Featuring
Michael Byers
University of British Columbia
Introduction by David Speedie:
It is entirely appropriate that the third, and last, set of papers on U.S.–Russia relations—following a first series on arms control issues and a second group on Afghanistan/Central Asia/NATO—should focus on the Arctic region, and that they should appear just as the Copenhagen UN summit on climate change is under way.
In a myriad of security, commercial, and environmental issues concerning the Arctic, our North American and Russian scholars represented here agree that climate change is the paramount challenge. As Byers notes: "Climate change is more apparent in the Arctic than anywhere else on Earth… An increase in average annual temperature of just a fraction of one degree can transform vast areas of white sea-ice into dark ocean water… A complete, late-summer melt-out of Arctic sea ice could occur as early as 2013." In this context, it is ironic that the Arctic is also rich in hydrocarbon resources, and there have been some thirty years of competition over extraction of oil and natural gas in the region, from Alaska to Norway.
Competition and cooperation go hand-in-hand for the countries bordering the Arctic Ocean. On the one hand, the melting ice will open up new shipping channels to transport oil and gas from and through the Arctic; on the other, there have been competing claims for portions of the Arctic territory, with Russia perhaps in the vanguard of articulating and enacting claims of "national interest." As Morozov argues, Russia has also taken a lead in advancing prospects for international cooperation in the Arctic, based on an internationally agreed-upon formalization of boundaries in the region, based on the 1982 UN Convention on the Law of the Sea (which the United States has yet to ratify).
On the whole, we may see a "glass half-full" prognosis for this critical region, with the balance tipping in favor of cooperation rather than competition. Byers describes a "web of international law that extends across the Arctic," and which even extends to a joint U.S.-Russia notification agreement on military flyovers. More generically, the 1996 Arctic Council has "institutionalized cooperation" on non-military (especially environmental) matters among the eight Arctic countries"—a lesson, perhaps, not to be lost in Copenhagen.
—David Speedie, Director, U.S. Global Engagement Program
The other paper in this set is:
The Arctic: The Next "Hot Spot" of International Relations or a Region of Cooperation?
This paper is prepared as a contribution to the Project on U.S. Global Engagement at the Carnegie Council for Ethics in International Affairs. It is not to be cited or distributed without the permission of the author or the Project Director.
Introduction
The Arctic, located directly between the United States and the Soviet Union, was on the front lines of the Cold War. Nuclear submarines prowled the Arctic Ocean while long-range bombers circled overhead. Many runways and radar stations were built, along with underwater acoustic sensors for detecting the submarines.
A more cooperative approach has emerged since 1990, when the United States and the Soviet Union agreed on the location of their maritime boundary in the Bering Strait and Chukchi Sea. In 1996, the creation of the Arctic Council institutionalized cooperation on nonmilitary matters among the eight Arctic countries: Russia, the United States (Alaska), Canada, Denmark (Greenland), Norway, Iceland, Sweden, and Finland.
In the past decade, the cooperation has intensified because of climate change, which is melting the Arctic sea ice, opening new shipping routes, and facilitating access to oil and gas. As a result, existing and potential maritime boundary disputes have acquired new relevance. In May 2008, the five countries that border on the Arctic Ocean (Russia, the United States, Canada, Denmark, and Norway) adopted the Ilulissat Declaration, in which they reaffirmed their commitment to working within an existing framework of international law to delimit their respective areas of jurisdiction over the seabed.
The Cold War divide has not been as easy to bridge on security matters. NATO's membership has been expanded to include several countries bordering on Russia, causing concern there, while the North American Aerospace Defense Command (NORAD) has been extended to include the sharing of maritime surveillance between Canada and the United States. That said, the terrorist attacks of September 11, 2001, provided an impetus for some forms of security cooperation between NATO countries and Russia, notably the Proliferation Security Initiative (PSI), which applies to oceans everywhere, including in the Arctic. Recent improvements in U.S.-Russia relations, especially with respect to missile defense, nuclear nonproliferation, and disarmament, could have major implications for circumpolar politics.
