Bloomberg BNA — Russia, Denmark and Canada all are trying to prove that their land masses extend to the North Pole, handing the international commission that gives its expert recommendations on such matters its most highly contested issue to date and highlighting the central role the UN Convention on the Law of the Sea will have in determining the future of the rapidly changing region.
The polar region's global status has risen as it has shed its ice cover at a rate of 46,100 square kilometers per year since 1981, with summer sea ice loss accelerating over the past decade in terms of ice extent and thickness. Winter ice extent is also at historically low levels, with 2014 marking the fourth-lowest February ice extent in the satellite record, 910,000 kilometers below the 1981 to 2010 average, according to the U.S. National Snow and Ice Data Center.
Completely ice-free summers could come by mid-century by some estimates. Despite the risks of open water at the pole dramatically accelerating warming by absorbing rather than reflecting heat, politicians and business officials frequently cite the melting of sea ice as one of the opportunities offered by human-caused climate change, as offshore resources become accessible and new shipping lanes open.
In August 2007, the summer of the lowest ice extent in the Arctic Ocean recorded until that time, a Russian submarine expedition planted a titanium Russian flag at the sea bed of the North Pole. The incident set off speculation about a rush to resources in the remote region and signaled that jurisdiction over the top of the world held great political significance.
“The event caused an expectedly nervous reaction in the West, because we not only demonstrated the flag, we demonstrated our actual abilities to ensure the widest presence in the Arctic,” Russian Deputy Prime Minister Dmitry Rogozin wrote March 14 in an editorial in the state newspaper Rossiskaya Gazeta. He indicated that Russia is now ready to make its next moves in the Arctic. “The time to boost those abilities has come.”
Overlapping Claims, U.S. Interest
As Russia, Denmark and Canada vie to stake their claims, a complicating factor is that a fourth country, the United States, has conducted research on how far the continental shelf extends from Alaska toward the North Pole and could potentially stake its own claim. However, the U.S. cannot submit any of its evidence because it is not a party to the UN Convention on the Law of the Sea (UNCLOS).
Norway, a fifth country that could conceivably have a territorial claim to the North Pole, has said that it will not pursue any claim under UNCLOS.
Russian officials are making repeated statements about the government's intent to claim jurisdiction over the North Pole through a coming submission of evidence to the Commission on the Limits of the Continental Shelf under UNCLOS. The submission will be a continuation of one made to the commission in 2001, which the panel determined insufficient. Russia was directed to resubmit its evidence “within a reasonable time.”
Canada and Denmark likely won't be far behind, claiming in recent submissions to the commission that they each will soon submit evidence that their continental shelves extend to the North Pole.
Canada made a partial submission to the commission on Dec. 9, 2013, on delineating its outer continental shelf in the Atlantic Ocean. It did not include data about the North Pole, but specifically reserved Canada's right to make a submission of such evidence in the future.
“Work to determine the full extent of our continental shelf in the Arctic continues and could include obtaining further data around the North Pole,” the Foreign Affairs Ministry said in a Dec. 9, 2013, statement.
Denmark likewise made a partial submission Nov. 26, 2013, on the limits of the continental shelf beyond 200 nautical miles in the North-Eastern Continental Shelf of Greenland, which created an opening for later submission of evidence regarding the North Pole.
“Collection and analysis of scientific and technical data continues in the remaining area north of Greenland for which a submission is contemplated,” the government of the Kingdom of Denmark said in its partial submission.
Deadlines for Submissions Relaxed
A country has 10 years from the entry into force of its ratification of the convention to submit its evidence for continental shelf jurisdiction beyond 200 nautical miles, but the deadlines have been relaxed under two decisions at the meeting of state parties of the Law of the Sea Convention.
Now “it's just enough to indicate to the Commission that there will be a submission” and there is no violation if submissions come late, Øystein Jensen, senior research fellow and expert on the International Law of the Sea at the Norwegian Fridtjof Nansen Institute, told Bloomberg BNA in an interview.
The review of the overlapping submissions on the North Pole will be the most high-profile issue ever before the 21-member Commission on the Limits of the Continental Shelf. The default exclusive economic zone for every coastal state under international law is 200 nautical miles from the coast. States must document the extension of their continental shelves beyond the 200 nautical miles and submit the evidence to the Commission for its recommendation.
“The Commission has dealt with such issues before, but not issues that are so … much talked about, so it is a bit difficult, I think, for the Commission and for the coastal states, because actually this issue will be decisive in the Arctic Ocean,” Jensen said. “It's a big question internationally; it's an important region; it's prestigious. Whether they succeed in obtaining all of these areas depends on a legal interpretation.”
