Whose Arctic is it anyway?

2007 will be remembered as the year of climate change and high oil prices. Starting with the first of the four reports of the Inter-Governmental Panel on Climate Change (IPCC), the debate culminated in the award of the Nobel Peace Prize to Al Gore and the IPCC. Even the ill-fated Bali conference which failed to provide concrete direction to the future of international environmental policy reinforced the need for swift global action to curb carbon emissions. On the other hand, crude oil prices – a whisker away from the $100 a barrel mark – continue to fuel anxieties over the future of the energy economy. Though financial speculation and increasing demands from India and China are being touted as the main reasons that are driving the prices upwards, the spike has made everyone recognise that the end of ‘easy oil’ is imminent. In a bid to overcome the crisis, analysts and policy makers are scrambling for alternatives where there seems to be none. Unconventional sources such as oil sands, nuclear energy and even the much touted ethanol-blended petroleum fail environmental safety tests and are unable to provide a viable alternative.

Climate change and high energy prices are effecting a degree of geopolitical realignment. New players such as oil exporting African countries are coming to the fore while old ones like Russia are pushing to regain their lost glory. Other existing players are seeking to increase their international profile and are adopting assertive policies – Iran and Venezuela being cases in point. Among the many geopolitical reverberations that global warming and energy prices have caused, rival claims over the continental shelf in the Arctic represent a potentially dangerous turn in terms of a new scramble for the last vestiges of the world’s unclaimed resources.

As the frigid waters of the Arctic melt, its fabled riches in the form of oil, gas, and minerals are enticing countries that are located along its fringes – Canada, Denmark (on behalf of Greenland), Norway, Russia, and the United States. According to the US Geological Survey, approximately 25 per cent of the world’s undiscovered oil and gas lies beneath the Arctic waters in addition to mineral and other biological reserves. As the permanent ice cover recedes because of global warming, these riches would become accessible in the next 10 years. Further, the sky-rocketing prices of hydrocarbons and the impending fossil fuel crisis is also making oil exploration in difficult terrains such as the Arctic appear economically viable. According to some estimates, if global warming continues at the present rate, in about twenty years we would have an ice-free Arctic during summers. On the other hand, latest reports from NASA point out that the North West passage, a small waterway between the Canadian northern islands which connects the Atlantic and the Pacific Oceans, has almost become ice free. The passage, if open to shipping, can cut down significant amount of shipping time, which is otherwise wasted in the detour taken from Africa. If Canada were to assume control of the passage, it would have its hands on the pulse of future maritime commerce.

The five Arctic countries are rushing to secure their rights to the largest share in the pie. A Russian expedition, in a flagrant display of jingoism, planted the national flag under the North Pole on July 27, 2007. Russia claims that the 1240 mile underwater Lomonosov Ridge in the Arctic is connected to the East Siberian Region and therefore is a part of its continental shelf. On August 22, the Deputy Director of the Marine Geology Research Institute stated that preliminary tests of the sea bed soil samples taken by the mini-submarines substantiate the Russian claim.

Not far behind, Canada has not only claimed that the ridge is connected to the Ellesmere islands, but has also in a dramatic assertion of sovereignty restated its long held claim that the North West Passage is inland waters. Canada first claimed the passage in the early 1970s. Prime Minister Stephen Harper declared that the “first principle of the Arctic is to use it or lose it.” To consolidate its claim Canada is beefing up its military presence in the far north. Ottawa has announced its intention to build two new military bases in the Arctic and invest $3 billon to purchase six to eight patrol ships that would enable it to assert its rights on the passage and indirectly on other natural resources. Though Canada does not oppose international shipping in the region, it wants shipping in the passage to follow Canadian regulation and laws, instead of international law.

The Russian and Canadian claims are being strongly contested by the others. The Danes argue that the Lomonosov ridge is connected to their territory and have recently sent missions to map the Arctic sea bed. Their latest statements declare that there is convincing evidence that the ridge is connected to Greenland. Americans too sent a similar mission in mid-August even though they have not ratified the 1982 Law of the Sea Convention (LOSC) and therefore cannot stake a claim. They also assert that the North West Passage is international waters and have been at odds with the Canadians for many decades, though the problem has come to a head only now because the passage has become navigable.

Due to the legal complexities of the issue, which will play out in the coming years, it is too early to say how the crisis would unfold. It, however, lays bare the staggering consequences of the confluence of high oil prices and climate change for the Arctic environment, international political stability, resource sharing in the oceans and international law.

The ownership of straits and natural resources of the oceans are among the oldest and bitterly contested disputes between maritime states. But it is also one of the few areas that boasts of an international legal regime. International Law of the Seas as codified in the 1982 Law of the Sea Convention defines an elaborate procedure for adjudicating continental shelf submissions. It defines a continental shelf as the seabed and the subsoil of the submarine areas that extends beyond the State’s territorial sea. According to the Convention, all maritime states have a continental shelf extending 200 nautical miles into the sea from the baseline. For all claims beyond 200 nautical miles, states have to present scientific and technical proof to the Commission on the Limits of the Continental Shelf (CLCS). The CLCS then makes recommendations regarding the delimitation of the continental shelf, all of which are binding on the claimant(s). In cases where the continental shelf might overlap between two or more states, an equitable agreement has to be effected on the basis of Article 38 of the Statute of the International Court of Justice. States have to submit claims to the CLCS within 10 years of their ratification of the LOSC.