Climate Change
Climate change is more apparent in the Arctic than anywhere else on Earth. In addition to the rising temperatures caused by global greenhouse gas emissions, change is being driven by Arctic-specific "feedback loops" arising out of the precarious balance between water and ice. An increase in average annual temperatures of just a fraction of one degree can transform highly reflective sea ice into dark, heat-absorbing open water. The same increase can turn rock-hard, chemically stable permafrost into a decomposing, methane-emitting morass of ancient plant material. In recent decades, average annual temperatures in Alaska and the western Canadian Arctic have increased by more than three degrees Celsius.
In 2004, the Arctic Climate Impact Assessment reported that the average extent of sea-ice cover in summer had declined by 15 to 20 percent over the previous three decades. The rate of ice melt has accelerated since then, with a loss of 1 million square kilometers in 2007 alone. The heat absorbed by the newly revealed open water not only melts additional ice during the summer, but also delays the formation of the next winter's ice, which makes that ice thinner and more susceptible to melting the following summer.
A complete, late-summer melt-out of Arctic sea ice could occur as early as 2013.1 When that happens, Arctic waters will become navigable twelve months a year, since a complete melt will spell the end of the "multiyear" ice that, after surviving the summer, becomes thicker and harder as a result of the accretion of new ice and the leaching out of sea salt during the warming-and-cooling cycle. From that point onward, the Arctic Ocean will resemble the Baltic Sea, where ice-strengthened ships and icebreaker-escorted convoys can safely operate in winter. The seasonal disappearance of the sea ice will also have profound climate consequences, altering prevailing winds and ocean currents worldwide.
Economic Activity and Environmental Impact
The Arctic is rich in hydrocarbons, with the U.S. Geological Survey estimating in 2009 that the region contains 83 billion barrels of oil and 44 trillion cubic meters of natural gas.2 Most of the projected reserves are located in waters less than 500 meters deep and will likely fall within the uncontested jurisdiction of one or another Arctic Ocean coastal state. Oil and gas have been exploited since the early 1980s in Prudhoe Bay, Alaska, and off the coasts of Russia and Norway in the Barents Sea. Additional fields have been discovered but not yet exploited in the Beaufort Sea north of Alaska and Canada's Yukon Territory, and around the Sverdrup Islands in the Canadian territory of Nunavut.
As the ice melts, ships will increasingly be used to transport oil and gas from and through the Arctic. Ice-strengthened tankers are already moving liquefied natural gas from northern Norway to the United States. The use of oil tankers entails particular risks, since Arctic ecosystems are exceedingly fragile, oil degrades and dissipates very slowly at cold temperatures, and long distances would render cleanup efforts expensive and time-consuming.
Other forms of shipping will also be attracted by the open water and thinner, softer ice. The Northwest Passage offers a 7,000-kilometer shortcut between East Asia and the Atlantic Seaboard of the United States, as compared with the usual route through the Panama Canal. The Northern Sea Route along the coast of Russia offers a similar shortcut between East Asia and Europe, while a third option—sailing straight across the middle of the Arctic Ocean—would cut the distance from East Asia to Europe in half.
Each summer now, hundreds of cruise ships visit Greenland. Dozens enter the Canadian Arctic, while a few travel to the geographic North Pole. Adventurers are also heading north in growing numbers, some of them sailing small boats through the Northwest Passage. Search-and-rescue officials in Denmark, Canada, and the United States are concerned because these are remote, incompletely charted and sometimes stormy waters. Icebergs are also becoming more common, as water produced by the melting of Greenland's glaciers lubricates their movement into the sea.