The process for determining the location of the outer limits of a country's continental shelf under Article 76 of the Law of the Sea framework begins by determining whether underwater elevations, or sea floor highs, constitute the so-called natural prolongation of the territory of the coastal state.
If the answer is yes, the next step is to determine whether the sea floor highs are ridges or elevations, a crucial distinction in the convention. If the highs are determined to be ridges, they stop at 350 nautical miles, which is before the North Pole for every country. If they are elevations, they may extend farther than that, with no legal limit on how far they can go.
Oil and Natural Gas?
A finding by the commission that a country's continental shelf extends to the North Pole is limited to granting that country exclusive jurisdiction to develop any resources in the sea bed.
The Arctic Ocean is estimated to hold up to 20 percent of the world's undiscovered and recoverable oil and natural gas, including an estimated 90 billion barrels of oil and 1,669 trillion cubic feet of natural gas liquids, most of which lies beneath less than 500 meters of water, according to the widely cited U.S. Geological Survey review of 2008. The Russian Ministry of Natural Resources and Environment estimates that the Russian Arctic continental shelf contains 76 billion tons of oil equivalent.
However, these estimates reflect areas that for the most part fall within the 200 nautical mile exclusive economic zones of the Arctic coastal states. The deep oceanic basin at the North Pole has either not been quantifiably assessed or found to have low petroleum potential.
There is very little expectation that the sea bed beyond 200 nautical miles in the Arctic Ocean contains significant resources, such as oil, gas and minerals, according to Erik Molenaar, senior research associate at the Netherlands Institute for the Law of the Sea and a professor at the University of Tromso.
In addition, any exploration in the deep, cold, remote area is likely to remain prohibitively expensive for development for the foreseeable future.
“The waters are very deep, and there's probably no oil in it,” Molenaar told Bloomberg BNA in an interview.
The likelihood that the sea bed at the North Pole contains no significant resources, particularly the types of large deposits required to make exploration in the Far North economically feasible, has many observers scratching their heads about the importance the states seem to be placing on obtaining economic jurisdiction over it.
‘The National Psyche'
“If you take the legal dimension, you will see that having continental shelf jurisdiction is not about sovereignty or anything like that,” Jensen said. “The sea bed of the North Pole will never be Danish or Canadian or Russian or whatever; it will not become part of any state's exclusive control and usage. It will become part of its exclusive jurisdiction, but only in terms of oil and gas. So there is nothing unique about the North Pole in this perspective. It's just a part of the sea bed, so it's a bit difficult to see what all of the fuss is about.”
The importance of the North Pole is likely pure politics, after some states have made declarations about owning the North Pole, according to Molenaar. “It's really part of the national psyche in a sense,” he said. “It would be seen as a defeat if they have to acknowledge that it is in fact beyond their outer continental shelf. It would be seen as giving up sovereignty. If you have to concede that your claim is not consistent with international law, then this is seen as a loss.”
There are indications that jurisdiction over the North Pole is indeed important to some Arctic states.
For example, the Russian government March 15 received the official document from the commission declaring Russian economic jurisdiction over about 50,000 square kilometers in the Sea of Okhotsk in the western Pacific Ocean that lie outside its 200 nautical mile limit.
Even though research shows the Sea of Okhotsk sea bed is likely rich in natural resources, the decision represents only “the first step” in Russia's efforts to attain greater economic jurisdiction in the Arctic, Minister of Natural Resources and Environment Sergei Donskoy said.
“We believe the positive decision on the Sea of Okhotsk is very important, especially in the context of the future consideration of the Russian proposal on the limits of the Arctic continental shelf,” Donskoy said.
Questions of Rule of Law
Due to the significance placed on obtaining jurisdiction over the North Pole, and given recent violations of the norms of the Law of the Sea Convention, some experts see risks of noncompliance with any recommendations from the commission that would negate a country's submission.
One significant recent violation is Russia's refusal to participate in the dispute-resolution proceeding called by the Netherlands over Russia's arrest of environmental activists who disrupted the activities of a Gazprom drilling platform in the Pechora Sea and seizure of the Dutch-flagged ship Arctic Sunrise last year.
“That's a very clear disrespect for international law. You are a party to the Law of the Sea Convention, and thereby you are bound to the dispute-settlement procedure,” Molenaar said.
