Revision of U.S. ratification of UNCLOS would help resolve disputes with Russia in Arctic from Tue, 02/08/2022 - 14:57
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
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.
From the U.S. perspective, the crucial issue is not merely the minerals that it can claim, but the potential for a major shift in the relative mineral wealth of Russia vis-a-vis its neighbors. A growing dispute between Russia and Norway is perhaps the most important of these. In 2001, Russia submitted its definition of its continental-shelf borders. Russia's claim is widely considered a significant overreach, since it claimed a shelf extending almost to the North Pole and it made territorial claims that impinged on oil- and natural gas-rich Norwegian claims (claims that have long been widely, if informally, acknowledged as belonging to Norway) in the Barents Sea. Though Norway's claim, released in late 2006, is in some ways more realistic, it appears to have been drafted to meet Russia's aggressive claim in kind.
With Russia increasingly aggressive in its use of oil and natural gas as a lever against Europe, it will fall in part to UNCLOS (and possibly the CLCS) to make decisions that will affect the reserves and production potential of Norway and Russia.
As it stands now, the CLCS is highly unlikely to support one side over the other, and it will throw the decision over the extent of continental shelf ownership to the two countries to negotiate, a resolution that bodes ill for Norway. Treaty advocates say this would not necessarily be the case if the United States were involved in the organization.
National security-focused advocates in the United States say the country's nonparticipation in UNCLOS shuts out Washington from being able to meaningfully influence how UNCLOS resolves the disputed claims. Industry, from oil and natural gas producers to their major customers in the chemical and transportation industries, also wants the United States to have a seat at the table.
The general discourse on the Arctic has focused on the risks of military escalation. Though security is a relevant factor when discussing Arctic issues, the region is unlikely to witness military escalation. U.S. Special Representative for the Arctic, Admiral Robert J. Papp, Jr., recent remarks suggest that Russia is not militarizing the Arctic are insightful. Papp noted that the U.S. does not believe Russia is acting unreasonably as the melting Arctic is driving increased maritime traffic in Russia’s waterways.
The Arctic region has tremendous global potential, if not for its resources, but for the environmental and ecological impact of its changing landscape. The nature of the environment in the Arctic favors collaboration rather than competition. The rhetoric may at times appear aggressive in nature, however Arctic nations, including Russia, understand that in order to reap the benefits of the Arctic, cooperation will be crucial. In a global environment marked by instability, conflict and a rise in mistrust, the Arctic region might prove to be a region where trust can be rebuilt and cooperation re-established between global powers.
U.S. freedom of navigation interests in the Arctic would be bolstered by joining UNCLOS. Both Russia and Canada have maritime claims in the Arctic that are inconsistent with the rules contained in the Convention. Russia37 and Canada38 draw excessive straight baselines in the Arctic and restrict the right of transit passage in various international straits in the Arctic, including the Northeast Passage, the Northwest Passage and vari- ous straits located within Russia’s Northern Sea Route (NSR)—the Demitri, Laptev and Sannikov Straits. Russia’s straight baselines closing the NSR straits and Canada’s straight baselines around its Arctic Islands do not meet the legal criteria contained in Article 7 of the Convention.39 According to UNCLOS Article 5, the correct baseline for these areas is the low-water line. UNCLOS Article 38 also provides that the right of transit pas- sage through international straits cannot be suspended or impeded by the bordering States. Use of straight baselines by Russia and Canada to close these international straits is therefore inconsistent with the Convention. Furthermore, under UNCLOS Article 8(2), all nations enjoy at least the right of innocent passage in areas within newly drawn straight baselines. The United States has diplomatically protested and operationally challenged these excessive straight baseline claims under the U.S. Freedom of Navigation Program, citing the provisions of UNCLOS and customary international law.40 However, the U.S. legal position would be on better footing if the United States was a party to the Convention.
Players in the Arctic groups identified the need for building Arctic partnerships and focusing on a “whole of government” approach in order to build Arctic Domain Awareness (ADA), with an emphasis on the vastness of the maritime passages and respond to crises. Players in the Arctic groups asserted that the United States should take an active leadership role in Arctic policies, issues, and development. Players further asserted that UNCLOS ratification would facilitate establishing the U.S. as a leader in Arctic issues including ADA. Conversely, continued non- ratification of UNCLOS could result in Russia emerging as the dominant power in the region, potentially claiming sovereignty of half the Arctic basin, and assuming a leadership role concerning Arctic issues (Schlauder, 2007). Overall, the United States role in the Arctic could be marginalized if actions, policies, and investments fail to keep pace with economic development in the Arctic.
