Revision of U.S. ratification of UNCLOS would help resolve disputes with Russia in Arctic from Tue, 02/08/2022 - 14:57
Tension between Russia and other Arctic nations will remain high as they continue to compete for Arctic territory. Maintaining UNCLOS as a viable legal framework for settling Arctic territorial claims should help avert potential confrontations between Russia and other UNCLOS members.
Quicktabs: Arguments
The general discourse on the Arctic has focused on the risks of military escalation. Though security is a relevant factor when discussing Arctic issues, the region is unlikely to witness military escalation. U.S. Special Representative for the Arctic, Admiral Robert J. Papp, Jr., recent remarks suggest that Russia is not militarizing the Arctic are insightful. Papp noted that the U.S. does not believe Russia is acting unreasonably as the melting Arctic is driving increased maritime traffic in Russia’s waterways.
The Arctic region has tremendous global potential, if not for its resources, but for the environmental and ecological impact of its changing landscape. The nature of the environment in the Arctic favors collaboration rather than competition. The rhetoric may at times appear aggressive in nature, however Arctic nations, including Russia, understand that in order to reap the benefits of the Arctic, cooperation will be crucial. In a global environment marked by instability, conflict and a rise in mistrust, the Arctic region might prove to be a region where trust can be rebuilt and cooperation re-established between global powers.
U.S. freedom of navigation interests in the Arctic would be bolstered by joining UNCLOS. Both Russia and Canada have maritime claims in the Arctic that are inconsistent with the rules contained in the Convention. Russia37 and Canada38 draw excessive straight baselines in the Arctic and restrict the right of transit passage in various international straits in the Arctic, including the Northeast Passage, the Northwest Passage and vari- ous straits located within Russia’s Northern Sea Route (NSR)—the Demitri, Laptev and Sannikov Straits. Russia’s straight baselines closing the NSR straits and Canada’s straight baselines around its Arctic Islands do not meet the legal criteria contained in Article 7 of the Convention.39 According to UNCLOS Article 5, the correct baseline for these areas is the low-water line. UNCLOS Article 38 also provides that the right of transit pas- sage through international straits cannot be suspended or impeded by the bordering States. Use of straight baselines by Russia and Canada to close these international straits is therefore inconsistent with the Convention. Furthermore, under UNCLOS Article 8(2), all nations enjoy at least the right of innocent passage in areas within newly drawn straight baselines. The United States has diplomatically protested and operationally challenged these excessive straight baseline claims under the U.S. Freedom of Navigation Program, citing the provisions of UNCLOS and customary international law.40 However, the U.S. legal position would be on better footing if the United States was a party to the Convention.
Players in the Arctic groups identified the need for building Arctic partnerships and focusing on a “whole of government” approach in order to build Arctic Domain Awareness (ADA), with an emphasis on the vastness of the maritime passages and respond to crises. Players in the Arctic groups asserted that the United States should take an active leadership role in Arctic policies, issues, and development. Players further asserted that UNCLOS ratification would facilitate establishing the U.S. as a leader in Arctic issues including ADA. Conversely, continued non- ratification of UNCLOS could result in Russia emerging as the dominant power in the region, potentially claiming sovereignty of half the Arctic basin, and assuming a leadership role concerning Arctic issues (Schlauder, 2007). Overall, the United States role in the Arctic could be marginalized if actions, policies, and investments fail to keep pace with economic development in the Arctic.
The geopolitics of the twenty-first century will be different from the days of empire and conflict of the nineteenth and twentieth. The increased accessibility of the Arctic, with its energy and mineral resources, new fisheries, shortened sea routes, and access to rivers flowing north to the Arctic, is pushing Russia to become a maritime state. As it progresses, Russia will no longer be susceptible to geographic isolation or encirclement. At the same time, these changes will require Russia to become more closely integrated into global commercial and financial networks, to welcome international business involvement, and to par- ticipate in international bodies that harmonize international shipping, safety, security, and environmental regulations.
