Warm is the new cold: global warming, oil, UNCLOS Article 76, and how an Arctic Treaty might stop a new Cold War.

• Author: Carpenter, Brent

1. INTRODUCTION II. ARTICLE 76 A. Global Warming is Melting Arctic Ice, Making Development of the Region's Oil and Gas Feasible B. Overview of Article 76, its Claim Process, and Relevant UNCLOS Provisions C. If a Coastal State Fails the Test of Appurtenance, its Claim will also Fail D. The Pseudoscience of Article 76 E. Classification of Seafloor Highs 1. Scientific Classification of Seafloor Highs 2. Legal Classification of Seafloor Highs a. Definition of Oceanic Ridges b. Definition of Submarine Ridges c. Definition of Submarine Elevations III. ANALYSIS OF ARTICLE 76 CLAIMS A. Arctic Ocean Overview B. The Coastal States' Article 76 Claims and Potential Claims C. Classification of Alpha-Mendeleev and Lomonosov Ridges D. Classification of Yermak Plateau and Chukehi Cap E. The Commission has a Limited Role in the Success or Failure of Claims IV. INCREASED OIL AND GAS DEVELOPMENT WILL HAVE AN ADVERSE EFFECT ON THE ARCTIC V. THE ARCTIC'S EXISTING SOFT LAW AGREEMENTS ARE INSUFFICIENT PROTECTIONS AGAINST THE ADVERSE EFFECTS OF INCREASED OIL AND GAS DEVELOPMENT A. The AEPS is Inadequate Because of Lack of Funding and Authority B. The Arctic Council is Inadequate Because of its Focus on "Sustainable Development" VI. POSSIBLE PROTECTIONS AGAINST THE ADVERSE EFFECTS OF INCREASED ARCTIC OIL AND GAS DEVELOPMENT A. Common Heritage of Mankind B. The Antarctic Treaty System--South Pole Hard Law Protection VII. CONCLUSION I. INTRODUCTION

   In August 2007, two miniature Russian Federation (Russia) submarines dove two miles beneath the ice to the Arctic Ocean seabed, where one of them extended its mechanical arm and planted a titanium Russian flag, (1) claiming the North Pole as Russian territory. (2) The stunt brought international attention to a claim made less dramatically six years earlier. (3) At that time, Russia made the first submission to the United Nations Commission on the Limits of the Continental Shelf to establish the outer limits of its continental shelf under Article 76 of the United Nations Convention on the Law of the Sea (UNCLOS), (4) an international agreement that addresses all aspects of resources and uses of the world's oceans. (5) Russia claimed that two ridges in the Arctic Ocean, Lomonosov and Alpha-Mendeleev, are a "natural prolongation of its land territory." (6) In 2006, Norway made an Article 76 claim asserting that the Yermak Plateau is a natural prolongation of its land territory, thereby giving Norway sovereignty over the Western Nansen Basin of the Arctic Ocean. (7) Canada and Denmark are performing studies of Lomonsov Ridge--the same ridge claimed by Russia--for potential Article 76 claims. (8) The United States has not yet ratified UNCLOS, but the Senate was scheduled to consider ratification in 2008, and the country is considering an Article 76 claim that Chukchi Cap, a plateau off the Arctic coast of Alaska, is a natural prolongation of its land territory. (9) These ridges, plateaus, and caps extend hundreds of miles into, and in some cases traverse, the Arctic Ocean. (10) If Russia, Norway, Canada, Denmark, and the United States (the coastal States) can prove that these ridges, plateaus, and caps are natural prolongations of their land territories, they will gain sovereignty over seabed extending to the middle of the Arctic Ocean. (11)

   Why are the coastal States rushing to claim sovereignty over Arctic territory? Denmark has perhaps been the most frank about its intentions, with its Science and Technology Minister declaring that Arctic sovereignty would "give us access to oil and gas." (12) The United States Geological Survey (USGS) estimates that the Arctic region holds 14%-25% of the world's oil and gas reserves; however, these resources have been inaccessible until recently, when the Arctic ice melting and thinning caused by global warming made exploration feasible. (13)

