Evidence: Recently Added
If one were to form an opinion about the risk of conflict stemming from a perceived ‘scramble for the Arctic’, such as is portrayed by media sources, and even a few well-respected academic writers, it would be understandable if the reader came away with an opinion that the Arctic is a powder-keg waiting to be ignited by greed-fuelled interests.
Based on the research presented here, it is hoped that a more measured opinion may be formed, which recognizes that while there are numerous sources for potential dispute in the region, there is also the recognition that Arctic stakeholders have much more to gain through cooperation than through confrontation. In spite of isolated moments of inflammatory rhetoric and grandstanding, the relationship between the key Arctic states and stakeholders has been marked by optimism and mutual cooperation. There is an incredible opportunity for governments, industries and indigenous peoples to all benefit from the changes occurring in the Arctic. While the current governance and security architecture can be improved upon to ensure that consistent and ade- quate legislation and enforcement mechanisms are in place, what is needed above all is continued cooperation and goodwill between all the parties that stand to gain from the opportunities presenting themselves in the High North.
With an increasingly globalized world comes a globalized economy. Inherent in such an economy is a security element, which serves to deter states from actions that run contrary to the greater economic good. When coupled with the military deterrent provided by the US, it is all but inconceivable that Russia, or any Arctic state would engage in military activity in the region, which goes beyond a simple show of force.
This suggests that the existing security apparatus in place in the Arctic is sufficient to meet both current and future requirements. That apparatus is built around the sovereign authority of the Arctic Five states, and is bolstered by the Arctic Council. The Council provides not only a forum for mutual discussion and understanding, but also encourages consistency in Arctic policy development and enforcement. Backing it up is the legislative framework of UNCLOS, which provides the legal backbone from which to seek resolution of maritime boundary disputes. The globalized economy provides an additional deterrent to irresponsible actors, primarily through the actions of risk-averse investors who will sell off investments and thus rob the actors of much needed capital.
From Russia’s security strategy,40 and evidence of Russia’s pragmatism in its approach to the Arctic, it is possible to draw two broad security conclusions: First, Russia is unlikely to engage in any military confrontation that could potentially damage its economic security. This is consistent with Russia’s broadly conciliatory approach to the Arctic, despite its often-inflammatory rhetoric, and symbolic actions such as placing a Russian flag on the seabed beneath the North Pole. Russia’s approach is underpinned by a belief that it has both the law, and scientific evidence in its favour, and that it therefore has a legal right to a significant unclaimed portion of Arctic seabed, particularly along the Lomonosov Ridge. If Russia’s claim to the CLCS is eventually successful, it stands to gain approximately 460,000 square miles, or half of the Arctic’s seabed and the rich resources contained therein.41 The second conclusion this author can draw is that should Russia fail to gain the Arctic resources it expects through legal and procedural means, there is so much at stake in terms of Russia’s economic security, that other Arctic actors need to plan for the contingency that Russia might attempt to assert its control over Arctic resources and territory through alternate means.42
The international body responsible for claims submitted to extend a state’s EEZ based on the continental shelf, is the UN Commission on the Limits of the Continental Shelf (CLCS).29 For a state to make a claim to this committee, it must be a ratified signatory to the UNCLOS, and must make any claims within 10 years of ratification.30 The CLCS has itself come under criticism. Most notably, excessive CLCS confidentiality rules leave states unclear as to the Commission’s rationale for its recommendations regarding a submitted claim.31 A key point of clarification is required here. The CLCS’ role is to make recommendations to the states as to whether their claims fully meet the criterion set out in UNCLOS article 76, and are fully backed by adequate scientific data. These ‘recommendations’ are more than they seem, however. States that make claims to the CLCS agree that the recommendations shall be final and binding, giving the CLCS’ recommendations the de facto status of rulings. What the CLCS is not, is an arbitration body that has any mandate to settle conflicting or overlapping claims, unless the disputing parties jointly request it.32 In spite of these criticisms, the stakes are sufficiently high to have prompted Arctic coastal states such as Russia, Canada and Denmark to embark on undersea mapping expeditions to bolster current and future continental shelf submissions to the CLCS.
