Evidence: Recently Added
While the other Arctic powers are racing to carve up the region, the United States has remained largely on the sidelines. The U.S. Senate has not ratified the UN Convention on the Law of the Sea (UNCLOS), the leading international treaty on maritime rights, even though President George W. Bush, environmental nongovernmental organizations, the U.S. Navy and U.S. Coast Guard service chiefs, and leading voices in the private sector support the convention. As a result, the United States cannot formally assert any rights to the untold resources off Alaska's northern coast beyond its exclusive economic zone -- such zones extend for only 200 nautical miles from each Arctic state's shore -- nor can it join the UN commission that adjudicates such claims. Worse, Washington has forfeited its ability to assert sovereignty in the Arctic by allowing its icebreaker fleet to atrophy. The United States today funds a navy as large as the next 17 in the world combined, yet it has just one seaworthy oceangoing icebreaker -- a vessel that was built more than a decade ago and that is not optimally configured for Arctic missions. Russia, by comparison, has a fleet of 18 icebreakers. And even China operates one icebreaker, despite its lack of Arctic waters. Through its own neglect, the world's sole superpower -- a country that borders the Bering Strait and possesses over 1,000 miles of Arctic coastline -- has been left out in the cold.
Secondly, as mentioned previously, Article 4 of the Convention asserts a ten-year limit for Parties to submit “excessive” continental shelf claims to the CLCS for adjudication. Adjudication, however, only provides an internationally recognized delineation of the claim and not a final delimitation where such a claim may be disputed by a state with an opposite or adjacent coast. Such disputes must be settled by mutual agreement of the contesting parties, or submitted to one of the aforementioned bodies for a binding resolution.
In the case of Russia in particular, upon acceding to the UNCLOS in 1997 and in accordance with Article 298 therein, it declared that it
"does not accept the procedures, provided for in Section 2 of Part XV of the Convention, entailing binding decisions with respect to disputes concerning the interpretation or application of articles 15, 74 and 83 of the Convention, relating to sea boundary delimitations, or those involving historic bays or titles; disputes concerning military activities, including military activities by government vessels and aircraft, and disputes concerning law-enforcement activities in regard to the exercise of sovereign rights or jurisdiction; and disputes in respect of which the Security Council of the United Nations is exercising the functions assigned to it by the Charter of the United Nations.151
In effect, Moscow declared that it would accept delimitation of disputed boundaries only on a bilateral basis, negotiated outside the UNCLOS regime. Russia’s pending resubmission152 to the CLCS of its excessive continental shelf claims has been interpreted as merely a diplomatic maneuver of convenience to gain recognition for its claims and not an earnest effort to use the UNCLOS as a peaceful dispute resolution mechanism.
Finally, in the longer term, the gradual opening of Arctic waterways to commercial traffic on a seasonal basis by 2030 will increase the need for persistent and pervasive constabulary patrols by all Arctic nations in order to regulate this activity. Not only will more ice-capable patrol vessels be required, but so too will be a robust logistics infrastructure, to include basing, transportation, supply, and communications. This third window for conflict in the Arctic will probably occur in the 2030 to 2045 time frame. The increase in commercial traffic activity will heighten tensions in U.S.-Canadian relations if a political compromise on the status of the Northwest Passage has not been reached, keeping in mind that the ultimate status of Russia’s Northeast Passage would be likewise affected. As Canada is extremely sensitive to matters of Arctic sovereignty and Russia is are unlikely to welcome unrestricted movement through its backyard, it should be expected that the same nationalist sentiment that erupted in the Sino-Japanese row over the disputed Senkaku/Diaoyu Islands would likewise be manifest in these cases as well, leading to a quick, and potentially intense, confrontation involving the United States, Russia, and Canada.
Based on the methodology established for this analysis, it can be reasonably assessed that conflict in the Arctic is likely. To put this another way, with a score of 18 out of 24 possible points, there is a 75 percent chance that maritime disputes involving the United States and Russia will occur in the Arctic necessitating the show or use of force to achieve a political objective. It should be reiterated that this assessment is acknowledged to be an analytically subjective conclusion and that the intervals of measurement are notably coarse. The evidence presented in this analysis, however, supports this conclusion. Policy-makers should take care not to discount the physical indicators and declared policies of other Arctic nations when judging the seriousness of their intent to protect their various claims in the region. Advocates of a “Pax Arctica” involving regional cooperation ignore the more pragmatic factors underlying international relations and the actual limits of international institutions and economic incentives in restraining actors’ behavior in an anarchic system.
While it is undeniable that the Arctic states are using international institutions focused on Arctic issues, they appear to do so out of political convenience—not out of a commitment to peaceful cooperation. The participating nations all actively pursue a combined environmental and safety agenda with their partners through the Arctic Council. Its charter, however, explicitly bans the organization from discussing issues related to military security, a point reinforced by the Ilulissat Declaration of the five Arctic states: that is, no legal enforcement regime other than the UNCLOS is needed in the region.216
To that end, the UNCLOS does indeed provide conflict resolution mechanisms for territorial disputes and continental shelf claims, but Russia exempted itself from discussing such matters in UNCLOS fora when it acceded to the Convention. Moreover, while the United States continues to observe the UNCLOS as customary international law, it remains outside the Convention and is unable and unwilling to use its dispute resolution mechanisms.
Meanwhile, Russia’s actions and rhetoric in the Arctic leave no room to deduce anything but a firm and committed intent on the part of its leadership to secure its claims. There have been scant, if any, peaceful actions undertaken by the Putin and Medvedev administrations to back up their peace-seeking rhetoric. Calls for diplomatic resolution of territorial disputes in the Arctic and for working “within existing international agreements and mechanisms” have only been operationalized through agreements to cooperate on search and rescue efforts and on (competitive) scientific exploration and research for submission to the Commission on the Limits of the Continental Shelf (CLCS), a forum that has no binding authority to settle such disputes. All the while, however, Russia’s ambitious militarization of the Arctic has been clearly reinforced with explicit rhetoric proclaiming its intent to defend its national security interests. For Russia, the natural resources in the Arctic are a national security asset of strategic importance.
The primary argument against the potential for conflict in the Arctic is that political leaders are appealing to international institutions to resolve disputes before they become militarized. A corollary to this argument is that, via the trappings of economic interdependence, Russia’s need for advanced technology to locate and exploit its potentially vast reserves of hydrocarbons will sufficiently weigh in Moscow’s political calculus to prevent Russia from taking militarized action against neighbors to defend its political-economic claims in the region. Given the reality of political objectives, actions, and intentions, coupled with the dearth of reliably interdependent economic ties, this chapter has exposed these “mitigating factors” against conflict as little more than wishful thinking.
While it is undeniable that the Arctic states are using international institutions focused on Arctic issues, they appear to do so out of political convenience—not out of a commitment to peaceful cooperation. The participating nations all actively pursue a combined environmental and safety agenda with their partners through the Arctic Council. Its charter, however, explicitly bans the organization from discussing issues related to military security, a point reinforced by the Ilulissat Declaration of the five Arctic states: that no legal enforcement regime other than the UNCLOS is needed in the region.
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.
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
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