LEFT OUT IN THE COLD: CONTEMPORARY POLICY AND INTERNATIONAL PROPERTY ISSUES IN THE ARCTIC CIRCLE.

• Author: Hunt, Thomas

1. INTRODUCTION

   The United Nations Convention on the Law of the Sea (UNCLOS) purports to govern the territorial rules of the Arctic Ocean. (1) Yet because of the possible existence of trillions of dollars' worth of natural gas and oil resources buried beneath the ocean's icy surface, territorial claims in the Arctic have been hotly contested over the years by the five "Arctic powers": the United States, Canada, the Russian Federation, Norway, and Denmark. (2) Since climate change has continued to melt the polar ice caps at a steady rate, the resources under the ice will soon become far more accessible. (3) As a result, territorial posturing in the Arctic by these five countries, especially Russia, is coming to a perceptible zenith in 2017. (4) This presents policymakers with a number of unique challenges; because despite the phenomenon's close resemblance to the resource and land scrambles characteristic of nineteenth century imperialism, the issue of climate change, i.e., the culpable accelerator of this particular scramble, is an entirely contemporary problem. (5) The United States has recently revamped efforts to catch up with Russia in the area of Arctic exploration, but it remains to be seen how quickly the U.S. government will be able to implement those efforts into actual results. (6)

   This Note explores the theoretical and practical validity, and feasibility of international sovereign claims in the Arctic region, and the significant policy considerations related thereto. (7) Part II will discuss the history of such claims over the years as well as their validation, or lack thereof, by the United Nations Convention on the Law of the Sea. (8) Part III will describe current U.S. and Russian policies in the Arctic, with some emphasis placed on the most controversial issues. (9) Part IV will analyze the possible ways to resolve international tension in the Arctic Circle. (10) Finally, Part V will conclude this Note by emphasizing the importance of international cooperation in this region and the necessity of worldwide accessibility to alternative sources of energy. (11)

2. HISTORY

   1. The First Claims in the Arctic: The 1910s and '20s

      1. Canada

         There are five nations with coastlines in the Arctic Circle, namely Canada, the United States, Russia, Norway, and Denmark. (12) Canada's claims to the Arctic are deeply rooted, dating back to nineteenth century English explorers and further exploration by Canada's own navigators after the nation's confederation in 1867. (13) These roots culminated in a Canadian proclamation in 1925 that its government owned all of the land between its land borders and the North Pole. (14) This broad-sweeping method of divvying up the Arctic Ocean was known as "The Sector Principle," an idea which originated in Canada. (15) The Canadians continued this assertiveness into the 1950s, when their government apparently purposefully relocated various Inuit people to the high Arctic for the sole purpose of reinforcing their sovereignty there. (16) Canada has perpetuated these efforts, both strategic and symbolic, to assert its presence and sovereignty in the Arctic over the course of history. (17)

      2. Soviet Union

         The Soviet Union originally followed Canada's sector theory of territorial sovereignty, laying claim to an analogous "sector" on its side of the globe, from the northern edge of its land borders to the North Pole. (18) Soon military strategy in the Arctic became an important focal point for the United States and Canada due to perceived Soviet threats. (19) The Arctic became especially strategic territory during the Cold War as a result of the unavoidable fact that the closest air distance between the United States and Soviet Union was across the Arctic Circle. (20) The Soviet Union expressed support for the proposition that Canada owned complete control over its Northwest Passage, and agreed with Canada's desire to adopt an international "straight baseline" rule, a move which could in turn legitimize and expand the Soviets' own claims over the entire "Northeast Passage." (21) The International Court of Justice (ICJ) actually upheld this customary straight baseline rule in the landmark Anglo-Norwegian Fisheries case. (22)

      3. United States

         The Arctic Ocean is nearly 1.5 times the size of the United States. (23) Ironically, the United States entered the Arctic power circle via its 1867 Alaska purchase as a result of Russia's strategic maneuvering. (24) Despite its ownership of adjacent territory in Alaska, the U.S. government remained relatively silent on Arctic issues until after World War II, when President Harry Truman declared that the United States owned all of the resources on its Continental Shelf (the Truman Declaration). (25) At that time, however, the primary concern for the United States was the fear of a Soviet nuclear attack, with commercial interests generally thought of as a potential future concern. (26) The United States historically opposed the internationally accepted "straight baseline" rule due to its own desire to expand its Arctic reach beyond merely the seas adjacent to Alaska. (27) In order to prevent Soviet nuclear submarines from trespassing into the Northwest passage, the United States preferred to exercise control over the situation with its own military rather than rely on Canada's. (28)

