Correlation of rights and interests of the circumpolar and other states in the use of the Arctic region

Shinkaretskaya Galina Georgievna Doctor of Law Chief Scientific Associate, the sector of International Law, Institute of State and Law of the Russian Academy of Sciences 119019, Russia, g. Moscow, ul. Znamenka, 10 gshink@yandex.ru Other publications by this author

Rednikova Tatiana Vladimirovna PhD in Law Senior Scientific Associate, Department of Environmental, Land an Agrarian Law, Institute of State and Law of the Russian Academy of Sciences 119019, Russia, Moscow, Znamenka str., 10 trednikova@gmail.com Other publications by this author

The research was carried out with the financial support of the RFBR in the framework of scientific project No. 20-011-00401      

Introduction

The harsh natural conditions of the Arctic have made economic activity in this region almost impossible for many centuries. Only the local population – indigenous small-numbered peoples, as well as others who settled here, were engaged in the extraction of natural resources, as well as transport activities, practically only in the interests of their own survival. Therefore, the world community, even at the stage of active development of all regions of the globe, did not pay much attention to the polar dome. As a result of international custom, the norm of recognition of the special rights of the circumpolar states to establish their own law and order here has developed.  These states (Russia, Denmark, Canada, Norway, USA), applying the universally recognized UN Convention on the Law of the Sea, have established their jurisdiction zones here, which allows them to extract natural living and mineral resources, and also extended their jurisdiction to shipping lanes that require constant work to keep them in working condition, and therefore and significant investments, so that these shipping lanes are approaching the status of canals in their position.

       The situation has changed with the onset of climate change. Climate warming and ice melting have transformed the Arctic from an isolated region with limited geopolitical and geo-economic significance into the next great frontier of opportunities for countries around the world.

Climate change in the Arctic

Without going into the reasons, we state that climate warming has a special impact on the Arctic. There is evidence that the temperature in this region is rising twice as fast as the global average. Since the 1980s, Arctic sea ice coverage has decreased by seventy-five percent (see: URL: https://topwar.ru/68160-kolichestvo-lda-v-arktike-umenshaetsya-na-glazah.html (accessed: 08/28/2021)), reaching a record low by 2019 (see: URL: https://www.pnp.ru/social/smi-v-arktike-tolshhina-morskogo-lda-dostigla-rekordnogo-minimuma.html (accessed: 08/28/2021)).

In this regard, some researchers believe that by 2050 the Arctic Ocean may be completely ice-free in the summer, while others even predict the onset of such a situation by 2025. (see: URL: https://altapress.ru/obrazovanie/story/k-godu-arktika-polnostyu-osvoboditsya-oto-lda-157322 (accessed: 08/28/2021)).

         Such changes lead to a revival of economic activity in the region. Hydrocarbons make up a considerable share in the list of economic activities in the Arctic. According to the US Geological Survey, approximately 22% of the world's undiscovered oil reserves and 30% of undiscovered natural gas are located in the Arctic region (see: U.S. Geological survey newsroom, URL: http://www . usgs.gov/newsroom/article.asp?ID=1980#.VCcy-_ldV8E (accessed: 08.07.21)). The presence of oil here has been known for a long time, but these reserves have become technically and economically accessible only with the melting of the ice. About 84% of the estimated resources lie in the sea, about 10% of the proven reserves of natural gas and also about 10% of the world's known oil reserves are located in onshore fields north of the Arctic Circle. This situation reminded some of the times of the "gold rush" ^{[1, p. 15]}.

       The liberation of the Arctic Ocean from ice opens up new opportunities for navigation. Compared to traditional routes passing through the Suez and Panama Canals, Transarctic shipping lanes are much shorter, which reduces transit time and reduces fuel costs. For example, the Northern Sea Route, which runs along the Arctic coast of Russia, reduces the distance from China to Northern Europe by 40% compared to the route through the Suez Canal.

(see: URL: https://ria.ru/20210902/spg-1748362736.html (accessed: 08.07.21)). Similarly, the Northwest Passage, consisting of seven possible routes passing through the Canadian Archipelago, provides a forty percent reduction in the path between the Pacific and Atlantic Oceans compared to the route through the Panama Canal.

       In addition, the melting of the ice opens up a sea route through the center of the Arctic Ocean, sailing through which can reduce the passage time by twenty percent compared to sailing both along the Northern Sea Route and through the Northwest Passage. However, experts say that this route will not be navigable until about 2050, when the ice at the North Pole will become thin enough for icebreakers to pave a direct path between the Pacific and Atlantic Oceans (see: Emma Innes, By 2050 the Arctic IceSheetWillbesoThinthatShipsCouldbeSailingAcrosstheNorthPole, ExpertsPredict, DAILYMAIL (Mar. 4, 2013, 3:04 PM), http://www.dailymail.co.uk/sciencetech/article-2288031/By-2050-Arctic-ice-sheet-ships-sailing-North-Pole-experts-predict.html( date of application: 08.07.21)).

