Opinio Juris

There may be a crisis in the Arctic, but this isn't it

The source for the article you refer to (originally the Telegraph in the UK) employs a bit of hype to give the appearance of impending conflict. The Russian fleet of icebreakers is not a response to melting Arctic ice or claims to the seabed. It has been in place for years because of the importance of the northern ports along the Northern Sea Route that connect the Pacific to the Atlantic. The build-up of Canadian patrol boats might be attributed more to the impending opening of the North West Passage and the need to impress upon potential users, the United States among them, that their position that the NW Passage is internal waters and a recognition that whatever status is eventually accorded to the Passage, Canada will bear responsibility for enforcing navigation, fishing and environmental protection law and regulations within its northern territories.

In fact, the Law of the Sea Convention is doing just what it was intended to do. It provides an avenue by which coastal states may extend authority over offshore seabed resources, it provides defined regions of national authority over fish stocks and, through the 1995 High Seas and Straddling Stocks agreement, it establishes a process for conservation of resources beyond the exclusive economic zone.

As to the potential for conflict, Russia accepted the rejection of its first proposal for its extended shelf and returned to gather more geologic information to support its claim or to modify the claim accordingly. The Russian claim respected the US-Russia border agreement even though the Russian Duma has yet to ratify it. Disputes between Canada and Denmark are over relatively small areas and while some posturing is necessary to reinforce national claims, there is no danger of serious conflict. Norway's arctic claim is already in place and while they have boundary disputes with Russia that are expressed in impounding of fishing vessels (reminiscent of Chile's impoundment of US tuna boats for fishing in the 200 mile waters they then claimed as territorial seas in the 1960s) the matter is being addressed diplomatically.

Since deep seabed mining is not an issue that has been raised in the Arctic, the policy of the United States, first established by President Reagan in 1983 and endorsed by all presidents since then, is to apply the UN Convention on the Law of the Sea even though we have yet to ratify it. Beyond that Convention, the US has ratified the 1995 Agreement on High Seas and Straddling Stocks and recognizes the role of the International maritime Organization in setting safety and operational standards and in developing conventions and protocols that apply to the use of the seas, including the Arctic.

With the Arctic states all accepting the LOS Convention, the High Seas and Straddling Stocks Agreement and the role of the IMO, I see little reason to worry about major conflict over resources or ocean use. The only reason to highlight the concern of major conflict (beyond continuation of enforcement of boundary claims) is to sell newspapers.

Of course, this leaves the US without a formal mechanism to require all other states to recognize the outer limit of its own extended continental shelf, but this is more a problem of investment climate than cause for armed conflict. Without international recognition of the claim to a shelf beyond 200 n.m., investors and lenders face questionable claims of exclusive access and title. According to US oil and gas firms, a unilateral claim will not be sufficient to provide the investment climate to allow the firms that are technically capable of working in that area to spend the billions of dollars necessary to develop the resources.

Finally, it is also worth pointing out that while estimates suggest that up to 25% of wold oil and gas resources may be located in the Arctic, those estimates have not suggested that the resources are located beyond the limits of the geologic shelf, slope and rise (defined collectively in the Convention as the Continental Shelf).

All four of the Arctic states that are party to the LOS Convention endorse it as the governing international law of the region and the basis by which national authority extends seaward. Even as a non-party, the US recognizes the same. There may well be demonstrations of national claims, even so far as bumpings of ships or impoundment of commercial vessels in defense of boundary claims, but worries of greater conflict should be recognized as methods to sell newspapers, inflame nationalism or justify research grants and not as some vague 'crisis'.

If I were to identify an Arctic crisis in the making, it would not be over activities at sea. It would be over the effects of development within national territory with the inevitable increase in runoff and pollution of rivers and streams that empty into the Arctic. As climate change opens new lands for agriculture, and as industries develop near the rivers in the Arctic watershed, the environmental load feeding into the Arctic will grow, and if it isn't addressed before agriculture and industry develop, it will be nearly impossible to avoid.