These changes are already opening the way for a new geostrategy that has its roots in the geopolitical thinking of the twentieth century but addresses the changes that are turning the Arctic from an afterthought to a central front in the new geopolitical view of the world. In this new geostrategy, Russia assumes a role as one of the maritime powers of the “rimland,” and the Russian Arctic becomes a new geographical pivot among the great powers. Decades will pass before Russia can fully make the shift from Eurasian heartland to Arctic coastal state, but it is already integrating policies toward this end into the strategies of its national security council and federal ministries, and it shows every indication of expecting to seize its future seat among the major maritime states of the world.
Foreign Policy. In seeking to establish the Arctic as a “zone of peace and cooperation,” the Russian Arctic policy emphasizes mutually beneficial bilateral and multilateral cooperation among Russia and other Arctic states on the basis of in- ternational treaties and agreements to which Russia is a party. Underlying all Russian policies toward the Arctic is support for regional collaboration in the Arctic and commitment to UNCLOS and multilateral organizations and approaches, including the International Maritime Organization, the Arctic Council, and the five Arctic coastal states, who met in Ilulissat, Greenland, in 2008 to issue their declaration on management of the Arctic. The key foreign policy point in the Ilulissat Declaration—that the Arctic coastal states will resolve disputes peacefully in line with the law of the sea—is consistent with the Russian Arctic policy.22
As a maritime state with interests in sustaining freedom of navigation on a global stage and in maintaining safety and security in its offshore waters, Russia in the twenty-first century will increasingly share interests long held by the United States and other ocean powers. Russia’s interests in its Arctic will foster a maritime policy that embraces coastal resource management and freedom of international navigation, though likely with a greater emphasis on offshoresovereignty and less on distant-water power projection. Strategic security policy will be a continuation of past and current policy, the U.S.-Russian maritime boundary is already resolved de facto (pending official approval of the boundary treaty by the Russian Duma), and current and potential territorial disputes between Russia and U.S. allies Norway, Denmark, and Canada are likely to be resolved through peaceful means. The United States and Russia also have an agreement that maritime-boundary and navigation disputes will be resolved diplomatically rather than by resort to arms.32 The conflicts that do arise will be focused on matters of commercial navigation, boundary delimitation, fisheries management, energy development, environmental protection, and ocean science, all the subjects of international diplomacy and regulatory enforcement rather than warfare.
The opening of the Arctic in the twenty-first century will give Russia the oppor- tunity to develop and grow as a maritime power, first in the Arctic and eventually wherever its merchant fleet carries Russian goods and returns with foreign products. This transformation of the threatening “heartland” of Mackinder and Spykman into a member of the maritime powers will require extensive effort to bring the new maritime Russia into the collaborations and partnerships of other oceangoing states. Commitment to the rule of law, shared Arctic domain awareness, joint security and safety operations, and collaboration in developing policies for the future can maintain the Arctic as a region of peace even while the coastal states maintain naval and law enforcement capabilities in the region.
The best course is to address Russia’s evolving maritime role with an Arctic regional maritime partnership based on the model of the Global Maritime Partnership initiative, expanded to address civilian interests in climate, resources, science, and conservation. The American objective should be to work collab- oratively to resolve disputes over continental shelf and fishery claims, negotiate a regional high-seas fisheries management plan, develop a regional Arctic maritime transportation plan, and coordinate security and safety policies on the ocean and ice surface and in the air, in line with the U.S. Arctic Policy and the sea services’ “Cooperative Strategy for 21st Century Seapower."
Russia’s Arctic encompasses the northern seas, islands, continental shelf, and the coast of the Eurasian continent; in addition, it is closely linked to the vast watershed that flows to the sea. The Arctic coast of Russia spans from its border with Norway on the Kola Peninsula eastward to the Bering Strait. Along the coast is a wide continental shelf, running eastward from the Barents Sea in the west to the Kara Sea, the Laptev Sea, the East Siberian Sea, and the Chukchi Sea. Of these seas, only the Barents is largely ice-free throughout the year, a result of the Gulf Stream returning there to the Arctic. The continental shelf extends northward far beyond the two-hundred-nautical-mile exclusive economic zone (EEZ). When free of ice, the coastline along the Arctic extends almost forty thousand kilometers (including the coasts of the northern islands), which must be patrolled and protected. The Russian Arctic coast drains a watershed of thir- teen million square kilometers, equal to about three-quarters of the total land area of Russia and an area larger than any country on earth save Russia itself.
