by Ian Townsend-Gault
Why defining the interests of Arctic’s coastal and user states and avoiding conflict between them might be more straightforward than most people think.
There has been no shortage of prediction and speculation as to the changes global warming will bring to the Arctic. Stories and articles have appeared of the shrinking ice cap, the appearance of flora and fauna not previously found there, the distress of polar bears, and the like. While ecologists warn of possible trouble ahead, others claim to see advantages to climate change. Shipping routes like the Northwest Passage and the Northern Sea Route will be available for merchant shipping on a scale never possible before, with reduction in sailing times and shipping costs. There should be a longer season for oil and gas drilling, which will be able to take place further north than ever before. And there are those who eye the living resources of the Arctic Ocean with increased interest, particularly in those enormous areas beyond the 200 nautical mile national jurisdictions. Increased shipping, and fishing in international waters has the potential to bring countries which support such activities into conflict with the Arctic’s coastal States. The latter would naturally be concerned about the increased possibility for pollution from the former and overfishing or illegal fishing from the latter. These concerns will not necessarily be shared by any other State.
Arctic Coastal States
The international law of the sea, and particularly the rules relating to maritime resource jurisdiction, developed in a remarkably short period of time during the second half of the 20th century. One of the features of that development was the notion that “the land dominates the sea.” In other words, coastal States stood to benefit greatly, some markedly more than others, while landlocked States did not. We can speculate as to how it came to be that living and nonliving resources beyond the limits of the territorial sea (which was generally no more than three nautical miles until the 1970s) were either the property of all countries, or the property of none eventuallycoming under the exclusive jurisdiction of one country or another. The best explanation for this process probably lies with the fact that the first zone of jurisdiction extending beyond the territorial sea concerned the Continental shelf, and hence nonliving resources. The theory was that oil and gas, and other minerals, were unlikely to be exploited optimally unless the proximate coastal state exercised the necessary jurisdiction. Apart from anything else, the oil industry required clear legal title to engage in exploration and production without which it would have been impossible to raise the necessary billions required by way of investment.
The foundation of the doctrine of the Continental shelf as a rule of international law dates from 1945. It was consolidated over the following decade, a process which culminated in 1958 in the signing of the Convention on the Continental Shelf, one of the four Law the Sea treaties negotiated in Geneva at the United Nations First Conference on the Law of the Sea. Jurisdiction over living resources was to follow over the coming decades, with the gradual acceptance of an exclusive fisheries zone extending as far as 200 nautical miles, but not consolidated in Part V of the 1982 United Nations Convention on the Law of the Sea as the Exclusive Economic Zone (EEZ). The notion of exclusivity of control had taken root, and the new rules developed along these lines. This was despite the fact that fishing over the greater part of the world’s oceans had been a part of the human experience for millennia.
It was also true that accidents of political geography, or mere happenstance, dealt some coastal States a much better hand than others. Germany is the largest country in the European Union, measured in any way one wishes. Its offshore entitlement, however, is negligible. Portugal and Ireland, on the other hand, fare very much better. Equity in the matter of the apportionment resources played no role in the development of concepts such as the Continental shelf or the exclusive economic zone. There are occasions when equity requires that a state with a long coastline is allocated a larger area of maritime space than that appertaining to a smaller neighbour. This is especially true when a major state is required to enter into maritime boundary delimitation arrangements with a neighbour which happens to have islands lying just off the coast of the former. The legal definition of an “island” is simple: a naturally formed area of land, surrounded by water, and above water at high tide. This can include features such as Australia, or mere rocks, such as the British island of Rockall. Modern international law would deny the latter the right to a Continental shelf or exclusive economic zone because it is, literally, a rock which cannot sustain human habitation or an economic life of its own. This is a remarkably contentious area of the law, although it may be that state practice and the jurisprudence of international courts and tribunals are helping us clarify a boundary delimitation which is more or less “equitable”, as opposed to one which is manifestly not.
