That means that rights to the extended shelf really aren’t of any immediate value; they grant no control over shipping or air traffic and certainly aren’t going to allow anyone to set up a customs post at the North Pole. If there is a rush, it is not because there is something of immediate value to fight about but for a much more mundane reason: the deadline for filing claims is approaching. Russia and Norway already have claims in place, and Norway’s claim in the Barents and Norwegian seas was approved in March 2009, although that does not resolve border disputes. Canada has until 2013 and Denmark until 2014. The United States has yet to ratify the United Nations Convention on the Law of the Sea (UNCLOS), so it has ten years after it does. It is worth claiming because if a nation doesn’t, any benefits, however unlikely, will be lost. Back in 1867 when America bought Alaska from Russia for $7 million, critics attacked the waste of money on land that contained “nothing of value but furbearing animals.” No one thinks that money was wasted now.
The tight deadlines do have another consequence. They apply to all UNCLOS claims, everywhere in the world, and right now there is a global rush. The ten-year deadline for nations that ratified the convention early on was set at May 13, 2009, and submissions from more than fifty nations, from Ireland to China, have arrived at the United Nations. One estimate is that it will take the commission thirty-five years to clear the queue.
For lessons on how overlapping claims might be settled, ongoing border disputes are instructive. They are also important in their own right, especially as two of them are in oil-rich areas. The first of those is the United States versus Canada. The land border between Alaska (United States) and the Yukon (Canada) for the most part runs straight along the 141st line of longitude, a line that if you follow north will run straight to the pole. The demarcation line was agreed in 1823 in negotiations in Moscow between Great Britain and Imperial Russia, written in French, and passed on when Alaska was bought by the United States and Canada became independent. What happens when that straight-line land border reaches the sea? The Canadians say the line should simply continue straight on and neatly divide the coastal waters. The Americans say no: that line stops at the shore and the coastal waters are divided by a principle of equidistance from the adjoining land masses, which means the line pretty much goes at right angles to the shore, not straight on toward the pole. Of course, each nation’s preferred method gives it more of the coastal waters.
That great chunk of ocean under dispute is close to oil-rich areas of Prudhoe Bay and to the Mackenzie Valley and is likely to be valuable. The Canadian government has issued more than a dozen exploration permits to oil companies nearby in the Beaufort Sea. Both nations want to explore the disputed zone, and the higher the price of oil and gas, the lower the chance anyone will back down. I asked Rob Huebert, an outspoken commentator on Arctic security issues and associate director of the Centre for Military and Strategic Studies at the University of Calgary, if it would be settled soon.
The longer the issue is left, the more people worry about what they might lose and the more dangerous it becomes, Huebert explained. “We should have done it five years ago. We should have had a joint management scheme for oil and gas, continued to agree to disagree about where the official boundary is, and made sure that any development in the disputed zone followed the highest environmental protection standards.”
Over the other side of the Arctic, it is Russia versus Norway. Here, it is Russia that backs a border that runs along a line toward the pole from the land boundary. Norway backs the equidistance method. The disputed zone is large and, unsurprisingly, each nation backs the method that gives it the bigger area. The dispute is holding back oil exploration, and both Russia and Norway appear keen to solve it. Every year there is a rumor of an imminent breakthrough.
If the whole Arctic turns out to be covered with overlapping successful claims, as looks increasingly possible, then the “sector-line principle” and the “equidistance principle” provide two rational ways to resolve the borders of these claims. Macnab has charted these alternatives, and they have very different consequences.
Ironically, Canada would gain far more of the Arctic overall by supporting the equidistance principle (shown at the bottom), although it would lose if it applied it specifically in its border dispute with America. “There are other geometric options,” Macnab says. “The point is that the Arctic coastal states have to be prepared for bilateral and multilateral negotiation when the time comes.” Nations can take a disputed boundary to the International Court of Justice in the Hague or the United Nations International Tribunal on the Law of the Sea in Hamburg, but more often negotiation is preferred to the uncertainties of an outside court settlement.
Even so, we can guess who is going to own one very important bit of it. The Danes and Greenlanders are likely to end up with the North Pole. Of course, if nations opt for a sector-line method (shown at the top), then all claims will meet at the pole, but otherwise it is just too close to Greenland for it to easily fall within anyone else’s claim. We probably won’t have that confirmed for at least a decade. Long before then, the nations surrounding the Arctic will have to confront many other issues of governance raised by the vanishing ice.
There is a lot more to looking after the Arctic as it grows more accessible than settling claims to the sea bottom. Claims to the “extended continental shelf” only provide rights over the seabed, not the “water column,” so the huge areas of the Arctic seas beyond the 200-nautical-mile EEZ remain open to all.8 Even within the EEZ, powers are restricted. A nation has sovereign rights “for the purpose of exploring and exploiting, conserving, and managing the natural resources” of both waters and seabed, but it cannot control ships passing through these waters nor impose regulations—to prevent pollution or the dumping of trash, for example—that exceed international norms. Nations only have complete sovereignty over their “territorial seas” (the first twelve nautical miles of their seas), and even there ships have rights of “innocent passage.”