The legal regime dealing with international straits is somewhat less clear. Part III of the LOSC describes the legal status of Straits as well as the rights and duties of coastal states and those of ships. However, the Convention does not state what constitutes a ‘Strait’ because of which many countries clash over the issue. A Strait would otherwise be the internal waters of the adjoining country were it not an ‘international strait’. International law takes over only when a waterway is accepted as an international strait. Ships passing through international straits have ‘right to transit passage’ and need not seek permission from the state(s) bordering the strait and would not be subject to the legislative provisions of the bordering states so long as they use the straits for peaceful transit. Thus, if Canada is not able to ensure that the North West passage is accepted as Canadian internal waters, it will not be able to regulate shipping in the area.

Russia, one of the earliest signatories to the Convention, presented a claim to the Lomonosov ridge way back in 2001. The CLCS rejected it on grounds of insufficient evidence. At that time the Russian claim was neither backed by posturing like the recent flag planting ritual nor did it invite frenzied responses from other Arctic countries. Recent nationalistic statements from Russia and even Canada are also surprising because the entire process of deciding the limits of the continental shelf is a long drawn out one. Even if the Russian argument that it will be able to submit a claim by the spring of 2008 were to be accepted, the CLCS would take some time to adjudicate the claim. Though Norway cannot present a counter claim to the CLCS since its 10 year time limit got over last year, Canada (by 2013) and Denmark (by 2014) certainly can.

The manner in which Russia and Canada staked their claims has political overtones – international and domestic – rather than merely legal and technical ones. Russia’s aggressive posturing, especially the utterly unnecessary flag-planting ceremony, was meant to convey a message to the West that it is very much a player in the international arena. A resurgent Russia, which is also the main exporter of natural gas to Europe, is eager to recapture its lost glory as a global power through its hydrocarbon might, and it is rushing to increase its reserves. With gas attaining an important profile in the global energy mix due to its environmental benefits and flexibility of usage, any increase to Russian gas reserves, which already are the largest in the world, will become a cause of alarm and anxiety especially for Europe and the United States.

The reassertion of the Canadian claim to the North West passage is motivated by domestic political considerations. Ensuring Canadian sovereignty over the North West passage was one of the electoral promises of the Harper government. Now that domestic support for the government is dwindling and criticism of its policies is increasing, Harper is raking up the issue of the North West Passage to whip up support by appearing to stand up against the Bush administration. Both President Bush and Prime Minister Harper know that asserting any territorial claim in the North West passage would require Canada to patrol the seas – a difficult and expensive proposition given the harsh and difficult climate. As Canadian opposition parties rightly point out, the $3 billion proposed to be spent on patrol ships is too small to inspire any confidence that the country will be able to back up its claim. Also, the ships will not be procured before 2013.

Immediate context, purposes and implications apart, the issue is a complicated jumble of legal, geopolitical and environmental issues. The unprecedented nature of the problem – resource claims in a melting Arctic – elicits few definite pointers as to how the crisis would be resolved both legally and politically. Russian claims are overlapping with those of Canada and Denmark and will definitely by contested and blocked by the latter. Many experts on international law such as Dr. Charlotte Breide point out that countries will have to settle the matter by negotiating international maritime boundaries for exploration of the resources since the CLCS will not adjudicate in such cases. Or there might also be an agreement for joint exploration. Both these scenarios would depend on the desire for compromise and co-operation between the various parties, and especially between Russia and the United States. For instance, the issue of the North West passage will most definitely result in an agreement between Canada and United States for joint patrolling, given that Ottawa does not posses the resources to press its claim or to patrol the seas single-handedly.

A more far reaching question is whether such claims should be entertained at all given the fragile nature of the Arctic ecosystem which will be further damaged by exploration and transit of ships. It may appear that the mirage of joint exploitation of Arctic resources is the ideal solution to maintain international political stability. But that is what it is – ‘a mirage’. The concept is inherently flawed as it skirts away from the crucial issue of developing general principles for protecting resource rich, yet fragile, ecosystems.

At present, international law does not have specific provisions to protect the Arctic environment. An effective solution to the Arctic problem should be along the lines of the Antarctic treaty (1961), which bans the exploitation of any and all natural resources in the region beyond the present territorial limits. This would maintain the geopolitical status quo among the Arctic countries, since no country would be hoarding hydrocarbon wealth.

The fact that the Arctic impasse has become a cause célèbre at a time when climate change is receiving so much attention should become an impetus for the United Nations and the CLCS to convene a special session of international legal experts. The prime agenda of the session should be to align international law with the changed political and environmental constellation of the international system.

If one were to take a positive view, this incipient conflict is actually a blessing in disguise. It gives international civil society an opportunity to press for the creation of a regime that ensures the protection of fragile eco-systems such as that of the Arctic. Such a regime would expand existing international law and clearly define principles of sustainable resource sharing in oceans for all maritime states. Lastly, by institutionalising environmental priorities over geopolitical imperatives, it would prevent the oceans from becoming another source of ‘easy oil’ and thus propel the international economy to move away from its dependence on fossil fuels.

As utopian as it may seem this is the only way forward. That is, if the destination is sustainable and equitable development