological proof, leading Artur Chilingarov, a celebrated Soviet-era explorer and now a close confidant of Russian President Vladimir Putin, to declare, "The Arctic is ours and we should manifest our presence" while leading a mission to the North Pole last summer.
Like the other Arctic nations, except the U.S., Russia is a signatory to UNLOS. The USSR became a signatory in 1982; UNCLOS was later ratified in 1997 by the Russian Federation.117 Russia has utilized the provisions of UNCLOS to advance sovereignty, especially along the Northern Sea trade route, which passes through Russia’s northern Exclusive Economic Zone (EEZ). Russia is using UNCLOS provisions in an attempt to exercise control over the Northern Sea route by requiring vessels to seek permits and submit their vessels to inspection due to the ice conditions. This is considered an overreach of authority by the U.S., which is protesting the plans.118 As a non-party to UNCLOS, the U.S. cannot utilize the established means of the treaty to protest.
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The Editorial board argues that another reason for the U.S. to ratify UNCLOS is that it would give it more ability to challenge Russia's military expansion into the Arctic.
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