If there are no international rules to stop them, ships that aren’t really suitable for the Arctic could begin to travel there and risk oil spills as the ice retreats. Fishing boats can chase fish as they move into the newly warming Arctic if they aren’t stopped from doing so, and boats can easily carry alien species into the warming waters. Fishing boats and ships are very mobile, and fish, whales, birds, and drifting oil spills don’t recognize national boundaries, so it is not effective for each part of the Arctic to make up its own regulations. Nor can bodies which are responsible for just one sector (shipping or fishing, for example) build the best set of rules to protect the Arctic if each tackles its problems independently. Stresses from different causes (pollution plus overfishing, for example) add up, so the only effective way to look after the Arctic is by what is now known as “ecosystem-based management” that looks at all the impacts from different causes as a whole.
International cooperation is going to be needed, and governments are again turning to the Law of the Sea to look for the framework within which new rules can develop. Hidden deep within the Law of the Sea are articles that can be used to help, and lawyers are now looking at them closely to try to avoid having to build whole new treaties from scratch. Article 234 on “Ice-Covered Areas” is important. A mere 104 words long, the article was inserted at the insistence of Canada, with its perennial worry that international shipping would come plowing through its Arctic straits, ignoring Canada’s view that they are internal waterways. Article 234 allows states to apply rules on pollution that are stricter than international standards within their exclusive economic zones if they are “ice-covered” and if pollution “could cause major harm.” In 2009, Canada took advantage of this article with an amendment to its Arctic Waters Pollution Prevention Act that set tough rules out to the 200-nautical-mile limit.
Article 211(6) on “Pollution from Vessels” provides opportunities to protect defined areas that have special “oceanographical and ecological” condition
s, after consultations through “the competent international organization.” The International Maritime Organization (IMO), a United Nations body based in London, is one such organization.9 Annexes to its International Convention for the Prevention of Marine Pollution from Ships (MARPOL) allow “special areas” to be protected, which can include entire seas. (The Mediterranean and Baltic seas have special protection against oil spills, for example.) Critical habitats can be identified as “Particularly Sensitive Sea Areas.” Once an area is approved (as the seas around the Galapagos Islands and the Great Barrier Reef have been), maritime activities can be controlled and ships rerouted.
Article 211(6) only specifies how ships must behave (regarding their “discharges or navigational practices”) and cannot require them “to observe design, construction, manning, or equipment standards other than generally accepted rules and standards.” But this exclusion, which could allow ships and crews unfit for the Arctic heading for its waters, could be overcome by action on another IMO code. It has a voluntary Polar Code (the IMO Guidelines for Ships Operating in Arctic Ice-Covered Waters) which could be strengthened and made mandatory under its International Convention for the Safety of Life at Sea (SOLAS), which all IMO signatories must obey.10
The Law of the Sea also provides considerable powers to the ports at which shipping calls. Article 219 allows port states to inspect and detain unseaworthy ships; Article 218 allows them to investigate ships that may have breached MARPOL rules even if the breaches occurred outside their own economic zone.
Fish that move back and forth between the economic zones of two nations or are highly migratory are covered in two well-known Articles (63 and 64). And it could even be possible to invoke Articles 122 and 123, which instruct states bordering a “semi-enclosed sea” to coordinate its management and conservation. Many other such seas, including the Mediterranean, have done so under the auspices of the United Nations Environment Program.
It is easy to see why many lawyers believe that the Law of the Sea provides the “Constitution for the Oceans,” from which wider protection of the Arctic could flow. Already there is a buzz of activity, although conclusions are still a while away. One group of experts, calling itself Governance in a Rapidly Changing Arctic, is hoping to be ready with recommendations by fall 2010, according to testimony given by one of its members, Robert Corell, chair of the Arctic Climate Impact Assessment, to the U.S. House of Representatives in March 2009.11
Jacqueline McGlade, director of the European Environment Agency, 12 is one of the group’s leading members, and I asked her where this initiative might go. She explained that a first step is to create a compendium of all the various treaties which might relate to the Arctic. “We’ve got our eyes on all the different legally binding obligations that the various organizations in the countries have,” she said.
The list of potentially useful conventions quickly grows: it would include the OSPAR Convention on the North-East Atlantic Marine Environment, the Convention on Biological Diversity, the Basel Convention on Hazardous Wastes, and the Convention on the Conservation of Migratory Species on top of the IMO conventions on safety of life at sea and marine pollution. At the same time, the group is drawing together all the governance issues for the Arctic by talking to every group with an interest, from national states to indigenous peoples.
“At this stage we are minded to push for something to sit within the Law of the Sea,” says McGlade. “The Arctic Council would continue to provide the information base and could shine the spotlight on noncompliance.” If all the problems that are raised can be met by the conventions that can be put together, there will still be a need for an agreement to enforce them and a way of providing a presence in the Arctic. “I won’t say a police force, but certainly a presence in the Arctic to protect the public good,” says McGlade. “That is most likely to come from ships and icebreakers of the Arctic coastal states.”