The International Maritime Organization (IMO) spent years negotiating an Arctic Code for shipping, but the document was downgraded to a set of guidelines before it was adopted in 2002. In 2009, the Arctic Council released the Arctic Marine Shipping Assessment, which highlighted the environmental risks, especially from oil spills, but also from "ship strikes on marine mammals, the introduction of alien species, disruption of migratory patterns of marine mammals and anthropogenic noise produced from marine shipping activity."3 The assessment urged Arctic countries to liaise with international organizations, promote the development and mandatory application of the IMO guidelines, and harmonize domestic safety regimes. It also, importantly, recommended the development of "a comprehensive, multi-national Arctic Search and Rescue (SAR) instrument, including aeronautical and maritime SAR, among the eight Arctic nations."4
Security
Despite the Arctic's Cold War history, the most significant security threats today are found along its southern fringes, in the Northwest Passage, Northern Sea Route, and the Barents, Greenland, Beaufort, Chukchi, and Bering seas. They involve nonstate actors, such as drug smugglers, gunrunners, illegal immigrants, and even terrorists, who might take advantage of ice-free Arctic waters to move contraband or people between the Pacific and Atlantic oceans or into North America or Europe. Cooperative mechanisms, such as the Proliferation Security Initiative, help to address these threats, with PSI using the existing jurisdiction of coastal, port, and flag states rather than seeking new rights under international law.5
The nonstate threats have attracted the attention of Arctic countries, not all of which are equipped to address the challenge. Canada plans to construct six ice-strengthened patrol ships for its navy and a new icebreaker for its coast guard; in the meantime, it conducts summertime exercises with its existing vessels in the relatively safe and accessible waters of Baffin Bay. Denmark and Norway already posses a few ice-strengthened frigates. The U.S. Coast Guard has three icebreakers, two of which are quite old, and has recently deployed smaller, non-ice-strengthened vessels to northern Alaska in summer. Russia is by far the best equipped of the Arctic countries, with several dozen icebreakers, some of which are nuclear-powered. Moscow recently announced plans to increase its Arctic presence, though how and when this will happen remains unclear.
The United States, Russia, and probably Britain and France continue to deploy nuclear submarines in northern waters. Two U.S. submarines conducted communications tests off the north coast of Alaska in early 2009, while Russia's Northern Fleet is based in the Arctic Ocean port of Murmansk, which, thanks to the Gulf Stream, is ice-free throughout the year. Both countries regularly deploy military aircraft over that ocean, with one exercise—by two Russian bombers in February 2009—prompting a public expression of concern from Canada's defense minister.6
American and Russian responses to the Canadian minister were, however, more telling than his expressed concerns. The four-star U.S. general in charge of NORAD assured journalists that the Russians had "conducted themselves professionally" and not entered Canadian or U.S. airspace, while a Russian diplomat explained that NORAD had been notified of the flights in advance, in accordance with a long-standing agreement between Washington and Moscow.7
The public slap on the Canadian wrist was indicative of the importance placed on improved U.S.-Russian relations by the Obama administration. President Obama has taken risks to promote that relationship, unilaterally revoking plans for U.S. missile defense installations in Poland and the Czech Republic and becoming the first American president to chair a meeting of the UN Security Council. The gamble has paid off, so far, with a unanimous resolution recommitting all five "declared nuclear weapon states" to negotiate toward the elimination of their nuclear arsenals.8 The table is now set for the 2010 Review Conference of the Nuclear Non-Proliferation Treaty, with Obama's expressed goal being complete nuclear disarmament. With so much at stake, incompetence or domestic political opportunism on the part of the Canadian government will not be tolerated. One can hope that Ottawa heard the message, and that it will now contribute positively to Washington's efforts—most obviously by engaging Moscow cooperatively on all Arctic issues.
International Law
The U.S.-Russian notification agreement is one thread in a web of international law that is pulling the Arctic toward ever greater cooperation. The role played by the 1982 United Nations Convention on the Law of the Sea (UNCLOS) is of particular importance. For unlike the Antarctic, a continent surrounded by oceans, the Arctic is an ocean surrounded by continents. UNCLOS has been ratified by four of the five countries that border the Arctic Ocean, while the United States accepts the relevant provisions as customary international law.
With the exception of Hans Island, a tiny outcrop between Greenland and Canada, there are no disputes over land territory in the Arctic. However, several existing or potential disputes over maritime boundaries and shipping routes are coming into focus as the ice melts and prices for oil and gas increase.9
No country will ever "own" the geographic North Pole, which is located roughly 400 nautical miles to the north of Greenland, Canada's Ellesmere Island, and the Russian archipelago of Franz Josef Land. This is because coastal states do not possess full sovereignty beyond the 12-mile territorial sea. Instead, they have certain sovereign rights out to 200 miles and sometimes farther. Article 76 of UNCLOS specifies that coastal states may claim rights over an "extended continental shelf" if the depth and shape of the seabed and the thickness of underlying sediments indicate a "natural prolongation" of the shelf closer inshore. On the basis of what little we know about the Arctic Ocean so far, it is possible that either Russia, Denmark, or Canada will be able to scientifically demonstrate that the seabed at the North Pole is a natural prolongation of its continental shelf. If so, the country in question will have the exclusive right to exploit the resources of that area of seabed and nothing more. The water and sea ice will remain part of the high seas.
