An Arctic Treaty: A Solution to the International Dispute over the Polar Region
Quicktabs: Citation
In the past, the ice covering the Arctic Ocean has presented a significant barrier to human use. One commentator asserts that, if not for the ice, “the Arctic Ocean would undoubtedly be one of the busiest seas in the history of civilization, rivaling the . . . Mediterranean.”12 Currently, only coastal regions can be navigated, and even then only by ice-breaker ships during certain times of the year, which leaves the remainder of the ArcticOcean reachable only by submarine.13 However,as further advances are made in technology and in the development of ice-breaking equipment, these waterways may become accessible year-round.14 One result of an ice- free Arctic is the opening up of a new shipping route between Europe and Asia known historically as the Northwest Passage. Access to the Northwest Passage could cut five thousand miles—or up to a week of sailing time— off circumpolar sea voyages, as these ships must otherwise travel via the Panama Canal.15 It is important to consider, however, that though seasonal melting may make the region more accessible in some respects, such melting will also result in more icebergs, creating new hurdles to access.16
The procedure prescribed by UNCLOS, the international legal framework under which most Arctic nations are currently operating, could potentially prove effective in resolving the present dispute over Arctic territory, but there are many more issues facing the region that call for a new international agreement. A comprehensive treaty would be a more effective means of resolving not just the jurisdictional controversy, but also further concerns unique to the Arctic, including the environment, national security, management and exploitation of natural resources, Inuit interests, and governance of waterway usage. The issues arising in the Arctic, due to its unique icy makeup, cannot all be addressed within the UNCLOS framework, whose principles and legal norms were developed for governance of open water, not glacial masses.163
If it ratifies UNCLOS, the United States seeks to gain “maximum freedom to navigate and operate off foreign coasts without interference,” for both security and economic purposes.87 If the United States does not ratify UNCLOS, it may attempt to assert these freedoms under customary international law. However, its ability to do so is growing weaker, as when coastal States extend their exclusive economic zones, “customary international law may . . . evolve[] in a way contrary to [American] [i]nterests.”88 Customary law is “not universally accepted, evolves based on State practice, and does not provide access to the Convention’s procedural mechanisms, such as the continental shelf commission.”89 The United States may make excessive maritime claims through customary international law or military operations, but either such approach is “less certain, more risky, and more costly” than working under the UNCLOS framework.90
Thus, an Arctic treaty is the most optimal framework for Arctic governance, as it is has the potential to address the wide range of issues that face this distinctive region, and assure future cooperation among the States. The rapidity with which the Arctic is melting and the approaching State deadlines imposed by UNCLOS for CLCS submissions demand that the States work on developing a treaty now. Representatives of the five Arctic States met most recently in Ilulissat, Greenland, in May 2008, at which time they issued a joint declaration acknowledging the changing conditions of the Arctic due to climate change.183 The declaration also indicated an intention and commitment to continued Arctic governance under UNCLOS.184 In apparent response to the growing criticism of that approach, the declaration stressed the five States’ commitment to cooperating with each other, and concluded, “We therefore see no need to develop a new comprehensive international legal regime to govern the Arctic Ocean.”185 The Arctic States’ adherence to the UNCLOS framework, however, is fraught with the potential for future conflict as issues arise for which the treaty has not provided. The time to develop an Arctic treaty is now, while the States are expressing a commitment to cooperation, and before any one State gains an advantage over the others by successfully securing sovereignty over a portion of the Arctic. Because of the uncertainty as to the strength of each State’s claim, and the risk to each that sovereignty may be denied it in favor of another State, it would be in each State’s best interest to enter into an Arctic treaty now to assure its continuing role in governance of the region.