There have been suggestions that a new agency of the United Nations should coordinate action in the Arctic, but any move toward more centralized governance for the Arctic has to avoid offending the Arctic states. Mead Treadwell is chair of the U.S. Arctic Research Commission, which advises the president and Congress on Arctic research, and has lived in Alaska for more than thirty years. “In Alaska we’ve worked very hard to get self-determination in the Arctic, including economic self-determination with the Prudhoe Bay oil field,” he explains. “The regions in the Arctic, whether nation state or regional government, all believe that we can manage this area responsibly and we’ve got cooperative mechanisms to do it, with the Arctic Council and the Northern Forum [a forum for circumpolar regional governments],” he explains. “Denmark is trying to give stronger local governance to Greenland and in Nunavut everybody points with pride to their strengthened local government. Another branch of world government laid on top of it will not work with the Arctic peoples. What will work is if Arctic peoples get together and say, how do we protect ourselves from rust buckets sailing through the Arctic? We will go together to the IMO.”
There are inevitably suspicions of nations from outside the Arctic taking a big interest in what happens there. States that have an Arctic coastline are unlikely to accept constraints on what they can do from organizations that include non-Arctic members. When the European Union put out its strategy document on the Arctic, a joke going the rounds in Canada was that the best response would be a strategy document on Canada’s plans for the Mediterranean. The EU application for observer status at the Arctic Council (along with applications from China, Japan, and Italy) was not approved at the council’s biannual ministerial meeting held at Tromsø in April 2009 and must wait another two years for the next such top-level meeting. The Premier of Nunavut, Eva Aariak, had publicly objected to EU membership, given the Union’s plans to ban the import of seal products, but Canada and Russia also had concerns about a stronger EU presence in the Arctic.13
No EU nation faces the Arctic seas (Greenland left the EU in 1985 over its fishery rules), and the major strategic concern of Europe is to ally itself with Norway (which twice rejected EU membership) and its Arctic oil and gas supplies. Undersea pipelines from Norway’s gas fields already supply one third of the natural gas used in the United Kingdom, Germany, and France. Just before the EU Arctic strategy was announced in November 2008, Norway’s Prime Minister Jens Stoltenberg was invited to visit Brussels where he told reporters, “You can count on Norway when it comes to energy supplies to Europe.”
Even within the Arctic nations, not all are equal. When the Arctic nations met in Ilulissat in 2008, only five were invited. Two Arctic nations, Sweden and Finland, were excluded because they do not have Arctic coastlines. Iceland, which lies just below the Arctic Circle, but would play a big role if Arctic shipping routes developed, was not invited. The Ilulissat meeting was a reminder that the Arctic coastal states see the Arctic Ocean as their own lake. That immediately angered indigenous peoples around the Arctic who were not invited. They held their own meeting in Canada in November 2008 and registered their complaint that governments were entering into Arctic sovereignty discussions without their involvement; later they described all the Arctic nations as “outsiders.”14
With all this jostling and scuffling, it is easy to see why the Arctic is emerging as a very busy region for diplomats, lawyers, and activists. There are organizations that represent national interests, subnational interests (the Northern Forum), international interests, transnational interests (like the Inuit Circumpolar Council), and sectorial interests (fishing and shipping, for example). All are busy now. Inuit are making declarations of their right to be consulted on Arctic developments, the International Association of Classification Societies is trying to unify rules for the “winterization” of polar shipping, the International Standards Organization is busy setting a new code for Arctic oil rig safety; everywhere you turn there is hectic activity. No one yet knows where this ferment will lead. Arctic nations and all these other groups may cooperate, and quarrel, over l
ong lists of things that each group feels are urgent. Perhaps a bigger set of rules and structures may be successfully put in place within the overall constitution provided by the Law of the Sea. Or maybe the five nations that front the Arctic will try to slam the door on everyone else. We may see cooperation, conflict, or a patchwork of partial solutions.
The worst prospect is that the Arctic may simply outrun any attempt to govern it. In the United States, it takes an estimated ten to fifteen years to win the budget for a new icebreaker and then design and build it. In a Korean yard, a new commercial icebreaking oil tanker can be ready in three months. If the ice vanishes in five or ten years, not a hundred, the government of the Arctic and the protection of its environment and people could easily slip out of control while there is still just a babble of competing voices.
Chapter Eight
THE STRANGE CASE OF SVALBARD
Flying into the town of Longyearbyen (latitude 78° 13’ north) in the islands of Svalbard, I am just 800 miles from the North Pole. As the plane starts to descend, the view is of snowy mountains, ice caps, glaciers, fjords, and huge expanses of brown tundra. But there’s something I didn’t expect at all. A few minutes before landing, out on a stretch of tundra by the sea, the plane flies past row after row of yellow apartment blocks, set around a cluster of enormous industrial buildings. For a moment I wonder if I’m hallucinating: who would build a high-rise housing complex up here in the High Arctic? A minute later the scene shifts again and now I’m in a science fiction movie. Below me, on an isolated dull-brown plateau streaked with snow, are white radar domes; I just have time to count seven or eight large ones, but smaller ones are scattered among them.
After the Ice Page 13