   Increased oil and gas development will adversely affect the Arctic through increased oil spills and development infrastructure. (14) Oil spills are more likely in the Arctic because oil tankers are not built to withstand collisions with sea ice, which is becoming more mobile and unpredictable as the Arctic warms. (15) Oil spills are especially dangerous in the Arctic because of the region's cold temperatures, which decrease rates of oil decomposition, resulting in the elimination of wildlife habitats and feeding grounds affected by any spills. (16) Elimination of habitat and feeding grounds will have a profound effect on Arctic species, which rely on a short food chain that can be fatally disrupted by the loss of even a single species. (17) These adverse effects will be compounded by increased oil and gas development infrastructure, which will include an array of new support facilities on land, oil rigs at sea, on- and off-shore pipelines, and increased air, land, and sea transportation. (18) This infrastructure will interfere with wildlife feeding, breeding, rest, and migration. (19) The Arctic is, by its nature, an unusually vulnerable environment and global warming compounds this vulnerability. (20) The adverse effects of increased oil and gas exploration would even further aggravate the region's vulnerability. (21)

   Despite the region's fragility, the only protections afforded the Arctic are a collection of unrelated, nonbinding national and international agreements, and the Arctic Council, a voluntary organization of countries that border the Arctic Ocean. (22) The Arctic Council's goals are promotion of sustainable development and protection of the Arctic environment, but its regional agreements are "soft law"; that is, they are not legally binding. (23) Conversely, the Arctic's southern counterpart, Antarctica, is protected by the Antarctic Treaty System (ATS), a successful series of five "hard law" treaties that protect that region's similarly fragile environment with legally binding agreements. (24) In 1961, at the time of the ratification of the Antarctic Treaty, the world faced a predicament in Antarctica similar to the one that it faces in the Arctic today. (25) Seven countries had made territorial claims in Antarctica, a region rich in mineral resources. (26) The Antarctic Treaty resolved these territorial disputes with an "agreement to disagree," which froze the question of sovereignty for the duration of the treaty, and allowed States to focus on the region's preservation. (27) The world chose wisely then and this Comment will argue that it should do the same now in the Arctic.

   The overarching goal of this Comment is to examine in detail one particular, concrete result of global warming. Global warming is melting Arctic ice, making development of the region's substantial oil and gas reserves feasible. (28) Therefore, the coastal States are scrambling to grab as much Arctic territory as they can. (29) This Comment endeavors to demonstrate that Article 76 provides the legal means for the coastal States to gain sovereignty over vast areas of the Arctic. The consequential increase in oil and gas development will have an adverse effect on the region, and existing soft law agreements are insufficient to protect the Arctic from these adverse effects. The discussion will begin narrowly, with Part II interpreting Article 76 to arrive at a set of legal definitions that will facilitate evaluation of the viability of the coastal States' claims. Based on this interpretation, Part III will evaluate the coastal States' claims and potential claims and find that at least two of them are viable, meaning that those coastal States could gain sovereignty over vast areas of the Arctic. The discussion will then broaden, with Part IV illustrating the adverse effects increased oil and gas development would have on the Arctic, Part V examining the existing Arctic soft law agreements, and Part VI proposing possible solutions to the lack of Arctic protection. The Comment will conclude that the Arctic needs a hard law treaty similar to the ATS.

2. ARTICLE 76

   Russia, Canada, Denmark, Norway, and the United States seek to prove that certain morphological highs of the Arctic seafloor (seafloor highs), such as ridges, plateaus, and caps, are natural prolongations of their land territory under Article 76 of UNCLOS. (30) If the coastal States succeed in proving that these seafloor highs are natural prolongations of their land territory, then the coastal States can include those seafloor highs in their continental shelves. (31) These seafloor highs extend hundreds of miles into, and some even traverse, the Arctic Ocean. (32) Coastal States have full sovereignty over their continental shelves. (33) Therefore, if the coastal States are allowed to include these seafloor highs in their continental shelves, they will gain sovereignty over the seabed extending to the middle of the Arctic Ocean. (34) This sovereignty will, in turn, give the coastal States sovereignty over the Arctic's substantial oil and gas reserves, development of which is now becoming feasible because global warming is melting Arctic ice.

   This Part will begin with a brief overview of how global warming is facilitating increased oil and gas exploration in the Arctic. It will go on to provide an overview of Article 76, the legal means by which the coastal States seek to gain sovereignty over this oil-rich region. It will describe the four-step Article 76 continental shelf delineation process and will demonstrate that each coastal State's claim hinges upon step two of the process--the Test of Appurtenance. It will then interpret the Article 76 provisions that control the Test of Appurtenance. This interpretation will arrive at a set of legal definitions that will facilitate Part III's evaluation of the coastal States' claims.

   1. Global Warming is Melting Arctic Ice, Making Development of the Region's Oil and Gas Feasible

      The coastal States seek to establish sovereignty over the Arctic to gain control over and develop the region's significant oil and gas reserves. (35)...