   2. The Dawn of "International Property Law" in the Arctic

      1. UNCLOS

         Notwithstanding any nation's historical claims, the default governing instrument for international maritime disputes, a category under which territorial disputes in the Arctic Ocean apparently fall, is UNCLOS. (29) Traditionally, the high seas have been considered res communis, due to lack of ability and incentive for nations to stake exclusive title to them. (30) Since the advent of the modern nation state, however, governments have attempted to claim at least the area immediately adjacent to their shorelines, an idea which UNCLOS has codified. (31) The Third United Nations Convention on the Law of the Sea effectively extended territorial control to 200 miles with the Exclusive Economic Zone ("EEZ"), which gave nations exclusive control over the natural resources located 200 miles or fewer from their shorelines. (32) Additionally, UNCLOS granted states sovereign rights over the territory which can be said to be part of their continental shelves. (33) All disputes on these matters must be settled by the disputing states' choice of forum--either the 1CJ, International Tribunal on the Law of the Sea (ITLS), or another qualifying arbitral tribunal. (34)

      2. The Ilulissat Declaration

         The primary issue with UNCLOS is that one of the world's biggest players, the United States, has not ratified the treaty. (35) All five relevant Arctic nations, however, affirmed via the 2008 Ilulissat Declaration (Ilulissat) that they will follow all current UNCLOS rules and procedure in the region should any disputes arise. (36) Unfortunately, before the passing of even a single decade, Russia has defied the declaration by claiming 463,000 square miles of territory, despite the United Nations' prior rejection of a similar Russian claim in 2002. (37) Disputes over Arctic territory have not completely subsided despite the intended calming effects of UNCLOS and Ilulissat. (38) Even if all five Arctic nations do follow Ilulissat, this agreed-upon solution may preclude more peaceful possibilities, like the solution to which the international community has agreed in the Antarctic. (39)

3. FACTS

   1. Reality of Climate Change and its Effects

      1. Climate Change

         Arctic ice has been rapidly shrinking in recent history, reaching its sixth lowest size in recorded history in 2014. (40) A majority of scientists suggest that climate change has affected rising sea levels, melting glaciers and melting sea ice in the Arctic region. (41) The causes of this climate change are subject to some dispute in scientific and political communities. (42) Nonetheless, whatever scientific theory about climate change one chooses to accept, there is no doubt at all about the tangible changes occurring in the Arctic Circle at this time. (43) These changes could have very damaging effects on both the indigenous peoples of the Arctic and island nations across the world. (44) To make matters worse, studies have shown that the effects of pollution, too, can be aggravated in the Arctic Circle. (45)

      2. Oil and Natural Gas

         The melting of Arctic sea ice, however, has not escaped the attention of Arctic nations or stakeholders in the oil and gas industries, as the possibilities for offshore drilling could be even more numerous and easier to execute in the thick ice's absence. (46) The ability to control offshore drilling lies first and foremost with national governments, who grant and deny leases to private actors seeking drilling opportunities (47) Because estimates state that nearly a quarter of the world's remaining fossil fuel reserves exists underneath the Arctic ice, governmental actions in the region are as significant and strategic as ever (48) On the other hand, initiatives to discover these new fossil fuels stand in direct contradiction to the U.S. Government's vehement desire to procure a more sustainable, cleaner form of energy. (49) Still, the fossil fuel industry remains undeniably important to both the Russian and Alaskan economies. (50) The prospect of easier shipping routes and increased activity in the high Arctic Circle also could yield countless entrepreneurial opportunities for Canadians, Americans, or anyone else interested in operating in the region. (51)

   2. Russia

      1. Russian Interests

         More symbolically than realistically, Russia re-staked its claim to the Arctic seabed in 2007 by placing a Russian flag on the ocean floor with a robotic instrument, and has otherwise generally indicated a desire to have a large presence in the Arctic. (52) Whether a particular claim is validly Russian or European is incredibly significant to firms interested in...