Russia has long been a major producer of oil and gas from land-based re- sources. Now the resources of the Arctic continental shelf are drawing increasing attention. Deposits in the Barents Sea are already being developed, with oth- er known deposits in both the Barents and the Kara seas being eyed for future exploitation. Still more energy resources are awaiting discovery. In 2008, the U.S. Geological Survey, estimating the as-yet-undiscovered resources of oil and gas in the Arctic, projected over 60 percent of the total resources (equivalent to about 412 billion barrels of oil) to be located in Russian territory, with all but a very small percentage on shore or inside the EEZ.6 The area of greatest poten- tial is in the Kara Sea basin, with smaller, yet still respectable, prospects in the Laptev and East Siberian seas.
In defense and protection of the border and resource areas, Russia continues to bolster military presence and capability in the Arctic. In addition to the Northern Fleet, whose naval military capabilities run the full gamut of surface and subsurface operations, Moscow has created the Federal Security Service Coastal Border Guard.67 Additional activities in the border and coastal areas include development of control infrastructure and equipment upgrades for the border guard, implementation of an integrated oceanic monitoring system for surface vessels, and a number of equipment and weapons testing and deployment initiatives.68 Many of these initiatives demonstrate presence and resolve, such as the 2007 launch of cruise missiles over the Arctic, additional Northern Fleet exercises in 2008, and the resumption of Arctic aerial and surface patrols not seen since the end of the Cold War.69 While many of these actions may appear provocative, Russia has also asserted its commitment to working within the framework of international law, partici- pated actively in the Arctic Council and other international bodies, and expressed interest in partnership in the region, particularly in the area of SAR.70 In the aggregate, Russia emerges as among the most prepared of Arctic nations for the opportunities available and may well be poised to gain early regional commercial and military supremacy with the goal of similar successes in the international political arena.71 Russian commitment to mul- tilateral venues, along with the demonstrated attitudes of other Arctic nations, presents the opportunity for U.S. partnership in the region.
Both Canada and the Russian Federation have enacted regulations that the United States believes amount to unwarranted restrictions on the right of transit passage. Canada, for example, imposed a mandatory ship reporting and vessel traffic service system (NORDREG) that governs transit through the Northwest Passage.29 NORDREG covers Canada’s EEZ and the several Northwest Passage routes in the Canadian Arctic Archipelago.30 Canada specifically cites UNCLOS Article 234 to justify NORDREG, asserting that the reporting requirements are to prevent and reduce marine pollution from vessels in the delicate Arctic waters.31 Similarly, the Russian Federation has historically limited transit passage in the Northern Sea Route,32 using UNCLOS Article 234 to justify the limitations,33 and has recently implemented more extensive unilateral regulations to ensure shipping safety and environmental protection.34 With receding amounts of ice for significant portions of the year, whether the Northwest Passage or the Northern Sea Route meets Article 234’s climatic requirements for ice- covered areas is debatable.35
Under UNCLOS, coastal states seeking to prescribe sea-lanes and traffic separation schemes in straits used for international navigation must receive approval by a “competent international organization” prior to adoption.36 The International Maritime Organization (IMO) fills this role. The United States is working with other Arctic nations through the IMO to create a mandatory “Polar Code” that will cover all matters relevant to ships operating in both Arctic waters and the waters surrounding Antarctica.37 The IMO recently announced that the Polar Code will be operational as early as 2015 and will be implemented by 2016.38 The extent to which the Polar Code reconciles Russian and Canadian interests in regulating the Northern Sea Route and Northwest Passage with freedom of navigation interests will be critical.