International Law Framework in the Arctic Region
Far from being a “Wild West” without coherent international law and institutions, the Arctic Ocean is governed by both global and regional agreements. While there is competition in the region over boundary claims and resources, shipping routes, and geostrategic influence, this impulse is tempered and channeled by the rules set forth in the United Nations Convention on the Law of the Sea (UNCLOS) and other treaties, as well as the Arctic Council, an effective forum for Arctic cooperation. Whereas Antarctica is a continent surrounded by oceans, the Arctic is an ocean encircled by land. Like all oceans, the Arctic Ocean is governed by the provisions of UNCLOS. The rules reflected in treaty are accepted by all the eight Arctic states – Norway, Denmark (by virtue of Greenland), Canada, the United States, Iceland, Sweden, Finland, and Russia. Bordering on the Arctic Ocean, these states have a special interest and heightened stewardship responsibility in the region. There are a handful of maritime boundary disputes among the Arctic states. While the United States and Russia have a stable maritime boundary agreed to in 1990, while the United States and Canada have a small area of disagreement in the Beaufort Sea. Canada and Denmark disagree over the status of Hans Island in the Beaufort Sea near Greenland. Russia and Norway resolved a maritime boundary dispute in the Barents Sea in 2010
Coastal states have sovereignty over a territorial sea extending no more than 12 nautical miles (nm) from their coastline. The rules governing navigation of ships permit innocent passage in the territorial sea. Innocent passage may be suspended by the coastal state and does not include aircraft. Submarines must travel on the surface. States have disagreed with Russian and Canadian claims to limit free passage through parts of their territorial seas along straits used for international navigation. The Russian Northern Sea Route and the Canadian Northwest Passage cut through territorial seas and beyond. Ships and aircraft may traverse international straits under a special set of rules called ‘transit passage.’ The United States and the European Union have protested Canadian and Russian restrictions through those Arctic corridors.
Coastal states also are entitled to exercise exclusive jurisdiction over living and non-living resources out to a distance of 200 nautical miles (nm) from shore in accordance with the rules for establishment of an exclusive economic zone (EEZ) set forth in UNCLOS. Control over the Arctic Ocean is becoming more important as fish stocks migrate north due to climate change and rare earth minerals on the seabed are needed as materials for solar panels and electric vehicles. Under UNCLOS, the EEZ generally does not impede high seas freedoms, but a special provision in article 234 of the treaty permits coastal states to adopt and enforce stringent environmental standards in the zone. Article 234 of UNCLOS recognizes that coastal states may implement national laws to preserve and protect the marine environment in the EEZ if it is an “ice-covered” area. The term “ice-covered,” however, is not defined, raising questions about the scope of article 234. Nonetheless, Canada and Russia appear to apply such measures throughout their EEZ by requiring mandatory ship reporting.
In some cases, in which there is a natural prolongation of the continental margin beyond 200 nm, coastal states may claim seabed oil and mineral resources even farther from the coast. These claims are reviewed by an international commission, which is authorized to make a final and binding determination. In 2001, Russia was the first nation to submit a claim to this commission and other states have followed. Once resolved, these seabed resources may provide fossil fuels as well as rare earth metals necessary for technology manufacturing.
The eight Arctic states are members of the Arctic Council, which was founded in 1996 and is the leading international forum for promoting cooperation in the region. Arctic states working within the Arctic Council have adopted three legally binding treaties that further build out the normative regime. In 2011, these states signed and Agreement on Cooperation on Aeronautical and Maritime Search and Rescue (SAR) in the Arctic that created zones of responsibility for rescuing ships and aircraft in distress. Two years later, they completed the Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic, which commits each state to adopting a national system for effective oil spill response and creates mechanisms for coordination among them. These two agreements are especially important for establishing infrastructure, such as aids to navigation and weather forecasting and communications systems, to ensure safe shipping in the Arctic Ocean.
In 2017, the Arctic states entered into the Agreement on Enhancing International Arctic Scientific Cooperation to share scientific research on the Arctic natural environment and global climate change. The Arctic Council and the treaties negotiated by the member states all leverage traditional and local knowledge of indigenous peoples in the region. In 2019, the Arctic States reached another agreement that placed a moratorium on fishing in the Central Arctic Ocean beyond the 200-mile EEZs to ensure that fish stocks were not depleted before they were better understood. This precautionary approach was implemented in the face of uncertainty over the size of the fish stocks or the effects of species migration caused by climate change.
Despite the deteriorating relationship between Russia and the rest of the Arctic states, and the United States and NATO in particular, Moscow generally complies with the international laws and institutions in the region even as it seeks geopolitical advantage and issues occasional threats. The Arctic Council has worked remarkably well despite the political distance between Russia and the rest of the members. In recent years, a slate of new states has joined the Arctic Council as observers, including China, Japan, Korea, and Singapore. While they are not voting participants, interest from states outside the region signifies the global importance of Arctic law and governance.