Regardless of what happens at the North Pole, the sheer size of the Arctic Ocean and the lengths of uncontested coastlines mean that Russia will likely have sovereign rights over an expanse of seabed larger than Western Europe. Canada, with the world's longest coastline, will also have a sizable extended continental shelf, as will the United States—thanks to the relatively shallow seabed extending from Alaska's northern coast. Countries that do not border on the Arctic Ocean might feel left out, but because UNCLOS applies globally, many have the opportunity to assert similar rights along their coastlines.
Apart from the technical exercise of collecting and assessing the scientific evidence, the only significant issue concerns possible overlaps between claims. Overlaps can occur where there are disputed maritime boundaries closer inshore, since the dividing line beyond 200 miles is usually simply an extension from the starting point. Disputes of this kind exist between Canada and the United States in the Beaufort Sea and Norway and Russia in the Barents Sea. Depending on the scientific evidence, an overlap is also conceivable between Russian, Canadian, and Danish claims in the central Arctic Ocean.
Article 76 requires that scientific evidence of a natural prolongation be submitted to the UN Commission on the Limits of the Continental Shelf for review and recommendations. However, the commission will not issue recommendations with respect to overlapping claims. It is up to the countries involved to negotiate a solution, refer the matter to an international court or tribunal, or simply agree to disagree and not issue exploration licenses for the contested area.
In response to widespread misreporting about the possibility of conflict over seabed resources, Denmark hosted a summit of the Arctic Ocean coastal states at Ilulissat, Greenland, in May 2008. The summit culminated with all five countries reaffirming their commitment to resolving disputes peacefully within the existing framework of international law.10 Cooperation on seabed mapping has accelerated since then, with Canadian and U.S. icebreakers working together in the Beaufort Sea, and diplomats from the five countries discussing the possibility of coordinated claims in the central Arctic Ocean. This approach, which would essentially create a negotiated set of boundaries, deserves the strongest possible support.
International law is also central to the U.S.-Canada dispute over the status of the Northwest Passage. Ottawa regards the channels between its 19,000 Arctic islands as "internal waters," which foreign vessels require permission to enter and where the full force of Canadian domestic law applies. Washington considers the waterway an "international strait" open to ships from any country almost without constraint. The two countries agreed to disagree in 1988, concluding a treaty on coast guard icebreaker transits that was explicitly without prejudice to their respective legal positions.11 Today, with the sea ice melting and the prospect of numerous foreign vessels sailing through, the environmental protection and security interests of both Canada and the United States point in the direction of further negotiations.
In 2005, then U.S. Ambassador Paul Cellucci asked the State Department to reexamine the United States' legal position concerning the Northwest Passage. After his term in Ottawa was over, Cellucci made his personal views clear: "It is in the security interests of the United States that it [the passage] be under the control of Canada."12 In 2008, the former envoy participated in a model negotiation between two teams of nongovernment experts that produced nine recommendations for Canada-U.S. cooperation and confidence building with respect to northern shipping.13
Official policy, however, remains stuck in the pre-climate change, pre-9/11 era, when thick, hard sea-ice could be relied upon to keep foreign vessels away, and concerns about a precedent that might negatively affect the U.S. Navy's navigation interests elsewhere, such as in the Strait of Malacca, weighed heavier than threats from non-state actors and WMD. In January 2009, just before he left office, U.S. President George W. Bush signed a presidential directive that included a reaffirmation of Washington's long-standing position that the Northwest Passage constitutes an international strait.14
Concerns about a negative precedent are exaggerated. The presence of multi-year ice and paucity of foreign transits enable the Northwest Passage to be legally distinguished from all other potential or existing international straits—except for the Northern Sea Route where a physical challenge to Russia's "internal waters" claim is inconceivable and, given that melting ice will soon enable voyages farther north, unnecessary. Nor did the Bush Administration, with its reluctance to acknowledge the seriousness of climate change generally, seem to appreciate just how fast the Arctic sea-ice is disappearing, and what an influx of non-state actors along North America's longest coastline might mean for the United States.