       In recent years, as the ice melts, commercial transportation through the Arctic has been noticeably increasing: in 2010, only four commercial vessels passed through the Northern Sea Route, already in 2013 71 vessels made a passage (see: Lucy H. London, LNG Carrier Lined up for Northern Sea Route Transit, TRADEWINDS (Sept. 5, 2014), URL: http://www.tradewindsnews.com/weekly/344070/LNG-carrier-lined-up-for-Northern-Sea-Route-transit (accessed: 08.07.21)). The total volume of cargo has also increased – from 1.26 million tons in 2012 to 7.26 million tons in 2016, and in the period 2020-2022, a quantitative and qualitative jump in cargo traffic is expected, which can reach 35 million tons per year (see: URL: https://www.kommersant.ru/doc/3254502 (accessed: 08.07.21)), and by 2035 this the figure may grow to 120 million tons (see: URL: https://www.kommersant.ru/doc/4141783 (accessed: 08.07.21)).

Long-term climate forecasts confirm these estimates: by the middle of the century, most conventional vessels will be able to cross the Northern Sea Route on open water without the help of icebreakers (see: Gleb Bryanski, Russia's Putin Says Arctic Trade Route to Rival Suez, REUTERS (Sept. 22, 2011, 4:04 PM) // URL: http://ca.reuters.com/article/topNews/idCATRE78L5TC20110922 (accessed: 08.07.21)). In 2014, Russia received a record 604 applications for passage by the Northern Sea Route, which indicates the growing expectations of the shipping industry for a higher profit margin due to the use of the shortest route. Cargo traffic is also increasing through the northwest Passage in the Canadian Archipelago. Almost half of the passageways, counting from the beginning of the operation of the passage, account for the period after 2007 (see: R. K. Headland (Scottpolarres. Inst.), Transits of the Northwest passage to the end of the 2014 navigation season (2014) // URL: http://ca.reuters.com/article/topNews/idCATRE78L5TC20110922 (accessed: 08.07.21)).  However, the conditions of navigation through the Northwest Passage are less favorable than along the Northern Sea Route: the ice situation here is heavier, and the passage itself is very shallow in places.

Overall, climate change has transformed the Arctic from a frozen desert into a global frontier of economic opportunity. In addition to immediate plans for shipping and resource extraction, companies are also ready to deploy other ways to create infrastructure and create new-class vessels.

International legal problems of the use of the Arctic

Currently, there is no single comprehensive agreement on the use of the Arctic. The rule of law consists of regional and sub-regional agreements, national legislation and soft law. Legislation plays a particularly significant role, since most of the area falls within the jurisdiction of the Arctic States.

       The most important place in the Arctic legal order belongs to the UN Convention on the Law of the Sea of 1982 (United Nations Convention on the Law of the Sea (UNCLOS) (concluded in Montego Bay on December 10, 1982) (with ed. dated 23.07.1994) // URL: https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_r.pdf (accessed: 10.08.21) - hereinafter referred to as the UN Convention on the Law of the Sea).  This document, which is rightly called the Constitution and the Great Charter of the Oceans, creates a common basis for ocean governance.

          There are 168 parties to the Convention, including 167 States (164 UN member States, UN observer State Palestine and non-UN member Cook Islands and Niue, as well as the international organization European Union. Another 14 UN member states have signed, but not ratified Convention (URL: https://ru.xcv.wiki/wiki/List_of_parties_to_the_United_Nations_Convention_on_the_Law_of_the_Sea (accessed: 10.08.21)).  Seven of the eight circumpolar States are among the parties to the Convention. The United States has not ratified the Convention, but has largely accepted it, stating that the United States recognizes the key provisions of the Convention as expressing customary international law (See: New York Times, July 10, 1982. // URL: https://www.nytimes.com/1982/07/10/world/us-will-not-sign-sea-law-treaty.html (accessed 10.07.21).

          Of the entire Convention, only one provision directly concerns the Arctic. This is article 234 regarding regions covered by ice. It states that in ice-covered areas, coastal States have the right to adopt and enforce laws and regulations to prevent, reduce and control marine pollution from ships, within the exclusive economic zone, where particularly harsh climatic conditions and the presence of ice covering such areas for most of the year, they create obstacles or an increased danger to navigation, and marine pollution could cause severe damage to the ecological balance or irreversibly disrupt it. The essence of this article is that the circumpolar States are obliged to ensure, on the one hand, the prevention of marine pollution and, on the other, the safety of navigation in ice-covered areas. It does not, however, authorize coastal States to make such decisions after clarifying the state of the ice, as S. Kay correctly notes ^{[2, p. 78]}.