Another similar example is China's refusal to participate in a dispute-resolution procedure requested by the Philippines over an area in the South China Sea outside China's exclusive economic zone that China claims for itself.
Such disregard for an international treaty can have broad impacts on various multilateral bodies and negotiation processes and bring about wider distrust and noncompliance.
“The risk is disrespect for agreed multilateral procedures. There is a risk in the background that Russia or even Canada will not act in accordance with the recommendations of the [commission], and this fear I think is more justified because of this nonappearance in the Arctic Sunrise case, and maybe even the recent developments in Ukraine” where Russia is viewed as violating the borders of Ukraine's sovereign territory.
The U.S. Factor
The high level of engagement of Russia, Canada and Denmark in the Law of the Sea process at a critical time for the Arctic region contrasts sharply with the complete lack of participation by the United States, since it is a non-party to the treaty.
“When we talk about any kind of jurisdiction, any kind of boundaries, any kind of governance structure, we are talking from a position of weakness” as the only Arctic state that is not a party to UNCLOS, said retired U.S. Navy Rear Adm. David Titley, director of the Center for Solutions to Weather and Climate Risk at the Penn State Department of Meteorology. “We undercut our authority,” he told Bloomberg BNA in an interview.
The example of China and Russia's flouting of the convention's norms also presents the possibility that the treaty could be renegotiated to become more favorable to those countries' interests. UNCLOS as currently written is extremely favorable to U.S. interests, codifying the rights of freedom of navigation and passage that are important to maintaining its global power status, according to Titley.
“The real strategic threat for us not being a [party to UNCLOS] is if anybody at some point wants to change the rules of the game … we're not going to have a seat at that table,” Titley said. UNCLOS “basically codifies up a world in which the U.S. is kind of the number one dog. And so now by not ratifying this, as the world changes, and maybe if that situation changes, we're not even going to be in the room when—if this ever gets looked at again. … It's frankly pretty hard to see that another [international legal] regime would be as friendly to U.S. interests as is UNCLOS. That's a real danger.”
Another key risk connected with the United States not being a party to the treaty is that the treaty itself is weakened by lack of U.S. participation, because it is important as a big coastal state and a major economy, according to Jensen.
Questions of Legitimacy
At the same time, the United States is not able to make its own submission regarding the outer limits of its continental shelf and does not have representatives involved in the process of making recommendations.
“To the U.S. itself and to the international community, it would be a benefit if the U.S. ratified,” Jensen said.
A senior State Department official told BBNA April 3 that joining the treaty remains a “high priority” for the U.S.
The Arctic is “one of the chief reasons why we need to join,” the official said. The U.S. has been actively exploring the Arctic Ocean north of Alaska to determine the outer limits of its continental shelf, but the U.S. has not explored as far north as the North Pole.
“We are entitled to this continental shelf whether we are a party to the convention or not,” the State Department official said, but “what we are not entitled to is secure recognition” of the U.S. claim by other countries.
Joining the convention has support from both parties, the U.S. military and relevant industry groups. However, the measure has repeatedly been passed over in the U.S. Senate and is not expected to be taken up in the near future. “Over time, support will continue to grow for the convention and we will join,” the State Department official said.
Another problematic aspect with UNCLOS is questions surrounding the legitimacy of the commission itself, due to the closed nature of the process for reviewing country submissions.
“We don't have access to the submissions, we cannot see them” beyond a general summary, Jensen said. The process “is basically closed from day one. It's basically an issue between an individual coastal state and the Commission, and that is a bit unfortunate because placing the outer limits, indeed, also is a question relevant to other states.”
The commission has taken steps to improve its transparency by creating additional procedures that it has vowed to follow. However, the additional procedures are not enforceable by states, according to Jensen.
Timeline for Decisions
In the case of the North Pole, where the area is controversial and contested, it will take quite a long time to for the commission to make a determination on coastal state jurisdiction.
“The commission has a quite a big backlog to deal with, meaning that these Arctic submissions will be far down the line for processing,” Jensen said.
The timing also depends on the level of funding states accord to the process.
“The current projection [for replying to submissions] is 2041, but they have to make further investments if they want to speed up the process,” Molenaar said. If parties double current funding levels and the coastal states submit their data this year, the decision could come by 2027, according to recent research.
Norway could possibly have a claim, but the country already said it will not pursue any claim to the North Pole under UNCLOS. That leaves the United States, which has conducted research on how far the continental shelf extends from Alaska toward the North Pole. However, the U.S. cannot submit any of its evidence because it is not a party to the treaty.
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