Breaking the Ice: Emerging Legal Issues in Arctic Sovereignty

In August 2007, Russia garnered international attention by sending two mini-submarines to plant a Russian flag in the deep seabed near the North Pole.1 The gesture symbolized Russia's interest in the Arctic,2 though many commentators have dismissed the act as legally inconsequential.3 The journey is believed to have been the first submarine mission to the North Pole seabed.4 During the excursion, scientists collected geological samples in the hopes of finding further support for Russia's pending claim that a large portion of the Arctic seabed is an extension of its continental shelf.5 Despite skepticism over the legal implications of Russia's mission, surrounding nations were quick to respond. In mid-August 2007, Canadian Prime Minister Stephen Harper toured the Arctic and reaffirmed a recent commitment to expand Canada's military presence there.6 Around the same time, Denmark launched a month-long expedition to the Arctic.7 Like Russia, Denmark hopes to collect evidence that will support a claim that the continental shelf of Greenland-a province of Denmark-extends to the North Pole.8 The United States has been slower to react, but is considering building two new polar icebreakers to traverse the Arctic.9 Norway, the remaining nation that borders the Arctic, did not immediately respond to Russia's act, perhaps because it has previously admitted that its continental shelf does not reach the North Pole.10 However, Norway is the only other country (besides Russia) that has filed a legal claim to extend its continental shelf into a portion of the Arctic Ocean.11 Drawing proper boundaries is important because, as the world grows warmer, the Arctic Ocean, which is now frozen for more than half the year, will become increasingly valuable in terms of natural resources, commerce, and military activity. The relevant legal regime to handle territorial disputes in the Arctic is the United Nations Convention on the Law of the Sea ("UNCLOS").12 However, the language of UNCLOS is ambiguous about how to decide the overlapping claims that are likely to develop in the Arctic. Furthermore, all of the Arctic nations, except Norway, have opted out of binding dispute resolution for such claims under UNCLOS. Accordingly, UNCLOS is unsuitable for resolving disputes surrounding the North Pole. With countries jockeying for position, the struggle for control of the Arctic has started to unfold. This Comment will discuss the legal issues that the international community will likely confront in the coming decades with respect to the Arctic. I find that UNCLOS, the current legal regime, will prove inadequate for resolving the overlapping claims to the Arctic that are sure to develop in upcoming years. I next consider the applicability of other traditional legal theories about the continental shelf, including geological circumstances, historical practice, the equidistance principle, coastline proportionality, landmass proportionality, and economic conditions. I conclude that overlapping continental shelf claims would be best resolved by a multilateral agreement similar to the Antarctic Treaty System. Section I provides background information on Arctic geography and traces the development of early maritime law and the freedom-of-the-seas doctrine. It goes on to discuss President Truman's 1945 Proclamation on the Continental Shelf and the international community's response prior to implementation of UNCLOS. section II gives an overview of the important and relevant provisions of UNCLOS, including sovereignty limits, navigation provisions, regulations of the deep seabed, and methods of dispute resolution. Section III applies UNCLOS to the two current continental shelf disputes in the Arctic and argues that UNCLOS is inadequate to resolve these disputes and any others that might arise in that region. Section IV examines the viability of alternative legal claims of title to the Arctic. Section V posits that one acceptable solution would be to model an international Arctic agreement after the Antarctic Treaty System. …