The Race to the Arctic and International Law
August 13, 2007
...What’s going on? Two things: the polar ice cap is melting and energy prices are high. Because the ice is melting, the cost of extracting oil and gas beneath the arctic seabed is declining. No one knows how much oil and gas lies waiting there, but the U.S. Geological Survey estimates that a quarter of the world’s undiscovered oil and gas reserves are located in the arctic. Another source estimates that that they are worth $1 trillion.
...Probably one needs to look at Article 83:
1. The delimitation of the continental shelf between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice [which just describes the sources of international law], in order to achieve an equitable solution.
2. If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV.
3. Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation.
4. Where there is an agreement in force between the States concerned, questions relating to the delimitation of the continental shelf shall be determined in accordance with the provisions of that agreement.
This Article says: If two states share a continental shelf, and thus need to divide it, then they should … agree on a division! And if they can’t, they should try. No formulas or rules tell us how Canada, Denmark, and Russia should divide the Lomonosov Ridge, assuming this ridge is everyone’s continental shelf in the first place.
This leads to only one conclusion. The law is ambiguous. Much of the geology is ambiguous as well. So there are no clear answers under the treaty.
3. If the treaty is ambiguous, won’t the dispute be resolved by an international court?
As many people have noted, the Law of the Sea treaty creates a special Commission that has the authority to evaluate continental shelf claims. Less frequently noted, the Commission does not have the power to issue a legally binding judgment unless the claimant agrees with it. Here is Article 76, Section 8:
Information on the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured shall be submitted by the coastal State to the Commission on the Limits of the Continental Shelf set up under Annex II on the basis of equitable geographical representation. The Commission shall make recommendations to coastal States on matters related to the establishment of the outer limits of their continental shelf. The limits of the shelf established by a coastal State on the basis of these recommendations shall be final and binding.
So if the Commission rejects Russia’s claim, Russia can ignore the Commission’s decision without violating international law.
The Law of the Sea treaty also provides for adjudication in case the Commission’s decisions are rejected. There is a special Law of the Sea Tribunal; the International Court of Justice can also be used; and there are provisions for mandatory arbitration. However, international adjudication rarely resolves anything and, at the very least, it will be extremely slow. The biggest problem is that if Section 83 applies, as it appears to, then no tribunal has jurisdiction.
Under Article 297, states can opt out of mandatory adjudication for disputes involving Article 83. Russia has exercised this option. So has Canada. See here.
4. So what will happen then?
Whoever is stronger will prevail. To the extent that Russia’s oil and gas companies can explore the region and extract resources, and Russia’s navy can keep others out, then Russian sovereignty will be established. The U.S. and other countries might try to prevent this from happening by putting pressure on Russia. In the best case, the countries will negotiate a settlement that will reflect each country’s bargaining power. The worst case is probably not war, but friction, and this will make extraction of resources more dangerous and difficult, perhaps impossible. The China-Japan dispute over Senkaku Islands is an analogy.
5. How does the U.S. fit in? Should it ratify the Law of the Sea treaty?
The U.S. does not seem happy with Russia’s claim to the North Pole. The complication here is that the U.S. is not a party to the Law of the Sea Treaty.
If the U.S. sees Russian dominance over the Arctic as a threat to its interests, it can do two things. First, it can send forces into the area in order to establish an American presence; this would first require an expensive upgrading of naval capacities, and, I suspect, close cooperation with Canada, Norway, and Denmark—and that would probably involve settling many of the differences among these countries.
Second, it can ratify the Law of the Sea Treaty. This treaty is a lengthy document, which does a lot more than establish the rules for determining the location of the continental shelf. It also determines territorial waters in general, provides for the international exploitation of the seabed, provides some environmental controls, restricts how countries can treat ships on the high seas and in territorial waters, and much else. The United States government has no objection to this treaty, and in fact treats most of its provisions—those defining the territorial sea, for example—as customary international law.
[HOWEVER, THE U.S. GOVERNMENT HAS NOT ACKNOWLEDGED THAT THE 45 plus ENVIRONMENTAL ARTICLES, REGULATIONS, ANNEXES & PROTOCOLS OF THE UNCLOS DOES NOT REFLECT CUSTOMARY INTERNATIONAL LAW!! AND THEY SIGNIFICANTLY RESTRICT FREEDOM OF NAVIGATION WHICH THE CUSTOMARY INTERNATIONAL LAW OF WHICH IS CODIFIED BY THE UNCLOS!! HOWEVER, NEITHER THE U.S. GOVERNMENT, NOR THE COMMENTATOR WHO AUTHORED THIS ARTICLE ACKNOWLEDGE THIS REALITY.]
There are a few provisions that worry commentators, the most serious of which are (1) potential constraints on the ability of American forces to police the high seas, and (2) the creation of an international authority that will control seabed mining. American military and war-on-terror agents who board vessels suspected of terrorist aims could find themselves hauled up before an international court staffed with largely unsympathetic judges. And, the seabed mining authority conjures nightmares of UN-style corruption or (more likely) expensive ineffectuality.
Against these costs, the main benefits of ratification are that it would clarify what the rules are, and, more germane for present purposes, give the U.S. the ability to appoint someone to the continental shelf commission and have a seat at the table when Law of the Sea-related negotiations are taking place.
It seems likely that both the costs and the benefits are low. The United States is not going to be deprived of a seat at the table even if it is not a treaty member. Canada, Norway, and Denmark know that their claims against Russia are not worth much unless the United States takes their side. So a virtual or indirect seat will be found, in some way or another. But, at the least, it will be awkward for the United States to participate in negotiations if it does not ratify the treaty, and it certainly will not be able to appoint someone to the Continental Shelf Commission (though one of 21 votes probably makes no difference).
The main opposition in the U.S. Senate seems to be ideological rather than based on an assessment of America's interests. The Bush administration supports the treaty, as do many people who ordinarily are skeptical of international institutions.
[THIS CONCLUSION IS INACCURATE, BECAUSE IT DOES NOT REFLECT THE DYNAMIC NATURE OF INTERNATIONAL ENVIRONMENTAL LAW EVOLVING WITHIN A HOST OF DIFFERENT U.N. ENVIRONMENT PROGRAM-BASED MULTILATERAL ENVIRONMENTAL TREATIES, THE LAW OF WHICH WILL LIKELY BE CONSIDERED BY UNCLOS & OTHER INTERNATIONAL TRIBUNALS WHEN DECIDING ENVIRONMENTAL DISPUTES AMONG PARTIES UNDER THE UNCLOS.]
The article was Posted by EricPosner at 09:33 AM in International Law Permalink