The Law of the Sea and the Arctic: Navigating Emerging Territorial Claims

Long shrouded in isolation, the Arctic region is rapidly emerging as a focal point of geopolitical and legal contention. Climate change is melting sea ice, creating new opportunities for resource extraction and shipping routes. Among the resources affected, navigable waters like the Northwest Passage and the Northern Sea Route are becoming increasingly viable for commercial trade. Projections suggest navigable days for the Northern Sea Route could increase from 20–30 days in 2004 to 90–100 days by 2080, with modern icebreaker technology potentially extending this to 150 days annually. Similar changes are expected for the Canadian Arctic Archipelago (CAA). This leads to disputes over the passages.

The melting ice has also revealed untapped reserves of hydrocarbons and minerals, intensifying the race for resource exploitation.

This article examines the emerging territorial claims in the Arctic through the lens of the United Nations Convention on the Law of the Sea (UNCLOS) and related international frameworks.

The Legal Framework: UNCLOS and Arctic Governance

UNCLOS, adopted in 1982 and entering into force in 1994, establishes a legal framework for all maritime activities. It delineates the rights and responsibilities of states in their use of the world's oceans, promoting peaceful navigation, equitable resource sharing, and environmental stewardship.

Under UNCLOS, coastal states have sovereignty over their internal waters, territorial sea (up to 12 nautical miles), and a contiguous zone (up to 24 nautical miles). Beyond these zones, the Exclusive Economic Zone (EEZ) extends up to 200 nautical miles, where states have exclusive rights to exploit natural resources. Furthermore, states can claim an extended continental shelf beyond the EEZ if they can provide scientific evidence that their shelf extends further. This provision has significant implications for Arctic states, where continental shelves may extend hundreds of miles due to the unique underwater geography.

A unique provision under UNCLOS, Article 234, often referred to as the "Canadian clause," grants coastal states special rights to regulate navigation in ice-covered waters within their EEZ to prevent pollution and protect the fragile Arctic environment. This article has been invoked by Canada and Russia to justify stricter controls over navigation routes through their respective Arctic waters, further complicating international relations.

UNCLOS provides mechanisms for resolving disputes through peaceful means, including negotiation, arbitration, and adjudication by bodies like the International Tribunal for the Law of the Sea (ITLOS). In the Arctic, disputes over maritime boundaries and resource claims are expected to be resolved within this legal framework, though some issues remain contentious due to differing interpretations of the convention.

Emerging Territorial Claims in the Arctic

The Arctic consists of land, internal waters, territorial seas, exclusive economic zones (EEZs) and international waters above the Arctic Circle. All land, internal waters, territorial seas and EEZs in the Arctic are under the jurisdiction of one of the eight Arctic coastal states: Canada, Denmark (via Greenland), Finland, Iceland, Norway, Russia, Sweden and the United States.

Under UNCLOS, states have ten years from ratification to submit claims to an extended continental shelf. Russia, Norway, Denmark, and Canada have all made claims, each seeking to extend their control over vast areas of the Arctic seabed. These claims are evaluated by the Commission on the Limits of the Continental Shelf (CLCS), which assesses the scientific data provided to support each submission. The overlapping nature of these claims has led to diplomatic negotiations and, in some cases, tensions, as states vie for control over potentially resource-rich areas.

One of the most significant disputes in the Arctic involves the Lomonosov Ridge, a submerged feature that stretches across the Arctic Ocean. Russia and Denmark both claim the ridge as an extension of their continental shelves. Russia’s 2007 expedition, which planted a flag on the seabed near the North Pole, was a symbolic assertion of this claim. Denmark has similarly presented scientific evidence to the CLCS to support its claim. The overlapping claims have led to heightened tensions between the two nations, with the CLCS tasked with evaluating the scientific validity of each submission.

Another major dispute is over the Northwest Passage. Canada asserts that the Northwest Passage, a sea route connecting the Atlantic and Pacific Oceans through the Canadian Arctic Archipelago, constitutes internal waters under its full sovereignty. This claim is based on historical usage and control over the region. However, the United States and other nations argue that the passage should be classified as an international strait, allowing for the right of innocent passage under UNCLOS. The disagreement centers on the legal status of the waterway and the implications for international shipping and sovereignty.

Similar to the Northwest Passage, the Northern Sea Route along Russia’s Arctic coast is claimed by Russia as internal waters, with strict regulations imposed on foreign vessels. This claim is contested by other maritime nations, which view the route as an international passage. The legal dispute involves the extent to which Russia can enforce its regulations on foreign ships and the interpretation of UNCLOS provisions regarding ice-covered areas and the rights of coastal states.

Until 2022, Hans Island, located in the Nares Strait between Greenland (Denmark) and Canada, was the only land dispute in the Arctic. The island’s strategic location led to a longstanding disagreement between the two nations. The dispute was resolved through a bilateral agreement, splitting the island equally between Denmark and Canada, demonstrating the potential for peaceful resolution of territorial disputes in the Arctic.

Hence, despite the disputes, there have been notable instances of cooperation among Arctic states. The 2010 Treaty between Norway and Russia, which resolved a 40-year dispute over maritime boundaries in the Barents Sea, exemplifies successful bilateral negotiations. This treaty not only settled the boundary but also established frameworks for joint resource management. Moreover, the Ilulissat Declaration of 2008, signed by the five coastal Arctic states, reaffirmed their commitment to resolving disputes under the existing UNCLOS framework, signaling a preference for legal and diplomatic solutions over unilateral actions.

The Future of the Arctic

The Arctic's melting ice presents legal and environmental challenges, testing the adaptability of UNCLOS. New navigational routes and resource access heighten the need for clear governance, while the region's changing environment questions the sufficiency of existing laws in addressing issues like environmental protection and sustainable development.

A teleological interpretation of UNCLOS, focusing on its goals of equitable sea use and environmental protection, could adapt the convention to the Arctic’s unique conditions. This approach promotes cooperation and peaceful coexistence, essential as Arctic states assert territorial claims.

The role of UNCLOS and the CLCS in mediating these claims remains crucial. Future Arctic governance will rely on international law, agreements, and adaptive interpretations to address its challenges. Peaceful resolution will depend on states' commitment to cooperative diplomacy and the principles of UNCLOS, ensuring stability and equitable resource sharing in the region.

References

Jacob Styburski, The Trouble with Navigating the “Law of the Sea” in the Arctic, Mich. J. Int. Law, https://www.mjilonline.org/the-trouble-with-navigating-the-law-of-the-sea-in-the-arctic/ (2014).

Claudia Cinelli, The Law of the Sea and the Arctic Ocean, 2 Arctic Rev. on L. & Pol. 4, 4-24 (2011).

Joan E. Moore, The Polar Regions and the Law of the Sea, 8 Case W. Res. J. Int'l L. 204, (1976)

The author affirms that this article is an entirely original work, never before submitted for publication at any journal, blog or other publication avenue. Any unintentional resemblance to previously published material is purely coincidental. This article is intended solely for academic and scholarly discussion. The author takes personal responsibility for any potential infringement of intellectual property rights belonging to any individuals, organizations, governments, or institutions.