The geopolitics of the twenty-first century will be different from the days of empire and conflict of the nineteenth and twentieth. The increased accessibility of the Arctic, with its energy and mineral resources, new fisheries, shortened sea routes, and access to rivers flowing north to the Arctic, is pushing Russia to become a maritime state. As it progresses, Russia will no longer be susceptible to geographic isolation or encirclement. At the same time, these changes will require Russia to become more closely integrated into global commercial and financial networks, to welcome international business involvement, and to par- ticipate in international bodies that harmonize international shipping, safety, security, and environmental regulations.
These changes are already opening the way for a new geostrategy that has its roots in the geopolitical thinking of the twentieth century but addresses the changes that are turning the Arctic from an afterthought to a central front in the new geopolitical view of the world. In this new geostrategy, Russia assumes a role as one of the maritime powers of the “rimland,” and the Russian Arctic becomes a new geographical pivot among the great powers. Decades will pass before Russia can fully make the shift from Eurasian heartland to Arctic coastal state, but it is already integrating policies toward this end into the strategies of its national security council and federal ministries, and it shows every indication of expecting to seize its future seat among the major maritime states of the world.
Foreign Policy. In seeking to establish the Arctic as a “zone of peace and cooperation,” the Russian Arctic policy emphasizes mutually beneficial bilateral and multilateral cooperation among Russia and other Arctic states on the basis of in- ternational treaties and agreements to which Russia is a party. Underlying all Russian policies toward the Arctic is support for regional collaboration in the Arctic and commitment to UNCLOS and multilateral organizations and approaches, including the International Maritime Organization, the Arctic Council, and the five Arctic coastal states, who met in Ilulissat, Greenland, in 2008 to issue their declaration on management of the Arctic. The key foreign policy point in the Ilulissat Declaration—that the Arctic coastal states will resolve disputes peacefully in line with the law of the sea—is consistent with the Russian Arctic policy.22
As a maritime state with interests in sustaining freedom of navigation on a global stage and in maintaining safety and security in its offshore waters, Russia in the twenty-first century will increasingly share interests long held by the United States and other ocean powers. Russia’s interests in its Arctic will foster a maritime policy that embraces coastal resource management and freedom of international navigation, though likely with a greater emphasis on offshoresovereignty and less on distant-water power projection. Strategic security policy will be a continuation of past and current policy, the U.S.-Russian maritime boundary is already resolved de facto (pending official approval of the boundary treaty by the Russian Duma), and current and potential territorial disputes between Russia and U.S. allies Norway, Denmark, and Canada are likely to be resolved through peaceful means. The United States and Russia also have an agreement that maritime-boundary and navigation disputes will be resolved diplomatically rather than by resort to arms.32 The conflicts that do arise will be focused on matters of commercial navigation, boundary delimitation, fisheries management, energy development, environmental protection, and ocean science, all the subjects of international diplomacy and regulatory enforcement rather than warfare.
The opening of the Arctic in the twenty-first century will give Russia the oppor- tunity to develop and grow as a maritime power, first in the Arctic and eventually wherever its merchant fleet carries Russian goods and returns with foreign products. This transformation of the threatening “heartland” of Mackinder and Spykman into a member of the maritime powers will require extensive effort to bring the new maritime Russia into the collaborations and partnerships of other oceangoing states. Commitment to the rule of law, shared Arctic domain awareness, joint security and safety operations, and collaboration in developing policies for the future can maintain the Arctic as a region of peace even while the coastal states maintain naval and law enforcement capabilities in the region.
The best course is to address Russia’s evolving maritime role with an Arctic regional maritime partnership based on the model of the Global Maritime Partnership initiative, expanded to address civilian interests in climate, resources, science, and conservation. The American objective should be to work collab- oratively to resolve disputes over continental shelf and fishery claims, negotiate a regional high-seas fisheries management plan, develop a regional Arctic maritime transportation plan, and coordinate security and safety policies on the ocean and ice surface and in the air, in line with the U.S. Arctic Policy and the sea services’ “Cooperative Strategy for 21st Century Seapower."