Now, every summer brings a heightened risk of a challenge to Canada's position: most likely by a rogue cargo ship flying a flag of convenience and seeking to take a 4,000 mile short-cut without consideration for the claims and changing interests of Canada and the United States.15 In the circumstances, the two countries should pursue every opportunity for cooperation, including by updating and extending the 1998 treaty on coastguard icebreakers to address the security threats posed by commercial ships and other non-state actors.
International Institutions
Established in 1996, the Arctic Council is an intergovernmental forum for promoting cooperation, coordination, and interaction among all the Arctic countries. It also includes several transnational indigenous groups as "permanent participants." The Arctic Council focuses on issues of sustainable development and environmental protection and, by agreement of its member states, does not deal with matters related to military security. The Arctic Council has commissioned a number of influential reports, including the Arctic Climate Impact Assessment (2004) and Arctic Marine Shipping Assessment (2009). In May 2008, some proponents of the Arctic Council were disappointed when Denmark invited the Arctic Ocean coastal states to Ilulissat without also inviting Finland, Iceland, and Sweden. Similar disappointment followed Canada's move, in April 2009, to deny "observer" status to China and the European Union, in retaliation for an EU ban on the importation of seal products.
Although the International Maritime Organization should be leading efforts to regulate Arctic shipping, the divergent interests of coastal and shipping states have slowed progress there. The 2002 Arctic Code is useful as a guideline for domestic legislators and a possible template for an eventual treaty. Other IMO treaties that are not specific to the Arctic, such as the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, also apply there, and ensure that the Arctic Ocean is no less regulated than the other, ice-free oceans.
The role of the United Nations, discussed above, must not be underestimated. When UNCLOS was negotiated during the late 1970s and early 1980s, the Arctic was a focus of attention, as is evidenced by Article 234, which enables coastal states to adopt stringent pollution-prevention measures in ice-covered regions. Article 76 on the extended continental shelf would also have been drafted with the Arctic in mind and is now, along with the UN Commission on the Limits of the Continental Shelf, providing an invaluable basis for dispute avoidance between Russia, the United States, and the other Arctic Ocean countries.
Indigenous Peoples
The inclusion of indigenous groups as permanent participants at the Arctic Council is a reflection of the important role played by northern peoples in diplomacy and international lawmaking. In Canada and Denmark, the traditional use and occupancy of land and ice by indigenous peoples constitutes an element of nation-state sovereignty claims. Indigenous peoples have concluded a number of land claims agreements with national governments, such as the 1971 Alaska Native Claims Settlement Act and the 1993 Nunavut Land Claims Agreement. Nunavut, with an 85 percent indigenous population, has a majoritarian government system that effectively provides Inuit self-government. Greenland, which was accorded home rule in 1979, is 88 percent Inuit. In 1985, Greenlanders voted to leave the European Economic Community and, in 2008, to take on additional governing powers. Denmark remains responsible only for Greenland's defense, foreign affairs, financial policy, and an annual transfer of 3.4 billion Danish krone.
Some Arctic indigenous groups are transnational in character, with the Inuit Circumpolar Council representing the Inuit of Greenland, Canada, Alaska, and Russia, and the Saami Council representing the Saami of Norway, Sweden, Finland, and Russia. The Inuit Circumpolar Council has been particularly influential on international environmental issues, providing an essential moral impetus during the negotiation of the 2001 Stockholm Convention on Persistent Organic Pollutants and helping to bring the Arctic dimension of climate change into the global public consciousness. In 2009, the Inuit Circumpolar Council issued "A Circumpolar Inuit Declaration on Sovereignty in the Arctic."16 The document does not claim Inuit sovereignty; rather, it asserts the right to be involved in any interstate negotiations concerning sovereignty disputes and indicates specific concern about the exclusion of the Inuit from the 2008 Ilulissat summit.
