Thin ice, shifting geopolitics: the legal implications of Arctic ice melt.

• Author: Mendez, Tessa

INTRODUCTION

Navigators searched for a commercial sea route via the Arctic Sea for centuries. In North America, this route was historically known as the Northwest Passage, and generations of merchants and seamen sought the route because the existence of such a passage would dramatically cut travel time and costs. (1) Heavy ice in the Arctic Ocean once prevented utilization of both the Northwest Passage over the American continent and the Northern Sea Route over the Eurasian continent. Today, this may be changing. Arctic ice naturally recedes every summer when the region is exposed to long hours of sunlight, and the melting in recent years has been considerably greater than historical averages. Due to rising global temperatures, scientists project that the Arctic sea routes will open up to seasonal shipping within the century. (2)

The melting ice will also facilitate access to the Arctic's lucrative natural resources. Not only does the Arctic seabed have rich mineral deposits, but geologists also believe large quantities of oil and natural gas lie beneath the Arctic seabed. (3) As one expert has aptly noted, "[i]ronically, the great melt is likely to yield more of the very commodities that precipitated it: fossil fuels." (4) The growing pressure to discover diminishing supplies of oil and natural gas will likely entice oil and gas companies to extract the resources that are predicted lie under the Arctic sea.

Due to the hostility of the region, the Arctic expanse has been largely ignored or forgotten throughout modern history. Because Arctic sovereignty has never been completely determined or agreed upon, rights to the opening Arctic passageways as well as the natural resources located under the water are sure to be contested in years to come. (5) As a consequence, questions regarding the delineation of territorial sovereignty that are largely settled in other areas of the world remain contested in the Arctic. As states realize the value of the Arctic, they start to assert and enforce their privileged claims of dominion. Within the last few years, the international struggle for control of the Arctic's natural resources, navigational capacity, and military opportunities have dramatically increased. (6)

International law has a vital role to play in resolving the unfolding dispute. The provisions and definitions within the United Nations Convention on the Law of Sea (7) ("UNCLOS" or "the Convention") provide critical guidance for Arctic nations as they attempt to assert sovereignty claims. UNCLOS also establishes dispute resolution mechanisms that could be used to determine ownership of Arctic territory if countries cannot negotiate acceptable decisions. Moreover, although not yet ratified by the United States, this Convention is largely seen as a codification of customary international law. Therefore, UNCLOS should be regarded as a primary resource for resolution of Arctic disagreements.

Sovereignty disputes reflect the geopolitical realities of the region. Geopolitics is defined as the study of the influence of geography, history, and social science with reference to spatial politics and patterns at various scales. (8) The geopolitical balance of power in the Arctic is radically changing as the geography of the region undergoes massive transformation. Arctic geography has increasing economic and strategic significance because the resources in the area are becoming commercially available. Geopolitics, because it is preoccupied with borders, resources, flows, territories, and identities, can provide a pathway for critical analysis of future disputes. (9) Moreover, the interrelationship between power and geography can be used as a tool to understand and anticipated trends in the international law of the region. The changes in the Arctic have created a unique situation, and the analysis that follows will provide an in-depth review of the various legal claims.

This paper is divided into six parts. Part I gives background information about how fast the ice is melting. The pace of the melt is important because visible signs of warming pressures countries to assert claims on resources and navigable regions. Part II highlights the importance of northern sea routes and is followed by Part III outlining the mineral wealth in the region. Because mining and travel in the Arctic will be both expensive and hazardous even after significant portions of sea ice have melted, states seek to understand the dangers of the region to better appreciate the costs and benefits of development. Part IV analyzes the law of continental shelves and how countries are already utilizing this law to claim the sea floor. Part V examines the laws that could affect the Northwest Passage and the international use of the Arctic ocean over North America. Part VI concludes by outlining potential resolutions to the Arctic dispute and projections about the future.