Arctic User States
This focus on the rights of littoral states has the potential to conflict with a very different notion – the rights of user states, countries whose ships traverse bodies of water over which they have no formal rights. But the international trading system depends on freedom of navigation, the absence of let or hindrance, and similar concepts. The littoral states of bodies of water such as the South China Sea can be identified clearly, but since more than 50% of the world’s oil tanker traffic uses these waters, countries that export hydrocarbons and countries that import the same resources clearly have an interest every bit as keen and important as those of the littorals. But what?
Matters are not helped by the fact that some countries – and in the China Sea context one thinks of the attitude of Beijing – preferred to view outstanding jurisdictional issues with their neighbours as being essentially bilateral. They would also repudiate the notion of the “internationalisation” of these matters. On the other hand, could it not be said that the interests of the international community at large are fully engaged with approaches to and possible resolution of jurisdictional issues in important bodies of water such as this?
It is inevitable that these arguments, approaches, and issues will arise with respect to the Arctic Ocean. Great play has been made of the possibilities of using the Northwest Passage and the Northern Sea Route as viable routes for merchant shipping, cutting days off certain journeys and reducing costs accordingly. This may alarm the Arctic littorals, concerned as they must be about the obviously increased potential for pollution resulting from Marine casualties. And there is another aspect to the conundrum. The 1982 Convention allows coastal States to claim Continental shelf rights beyond 200 nautical miles if the natural promulgation of the “Continental margin” extends beyond this limit, and there is no collision with zones generated by another landmass. The Convention lays down rules for how this natural prolongation is to be measured, and provides for a procedure whereby states party to the agreement wishing to make such claims must submit evidence of entitlement to the Commission on the Limits of the Continental Shelf (CLCS), a body established by the same Convention. The Russian Federation was the first to make such a submission, and the Commission asked for clarifications and elaborations which will soon be before it. The other Arctic littoral States who are parties to the Convention – Canada, Denmark/Greenland and Norway, are expected to follow suit. It remains to be seen whether the Obama administration’s enthusiasm for the United States becoming a party to the agreement will bear fruit, but let us assume for the purposes of argument that it will.
This may be the place to make a vital point concerning the application of the 1982 Convention to the Arctic Ocean. The treaty was clearly meant to apply to all the world’s maritime spaces. If there had been any intention to exclude a given body of water, the Convention would have said so, but it does not. The view has been expressed that LOSC (or “UNCLOS”) might not be “a good fit” in the Arctic, but one looks in vain for any rational argument as to why this might be so.
What this means is that it is, at present, very difficult to be definite about the extent of Continental shelf entitlements in the Arctic Ocean. But we can be much more certain about the limits of the exclusive economic zone, at least insofar as this applies to living resources. An enormous part of his body of water will be beyond national jurisdiction, and therefore open to fishers from all countries. Their own laws might restrict their activities, or they might not. It is known that a number of Asian countries in particular eye the living resource potential of the Arctic ocean with the greatest interest. Indeed, some of them view the potential for nonliving resource development with equal enthusiasm.
Is Conflict Inevitable?
Does this mean, therefore, that we are faced with an inevitable conflict between the interests of littoral states and the interests of user states? Possibly, unless the members of the international community can come to some understanding of the need to balance these possibly competing views. After all, littoral states are in the front line in the event of a Marine pollution casualty, any action which compromises the stocks of living resources, and the like. In this context it is useful to note that while most commentators focus on oil and gas and fisheries, ocean biologists continue to remind us that we have a very imperfect understanding of the potential of the marine biosphere and its possible contribution to the well-being of humanity.
How can these matters be approached? One avenue would be to take our cue from the foundations not only of the law of the sea, the international law as a whole. This is posited on notions of equity and fairness, and ince the work of bodies such as the Brundtland Commission, on concepts such as large Marine ecosystem management, respect for the environment and its resources, sustainable development, intergenerational equity, and the like. In other words, the clue for moving forward might well lie in these concepts which have underpinned international law for generations. We do not need to reinvent this particular wheel.
About the author: Ian Townsend-Gault is Professor in the Faculty of Law, University of British Columbia, Vancouver, Canada. Email: firstname.lastname@example.org.
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