UNCLOS is, in many respects, an amazing treaty. Hailed as "possibly the most significant legal instrument of [the twentieth] century,"UNCLOS strikes a delicate balance between freedom of navigation and utilization of the oceans on the one hand, and on the other, sovereign rights and control over the ocean and its resources.1 It solves long-standing issues that had proved to be intractable (e.g., the allowable breadth of the territorial sea) and creates new legal regimes to reflect evolving state practice (such as the exclusive economic zone). Against a backdrop of overweening national self-interest, it achieves a remarkable degree of consensus and compromise in areas that significantly impact national sovereignty and sovereign rights, particularly over resources-matters that have historically caused nations to go to, or threaten, war.2
UNCLOS relies for these purposes on dozens of such conventions, but this article will focus on five that are particularly significant and wide-ranging: the International Convention for the Safety of Life at Sea (the SOLAS Convention); the InternationalManagement Code for the SafeOperation of Ships and for Pollution Prevention (ISM Code); the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW Convention); the International Convention for the Prevention of Pollution from Ships (MARPOL Convention); and the International Ship and Port Facility Security Code (ISPS Code).
Before turning to the specifics, however, a few background topics need to be discussed. The first of these is the "organization that has probably had the most substantial direct effect on the law of the sea"-the International Maritime Organization. 39 The IMOis the "United Nations' specialized agency with responsibility for the safety and security of shipping and the prevention of marine pollution by ships."40 The convention establishing the IMOwas adopted in 1948 and came into effect in 1958; the IMO's first meeting was held in 1959.Most of its work is done in committees, including the Maritime Safety Committee, the Marine Environment Protection Committee, and the Legal Committee. These bodies identify needs for new conventions or for amendments to existing ones. All of the important conventions to be discussed in this section were adopted under the auspices of the IMO, which today oversees the process of keeping these conventions abreast of developments in maritime and related industries.
Finally, the "other" law of the sea, like UNCLOS, consists of treaties that are notionally binding only on signatory states. Thus, theoretically, nonsignatory nations do not have to comply with their standards, and coastal/port states cannot formally utilize the specific provisions of these treaties when taking, or anticipating the need to take, control actions aboard vessels of nonsignatory states. But the reality is that the vast majority of nations in general, and flag states in particular, have adopted them. A very few vessels flagged by nonsignatory states do engage in international trade; it can certainly be argued, however, that many of the provisions of the supplementary instruments are so widely adhered to that they have acquired the status of customary international law, binding for those states too, if they have not expressly "opted out." This argument, coupled with UNCLOS's grant of authority to port/coastal states to ensure foreign vessel adherence to "other rules of international law" and "generally accepted international rules or standards," gives such states significant clout over vessels flagged by states that have not specifically adopted those rules and standards.43
There are many multilateral treaties that fill in the UNCLOS framework. These instruments are widely accepted and implemented, and they promote order and the free flow of commerce by prescribing universal standards for vessel construction, operation, and management, for the training and qualification of mariners, and the like. In accordance with the 1982 United Nations Convention on the Law of the Sea, they assign compliance responsibility to flag states.However, in the spirit of "trust but verify," they contain real enforcement mechanisms that enable coastal and port states to safeguard their vital interests, even in the face of occasionally lackadaisical flag-state oversight. Taken together, this "other" law of the sea serves a valuable purpose, the promotion of vessel safety and security and environmental stewardship. Statistics suggest that it is achieving its goals.
Libertarians—what are they concerned about? Libertarians are concerned about preserving the free market and free-market principles and opposing redistribution as economic policy. Clearly, this particular treaty, despite the 1994 revisions that were pointed to, still effectively establishes redistribution policies regarding the exploitation of sea-based assets—minerals, oil, whatever resources you would want to talk about." Doug Bandow of the Cato Institute has said that UNCLOS "embodies the most odious features of centralized planning."' And he reaffirmed that following the 1994 changes. He said, notwithstanding the 1994 revisions, UNCLOS "remains captive to its collectivist and redistributionist origins."10
Social conservatives—what are near and dear to their hearts? Preserving moral values and the moral standing of the United States. And once again, we come back to the question of the Law of the Sea Convention and the international institutions that it would create, as to whether they would behave consistendy with the highest aspirations humans are called to achieve. To put it mildly, the United Nations system is not a paragon of virtue. We have seen things like the "Oil for Food scandal;" we have seen things like U.N. peacekeepers exploiting women in African peacekeeping missions. We have seen the adoption of resolutions saying that Zionism is a form of racism. All of these are things that have been essential elements of the ongoing United Nations system of which this treaty is a part.
It should not surprise anybody that one of the most prominent social conservatives that ever served in the Senate, Senator Jesse Helms of North Carolina, took it as a personal responsibility to see that the United States did not join this Convention. He was successful during his tenure in doing that, and I think he made very compelling arguments regarding not just this particular institution, but also about the broader problems with the United Nations system as a whole.'"