The Arctic: an opportunity to cooperate and demonstrate statesmanship.

• Author: Corell, Hans

ABSTRACT

The Article discusses in four distinct parts disputes relating to maritime boundaries in the Arctic; "gaps" in the legal regime in the Arctic; environmental and security concerns; and the administration of the Arctic.

Regarding the first item, the Article maintains that the point of departure is that the United Nations Convention on the Law of the Sea applies also in the Arctic. Overlapping claims by the coastal states are perfectly legitimate and thus should not be dramatized. What matters is how such differences are resolved.

Referring to suggestions that there are "gaps" in the Arctic legal regime and that a new regime is needed, the Article asserts that this argumentation is misleading as UNCLOS already applies. However, the regime needs strengthening.

Several conclusions are presented concerning the environment and security, partly based on experiences from a conference organized by the Nordic Council of Ministers on September 9-10, 2008 at Ilulissat in Greenland: "Common Concern for the Arctic."

With respect to the administration of the Arctic, the Article maintains that the Arctic Council should be maintained and further developed as an indispensable tool for the coordination of policy decisions.

The Article concludes by suggesting that the Arctic actually offers an opportunity for states concerned and in particular the Arctic coastal states to demonstrate that they are able to cooperate actively in a constructive manner. One way of ascertaining that added political impetus is injected into the process would be to organize the 2011 Arctic Council meeting at the level of heads of state and government.

TABLE OF CONTENTS I. INTRODUCTION II. DISPUTES RELATING TO MARITIME BOUNDARIES III. "GAPS" IN THE LEGAL REGIME IV. ENVIRONMENTAL AND SECURITY CONCERNS V. THE ADMINISTRATION OF THE ARCTIC VI. CONCLUDING REMARKS I. INTRODUCTION

Distinguished participants,

First of all, I would like to thank the Vanderbilt Journal of Transnational Law for inviting me to address you on this occasion. The panel in which I am participating is to address boundary claims as well as environmental, social, and security concerns.

I have chosen to entitle my address The Arctic: An Opportunity to Cooperate and to Demonstrate Statesmanship. The purpose of choosing this title is not only to rebut the many ominous statements about upcoming conflicts relating to the Arctic but also to emphasize that the issues that undoubtedly emerge in the Arctic, not least because of climate change, actually offer an opportunity for the states concerned to demonstrate how such matters should be dealt with by responsible actors on the international arena. My address consists of four distinct parts: (1) disputes relating to maritime boundaries; (2) "gaps" in the legal regime; (3) environmental and security concerns; and (4) the administration of the Arctic. I will conclude with a few remarks as to why I believe that the Arctic actually offers an opportunity to cooperate and demonstrate statesmanship.

2. DISPUTES RELATING TO MARITIME BOUNDARIES

   The point of departure in discussing disputes relating to maritime boundaries in the Arctic is that the United Nations Convention on the Law of the Sea (UNCLOS) applies in the Arctic. This point has been made over and over again in the debate, and I do not intend to dwell upon it now. I refer to my earlier Reflections on the Possibilities and Limitations of a Binding Legal Regime. (1)

   It should also be noted that on May 28, 2008, the five coastal states bordering on the Arctic Ocean--Canada, Denmark, Norway, the Russian Federation, and the United States of America--adopted the Ilulissat Declaration. (2) The following quote is of particular interest in this context:

   Notably, the law of the sea provides for important rights and obligations concerning the delineation of the outer limits of the continental shelf, the protection of the marine environment, including ice-covered areas, freedom of navigation, marine scientific research, and other uses of the sea. We remain committed to this legal framework and to the orderly settlement of any possible overlapping claims. (3) The reason for the conspicuous absence of a clear reference to UNCLOS is of course that the U.S. has not yet ratified the Convention. (4) Despite the fact that both the Clinton and Bush administrations have advocated ratification of this treaty, the matter still lingers in the U.S. Senate. (5) Some of the arguments advanced against ratification of the treaty are so ignorant of the factual situation that they represent an almost surrealistic reading. (6)

   The latest news in this matter appears in the directive on Arctic Region Policy issued by President Bush on January 9, 2009 (the U.S Arctic Policy directive). (7) According to this directive, "[t]he Senate should act favorably on U.S. accession to [UNCLOS] promptly, to protect and advance U.S. interests, including with respect to the Arctic." (8) Let us hope that this question will now be moved forward in the Foreign Relations Committee of the Senate under the chairmanship of Senator John F. Kerry. In the meantime, the U.S. will no doubt apply UNCLOS anyway; most of the Convention is customary international law. (9)

   In a region like the Arctic Ocean, it is obvious that there might be overlapping claims with respect to maritime delimitation. These may relate to the territorial sea, the exclusive economic zone, or the continental shelf. Such overlapping claims are perfectly legitimate and should not be dramatized. On the contrary, claims of this nature can be expected as a natural consequence of the applicable law. What matters is how such differences are resolved. The first step is, of course, that the parties do their homework--collect and analyze relevant geographic and geomorphologic data. Thereafter the parties should compare those data and try to resolve any differences through negotiations. If the parties cannot settle the differences through negotiations, there is always the option of resorting to third party dispute settlement. The International Court of Justice has dealt with many such cases, (10) and the International Tribunal for the Law of the Sea is now also competent to deal with such matters. (11) This question is also addressed in the U.S Arctic Policy directive, which encourages the "peaceful resolution of disputes in the Arctic region." (12)

   In the past, I had the privilege of chairing the Swedish delegation in three negotiations relating to the maritime delimitation in the Baltic. I always think of these negotiations as a positive experience. The work was constructive and highly interesting. However, since I have developed my thinking on these issues in the past, notably the questions relating to the continental shelf, I do not intend to dwell further upon them now, particularly since other participants will address them. (13)

3. "GAPS" IN THE LEGAL REGIME

   I now come to the second part of my presentation: "gaps" in the legal regime. In January 2009, I had the privilege of co-chairing a conference organized by Arctic Frontiers at Tromso in Norway entitled "The Age of the Arctic." (14) A specific issue raised at this Conference, in particular by the World Wide Fund for Nature (WWF), was the question of "gaps" in the international governance and regulation of the marine Arctic. A distinction was made between "governance gaps" and "regulatory gaps." The former concept refers to gaps in the international institutional framework, including the absence of institutions or mechanisms at a global, regional, or sub-regional level, and inconsistent mandates of existing organizations and mechanisms. The latter refers to substantive and/or geographical gaps in the international legal framework--issues which are currently unregulated or insufficiently regulated at a global, regional, or sub-regional level. At the Conference, reference was made to an Overview and Gap Analysis that the WWF had commissioned. (15)

   Based on this analysis, representatives of WWF challenged the Ilulissat Declaration and argued that we need a "new legal regime" for the Arctic. With reference to my earlier writings in this matter, it will come as no surprise that I find this argumentation confusing. Also, as I will explain further, I do not agree with the conclusion that the Arctic Council in its present form should be viewed as creating a "gap." However, even if I do not agree with some of the conclusions, the Overview and Gap Analysis is nevertheless an excellent paper on a very complex subject. I believe that WWF and the authors of the analysis should be commended for this valuable contribution to a very important discussion, and I definitely recommend that all concerned study the analysis.

   As I have maintained in the past, there is already a binding legal regime that applies in the Arctic, namely UNCLOS. Rather than focusing on new regimes, we should concentrate our resources on working with what we have and examining whether the present legal regime is sufficient. I believe that the conclusion today is that it is not...