Future Prospects
One occasionally hears talk of the need for an Arctic treaty modeled on the 1959 Antarctic Treaty, or for an Arctic-wide nuclear-weapons-free zone. Achieving multilateral agreement on such matters will not be easy, given the continued strategic importance of the Arctic for the United States and Russia; the significant populations that live there, especially in Alaska and Russia; and the considerable jurisdiction already vested in the Arctic Ocean coastal states under the law of the sea. Fortunately, a great deal of cooperation and international law already exists in the Arctic, beginning with UNCLOS and extending through the Arctic Council, the International Maritime Organization, and the very many ad hoc meetings between different governments. Treaties exist—and are complied with—on icebreaker transits, the protection of species at risk, the prevention and cleanup of pollution, and many other subjects. The few remaining boundary disputes are relatively minor and susceptible to negotiated solutions.
Much of the cooperation is based on the sovereign rights that Arctic countries hold over their territories, adjoining waters, and continental shelf. This should come as no surprise, for the international legal system is the result of centuries of cooperation between sovereigns, as countries defined the boundaries between their respective jurisdictions and worked together in pursuit of common goals. In the Arctic, sovereign rights can facilitate cooperation by providing clear jurisdiction for regulating shipping and the extraction of natural resources, and for guarding against nonstate security threats.
Thanks to international law, there is no race for Arctic resources. Nor is there any appetite for military confrontation. The Arctic, instead, has become a zone of quiet cooperation, as countries work together to map the seabed, protect the environment, and guard against new, non-state security threats.
NOTES
1 Jonathan Amos, "Arctic Summers Ice-free 'by 2013,' " BBC News, December 12, 2007; available at news.bbc.co.uk/2/hi/science/nature/7139797.stm.
2 Donald L. Gautier et al., "Assessment of Undiscovered Oil and Gas in the Arctic," Science 324, no. 5931 (May 2009), pp. 1175-79.
3 Arctic Council, "Arctic Marine Shipping Assessment 2009 Report," p. 5; available at arctic-council.org/filearchive/amsa2009report.pdf.
4 Ibid.
5 Michael Byers, "Policing the High Seas: The Proliferation Security Initiative," American Journal of International Law 98 (2004), pp. 526-44.
6 Steven Chase, "Ottawa Rebukes Russia for Military Flights in Arctic," Globe and Mail (Toronto), February 28, 2009.
7 Ibid.; and testimony of Dmitry Trofimov before Canadian House of Commons Standing Committee on National Defence, March 23, 2009; available at www2.parl.gc.ca/HousePublications/Publication.aspx?DocId=3760417&Language=E&Mode=1&Parl=40&Ses=2.
8 UN Security Council Resolution 1887, September 24, 2009; available at un.org/Docs/sc/unsc_resolutions09.htm.
9 See, generally, Michael Byers, Who Owns the Arctic? Understanding Sovereignty Disputes in the North (Vancouver: Douglas & McIntyre, 2009).
10 "The Ilulissat Declaration," Arctic Ocean Conference, Ilulissat, Greenland, May 27-29, 2008; available at byers.typepad.com/arctic/ilulissat-declaration-may-28-2008.html.
11 "Agreement between the Government of Canada and the Government of the United States of America on Arctic Cooperation," Canada Treaty Series 1988, no. 29; available at http://treaties.un.org/doc/publication/unts/volume%201852/volume-1852-i-31529-english.pdf.
12 Daniel LeBlanc, "U.S. Reasserts Its Position on Northwest Passage," Globe and Mail (Toronto), November 1, 2006.
13 For details of the model negotiation, see Byers, Who Owns the Arctic?, Annex II. xiv. National Security Presidential Directive 66 & Homeland Security Presidential Directive 25, January 9, 2009, available at: http://www.fas.org/irp/offdocs/nspd/nspd-66.htm.
14 National Security Presidential Directive 66 & Homeland Security Presidential Directive 25, January 9, 2009, available at: http://www.fas.org/irp/offdocs/nspd/nspd-66.htm.
15 For a detailed scenario, see: Who Owns the Arctic?, Annex I.
16 "A Circumpolar Inuit Declaration on Sovereignty in the Arctic," April 2009; available at http://inuitcircumpolar.com/files/uploads/icc-files/declaration12x18vicechairssigned.pdf.