          The circumpolar States actively and widely used the provisions of the Convention in the Arctic Ocean, as well as in other areas of the World Ocean, to establish the limits and legal regime of their jurisdiction zones ^{[3, p. 303]}.

          In May 2008, five Arctic coastal states, Russia, Canada, Norway, Denmark and the United States, following negotiations in Ilulissat, signed the so-called ILULISSAT Declaration (THE ILULISSAT DECLARATION. ARCTIC OCEAN CONFERENCE ILULISSAT, GREENLAND, 27 – 29 MAY 2008 // URL: https://ru.convdocs.org/docs/index-37410.html (accessed 10.07.21)), which reflected their vision of law and order in the Arctic. In particular, the Declaration states: "The law of the Sea provides for important rights and obligations concerning the definition of the outer limits of the continental shelf, the protection of the marine environment, including areas covered by ice, freedom of navigation, marine scientific research and other uses of the sea. We remain committed to this legal framework and to the orderly resolution of any possible competing claims." The Declaration also notes that "there is no need to develop a new comprehensive legal regime for the management of the Arctic Ocean."

          Thus, although there have been proposals from scientists to create a completely new contractual regime for the use of the Arctic, similar to the Antarctic regime (see: John B. Bellinger, Treaty on Ice, N.Y. TIMES (Jun. 23, 2008) // URL: http://www.nytimes.com/2008/06/23/opinion/23bellinger.html?_r=2 & (accessed 10.07.21)), the participating States of the Conference in Ilulisate, expressed their approval of the trends in the development of law and order in the Arctic, which have already developed.

Zones of jurisdiction of coastal States in the Arctic Ocean

 The sovereignty of coastal States extends to the territorial sea of each of them with a width of up to 12 nautical miles (Articles 2 and 3 of the UN Convention on the Law of the Sea). Within this sea belt, coastal States may restrict foreign navigation and exercise exclusive rights to living resources found in the water column (fish) and non-living resources of the seabed (hydrocarbons).

The sovereign rights of coastal States extend to living and non-living resources in exclusive economic zones extending 200 nautical miles from the coast (Article 55 of the UN Convention on the Law of the Sea), as well as to living and mineral resources of the seabed and its subsoil within the so-called continental shelf, that is, the bottom, which is a natural extension of the territory of the state; The continental shelf can be set 200 nautical miles wide, although sometimes it can be extended to 350 miles (Article 76 of the UN Convention on the Law of the Sea). Beyond the zones of sovereignty and sovereign rights, there is an open sea and its bottom that are not subject to anyone's jurisdiction.

After the establishment of jurisdiction zones in the center of the Arctic Ocean, a small space remained, which is sometimes called the "bagel hole", formally, in accordance with the Convention, should be the open sea. However, with the development of mineral resource extraction technology, the Arctic states began to claim the expansion of their continental shelves. In 2001, Russia submitted an application to the UN Commission on the Limits of the Continental Shelf, claiming on the basis of geological data that almost the entire bottom of the Arctic Ocean is a continuation of the Siberian continent and therefore can be included in the extended continental shelf of Russia. According to the Commission, the data provided was insufficient. Since then, Russia has already conducted extensive research in support of its application, but a decision on this issue has not yet been made.

At the end of 2014, Denmark submitted an application to the UN Commission on the Limits of the Shelf, claiming almost the entire Arctic Ocean (see: Richard Milne, Denmark's Claim to North PoleFansGeopoliticalRivalry, FIN. TIMES (Dec. 18, 2014, 6:29 PM) // URL: http://www.ft.com/intl/cms/s/0/49 a 5 a 1 ca-85 e 3-11 e 4-b 11 b-00144 feabdc 0.html#axzz 3 P 3558 ktp(accessed 10.07.21)). In the process of preparing the application, Denmark "spent $55 million and 12 years collecting data." A decision on her application has also not yet been made.

Canada has also announced its intention to claim the North Pole, arguing that it is essential to protect its sovereignty (see: Frozen Conflict, ECONOMIST (Dec. 20, 2014) // URL: http://www.economist.com/news/international/2163 6756-denmark-claims-north-pole-frozen-conflict(accessed 10.07.21)).

Another Arctic state, Norway, has indicated that it will not claim the North Pole.

