Note: Frozen Assets: Ownership of Arctic Mineral Rights Must be Resolved to Prevent the Really Cold War
Quicktabs: Citation
Facially, it appears that the United Nations Convention on the Law of the Sea (UNCLOS), a comprehensive international maritime treaty establishing rights, responsibilities, and procedures for settling claims in the world’s oceans and seas, should be the proper mechanism to determine jurisdiction in the Artic.9 UNCLOS, how- ever, is not a viable option because not all of the interested parties have ratified the treaty and the UNCLOS component that recom- mends limits of the continental shelf has not achieved the status of customary international law.10 While the United Nations should take steps to address these shortfalls, it is highly unlikely that any amendment to the present regime will be proposed and accepted before anarchy on the high Arctic seas ensues. UNCLOS, therefore, is not the answer.
The need for energy is a global issue. As energy demands increase in the developing world—particularly in the People’s Republic of China and India—the demand and search for the world’s limited oil and gas supply intensifies; and more countries become interested in the Arctic’s resources.47 Despite their distance from the Arctic, China and India are poised to become key players in the Arctic oil and gas regime, and not merely as consumers.48 China, India, and other nations have already approached Norway in an effort to explore options in the Barents Sea to both secure their own energy needs and financially exploit the Arctic’s resources.49
Application of the common heritage of mankind principle to the Arctic would not be unique; the international community has embraced this theory in other treaties, such as UNCLOS and the Agreement Governing the Activities on the Moon and Other Celes- tial Bodies (Moon Agreement).213 In UNCLOS, “the sea-bed and ocean floor . . . beyond the limits of national jurisdiction, as well as its resources, are the common heritage of mankind, the explora- tion and exploitation of which shall be carried out for the benefit of mankind as a whole.”214 Likewise, in the Moon Agreement the natural resources of “outer space [are to] be used for the benefit of all mankind.”215 Other treaties that embrace the common heritage of mankind principle include the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies;216 the 1972 Con- vention on International Liability for Damage Caused by Space Objects;217 and the 1975 Convention on Registration of Objects Launched into Outer Space.218
Ratified by 160 states, UNCLOS is accepted and followed around the world.168 Even though the United States is not a party to the treaty, U.S. case law adopts and acquiesces to the provisions of UNCLOS and treats them as customary international law.169 For example, in United States v. Alaska, the government noted that the United States “has not ratified [UNCLOS], but has recognized that its baseline provisions reflect customary international law.”170 Given this apparent acceptance of UNCLOS principles, perhaps over time the United States will lose the ability to claim it is not a party to UNCLOS because of the power of acquiescence.171
While global warming will melt enough of the polar ice cap to make the extraction and transportation of undersea oil and gas more readily available by 2030-2040,69 the Russians and Norwegi- ans have demonstrated that drilling in the Arctic is already possi- ble. Russia, facing harsh conditions such as temperatures as low as negative fifty degrees Celsius, is preparing to drill in Arctic offshore fields in the Barents and Kara Seas.70 Meanwhile, the Norwegians have successfully inaugurated the offshore fields of the bitterly cold East Arctic.71
Ending speculation that harsh conditions and technological limitations would prevent drilling in the Arctic for many years to come, Norway’s state-owned Statoil brought offshore gas facilities online in 2007.72 After twenty-five years of “false starts, planning and con- struction,” the Snohvit73 facility is fully operational in the Barents Sea.74 Statoil expects Snohvit to yield $1.4 billion of liquefied natu- ral gas (LNG) each year for the next twenty-five years.75 Snohvit demonstrates Statoil’s success developing the “skills and technology necessary to successfully drill in the Arctic.”76