1. HOW QUICKLY IS ARCTIC ICE MELTING?

   Global warming is most dramatic in the Arctic. (10) In Alaska and western Canada, average winter temperatures have increased by as much as seven degrees Fahrenheit in the past 60 years. (11) Scientists agree that atmospheric warming will continue for years to come, and that this warming will significantly affect ice coverage in the Arctic. Many experts believe the particularly sharp increase in warming and melting throughout the last few decades can be attributed to both human and natural causes. (12) Because ice and snow are white, they have what is known as a "high albedo" and reflect most solar energy. (13) Albedo is a measure of how strongly an object reflects light from sources such as the sun. Water is darker and thus has a "low albedo" that absorbs most solar radiation. This creates a condition known as a "positive feedback loop" and, as a consequence, the Arctic region essentially amplifies any sort of warming trend. (14) The ocean exposed by melting ice soaks up more heat, which melts more ice and exposes more sea. (15) In the most extreme scenario, the positive feedback loop could cause extreme deterioration of Arctic sea ice, leaving the Arctic Ocean more like the Baltic Sea, covered by only a thin layer of seasonal ice in the winter. (16) At the current pace of retreat, trans-Arctic voyages could be possible within the next five to ten years, but it remains extremely difficult to make an accurate prediction. (17)

   Arctic ice is melting at a much faster rate than scientists originally projected. According to satellite images from the European Space Agency, the year 2007 showed the lowest Arctic sea ice levels on record. (18) The ice was so sparse that, for the first time in recorded history, the Northwest Passage was fully clear of ice. (19) While the Northern Sea Route, a similar sea passage over the Siberian coast, remained blocked by a large mass of ice, the Northern Sea Route is predicted to open at approximately the same time as the Northwest Passage. (20) Experts at the National Snow and Ice Data Center (NSIDC) in Boulder, Colorado, noted that this significant transformation in Arctic geography occurred 30 years ahead of what had been predicted. (21) Scientists are exploring several theories that may explain the mismatch between observations and climate models. The models may have assumed sea ice levels to be thicker than they actually are, they may lack a key dynamic in ocean circulation patterns, or they may underestimate the effects of the feedback loop. (22)

   Anthropogenic climate change will continue to affect the geography of the Arctic. Because geography shapes political power, the human struggle over borders, space, and authority in the Arctic will only increase in years to come. (23) As the physical landscape of the Arctic shifts, the landscape of human control shifts too. Not surprisingly, Arctic countries are scrambling to exert control over this potentially critical region.

2. WHY DO NORTHERN SEA ROUTES MATTER?

   Northern sea routes provide economic, strategic, and political advantages. This section will analyze how an ice free Arctic tempts international shippers and traders with the promise of large cost reductions. It will also examine some of the concerns associated with shipping in this delicate and dangerous region. The Northern Sea Route and the Northwest Passage could assist international trade by cutting existing transit times by days, and would save shipping companies thousands of miles in travel. (24) The current route from Rotterdam and Yokohama through the Suez Canal stretches 11,200 nautical miles. (25) The Northern Sea Route could reduce the sailing distance to only 6,500 nautical miles, saving more than 40 percent. (26) Likewise, the Northwest Passage could cut a voyage from Seattle to Rotterdam by 2,000 nautical miles, making it nearly 25 percent shorter than the current route, through the Panama Canal. (27)

   International business would also be profoundly affected by Arctic ice melt. Taking into account canal fees, fuel costs, and other variables that determine freight rates, the shortcuts over the top of the world could cut the cost of a single voyage of a large container ship by as much as 20 percent, from approximately $17.5 million to $14 million. (28) The savings would be even greater for the megaships that cannot fit through the Panama and Suez Canals and must currently sail around the Cape of Good Hope and Cape Horn. (29) Moreover, these Arctic routes would also allow commercial and military vessels to avoid sailing through politically unstable Middle Eastern waters and the pirate plagued waters off the coast of Somalia and in the South China Sea. (30)

   These advantages have led many leaders and intellectuals to reconsider the value of the Arctic; an inherently geopolitical process. Geopoliticians argue that the world is actively 'spacialized,' divided up, labeled, and sorted out into a hierarchy of places of greater and lesser importance. (31) States then express their sovereignty by enforcing...