According to its geological and geomorphological data, the United States could also claim to expand its continental shelf in the Arctic Ocean; the United States even conducted some studies on the structure of the bottom adjacent to Alaska, but the United States, without ratifying the Convention on the Law of the Sea, does not have the right to apply to the Commission on the Limits of the Continental Shelf.

From a geological point of view, one of the controversial points is that the bottom of the Arctic Ocean is geologically a continuation of both the European and American continents, and the Lomonosov Ridge runs almost through the center of the ocean. Thus, the provisions of Article 76 of the UN Convention on the Law of the Sea on the Geological Extension of the Shelf beyond 200 miles are not enough to make a final decision on this issue. In addition, research and drilling of the seabed for mining purposes is extremely expensive, so the extraction of Arctic mineral resources is probably not a question of today.

The issue of shipping seems more urgent. The UN Convention on the Law of the Sea grants foreign merchant ships and warships the right of peaceful passage through the territorial sea, the right of free navigation within the exclusive economic zone and on the high seas. In inland waters, foreign navigation is possible only with the permission of the coastal State. For the Arctic Ocean, the issue of navigation in internal waters is of particular importance, since both Russia and Canada have long argued that the Northern Sea Route and the Northwest Passage, respectively, are internal waters. The United States disputes both claims, since both waterways are, in their opinion, international straits through which vessels from all countries can freely pass. A somewhat similar situation arose in 1948 in the Strait of Corfu, where an English ship ran into a mine left after World War II. England believed that this was an international strait and therefore her ships could pass freely here, and Albania, whose internal waters formally constituted the strait, was obliged to ensure the safety of navigation. England appealed to the International Court of Justice.  According to his decision, a waterway is an international strait if it connects two parts of the open sea and is used for international navigation ^[4].  The UN Convention on the Law of the Sea provides that if the straits used for international navigation are blocked by the territorial sea of a coastal state, then foreign vessels are granted the right of “transit passage” in them (Article 38), which is very similar to peaceful passage, but less regulated by national legislation and should not be hindered (Article 39).

         However, according to Article 35, the transit passage does not operate in those internal waters that were formed in the strait as a result of drawing direct baselines between the capes and adjacent islands.  According to the decision of the International Court of Justice in the Anglo-Norwegian Fisheries Case ^[5], coastal States have the right to exercise full sovereignty in such waters and may deny access to foreign vessels.

          In the case of the Northwest Passage, the key question is whether the Strait was “used for international shipping” before Canada drew direct baselines in 1985. There is no evidence that any non-Arctic State actually used the Strait before drawing these baselines. Only the United States, which conducted several ships through the Strait before 1985, can claim that they used the strait.

          Similarly, the United States is the only country whose ships passed through the Northern Sea Route before Russia announced the drawing of baselines in 1985. It was the passage of an American icebreaker through the Laptev Sea. Can the United States claim that the facts of the passage of several vessels under the same flag constitute “international shipping"? Unfortunately, we were unable to find out whether the passages of the American vessels mentioned above were made with the requested and received permission of the authorities of the coastal States – Canada and the Soviet Union. There is reason to believe that permits were obtained, at least in the case of the Northern Sea Route, since sailing along it without a pilot and without information support from the coastal authorities is impossible. If so, the passage of vessels with a permit cannot be considered international shipping.

However, there is no indication that Russia and Canada intend to close these routes to foreign shipping at a time when the number of vessels intending to pass through the Arctic Ocean is growing rapidly. Of course, it can almost certainly be argued that fees for environmental and other purposes will increase, and probably significantly.

Some researchers believe that the situation will be resolved by the 2050s, when the melting of the ice will lead to the fact that the Arctic Ocean will be completely cleared of ice, and ships will sail along the central part, outside of anyone's internal waters.

In conclusion, I would like to note that over the past two decades, the Arctic region has radically transformed from a frozen wasteland into the "last global frontier" of economic opportunities. As the polar ice sheet melts to record lows, huge untapped hydrocarbon deposits and short shipping routes are opening up for commercial development. As a result, the Arctic is rapidly globalizing, including because non-Arctic states are increasingly fighting for the right to vote in Arctic affairs. In some significant respects, the Arctic States have taken steps to take into account the interests of these remote States. The adoption by the Arctic Council of six additional non-Arctic observers in 2013 served as a general legitimization of the interests of non-Arctic States in the region, and also provided these six States with a certain degree of influence in Arctic affairs. At the present stage, in order to ensure the interests of the Arctic States in the region, both political and economic, and others (for example, global security and protection of the region's environment, which is particularly sensitive to negative impacts), it is extremely necessary to form a unified position of the coastal states on the entire spectrum of key regional problems.