The Arctic Cold War
TheStar.com - Ideas - The Arctic Cold War
August 12, 2007
Andrew Chung
Foreign minister Peter MacKay was indeed correct when he said of Russia's provocative flag planting in the North Pole's sea bed that, "This isn't the 15th Century."
He was suggesting that in our modern, more civilized world, codified international law, and not antediluvian games of finders-keepers, will decide claims of geographic ownership. And Russia, a sophisticated player in global diplomacy, has made statements in the past that it couldn't agree more.
But then MacKay's Russian counterpart, Sergei Lavrov, said he was amazed by Canada's response. "We're not throwing flags around," he told the Russian media. "We just do what other discoverers did."
(DISCOVERERS ?)
Most experts believe that international law, in the form of the United Nations' Convention on the Law of the Sea, will play an integral role in figuring out the unfolding conflict in the Arctic.
But don't count out the intrepid explorers of yesteryear and the kind of de facto international law they practised. In spite of the convention, some believe it's possible for countries to operate in a manner predating international law - or to ignore whatever decisions may flow from it.
With precious little ability to enforce its claims in the Arctic, Canada may be falling behind in asserting itself not in law, but in real life.
The story of the Arctic is still one of the future. Currently, it's a frozen hinterland, but with the polar ice caps melting, some predictions have it opening up to serious exploration and economic exploitation within 30 years. And the U.S. Geological Survey estimates that 25 per cent of the world's undiscovered oil and gas remains locked up deep beneath the frigid waters.
"It's striking that the confluence of high energy prices and melting has created a vast new area that countries are going to have to fight over," says international law specialist Eric Posner. "Not necessarily in a military sense, but they will struggle over this area, and we haven't had a situation like this for quite a long time."
One of the main struggles will be over the 1,800-kilometre-long Lomonosov Ridge between Siberia and Canada's Ellesmere Island. Russia believes the ridge belongs to it, and therefore so does the North Pole. Its dramatic submarine dive in the Arctic this month, the first to reach the polar sea bottom and carried out by Russian scientists, was to "prove" that fact.
The next step is for Russia to submit its scientific findings to a UN commission of geological experts struck to review any country's claim to the sea bed far beyond its borders - a "continental shelf." These procedures were set out in the 1982 Law of the Sea Convention, regarded as one of the most important pieces of international law, governing the use of our vast oceans and their rich resources.
For many centuries, the seas belonged to no one. Except for a narrow band around a nation's coastline, the high seas were a free-for- all. But growing concerns over foreign fishing vessels and pollution, and knowledge of the rich mineral and oil wealth under the sea floor, changed everything.
In 1945, U.S. President Harry Truman unilaterally tossed aside the freedom-of-the-seas doctrine and proclaimed exclusive ownership of its huge continental shelf. Other countries, including Canada, soon followed, asserting control over waters sometimes hundreds of kilometres beyond their borders. By the 1950s, oil drilling on the ocean floor was rapidly expanding.
The Law of the Sea eventually gave legal status to navigational rights, resources, marine protection and territorial sea limits, as well as a way to settle disputes. It established a generous "exclusive economic zone" for coastal states, extending 320 kilometres from their shorelines. But potential riches, from gas and oil to diamonds and gold, didn't always stop there. States realized continental shelves would need to be accounted for.
A process to submit claims to these extensions and a commission to evaluate them and make recommendations was set up. Russia made the first claim, in 2001, followed by Brazil and six other countries. The most recent was France earlier this year. Canada has yet to make its claim.
How that process will play out remains anyone's guess, because no claim has yet been resolved.
For this country, says Michael Byers, Canada Research Chair in global politics and international law at UBC, the Law of the Sea is "a good news story in terms of the rule of law and of multilateral cooperation in a situation where one of the alternatives is a military contest over resources, which is the last thing any sane person from a less powerful country would want. International law is what protects our interests most of the time."
Byers says the conflict over the Arctic involves only those areas where nations' continental shelves may "overlap," perhaps less than 10 per cent of any claims made or yet to come. He maintains that the fact the treaty is steeped in science, along with the expertise of the commission, will lend the whole process legitimacy and compel countries to accept the commission's recommendations.
But even if it's all about science, this won't be an exact science. Countries will, for instance, try to justify ownership over the same seabed. "The Russians are going to make the most extensive claim possible," Byers predicts. "It will be based on an interpretation of the scientific evidence that is as favourable to them as possible."
Others think cases where conflicts are already apparent - Canada and Denmark have claims to the same continental shelf as Russia, even if we don't precisely know where those claims lie - render the commission irrelevant. "The commission can't deal with information presented where there is a conflict," explains University of Victoria's Ted McDorman, an expert in the Law of the Sea. "It has no power to decide ... so like other ocean boundary disputes, it will ultimately come down to some level of negotiation. Political negotiation."
International law allows for disputes to be adjudicated through a special Law of the Sea Tribunal. But Canada and Russia, in ratifying the treaty, both declared they would opt out of being compelled to send a dispute over maritime boundaries to the tribunal.
It could be years before nations reach that stage. Canada is still gathering details for its submissions to the UN. Countries have just 10 years after ratifying the Law of the Sea to submit claims. For Canada, this means 2013.
Meanwhile, Russia isn't wasting a moment. It has capitalized on its stable of useful vessels, nuclear-powered icebreakers for instance, to show that it's serious about the north. "The Arctic always was Russian, and it will remain Russian," expedition leader Artur Chilingarov said last week.
"Why drop their flag" at the North Pole? asks Posner of the University of Chicago. "I take it as a signal they're going to claim this regardless of what the UN commission is going to say sometime in the future."
In other words, states could ignore the UN commission or simply not comply with their international legal obligations. "Usually they make a legalistic argument, which may be implausible, but they make it anyway and go ahead and do whatever they want to do."
In these cases, power may, in the end, trump international law in determining who gets what in the Arctic, he says. "Power means the ability to keep other people out."
Posner considers Russia's flag caper less benign than most, reflective of a more "aggressive" Russia, seeking to reclaim through energy dominance the global stature once held by the Soviet Union.
He has a hunch that, if the ice cap continues to melt and energy prices keep rising, Russia will send more and more ships into the Arctic. Eventually, "they'll define an area, maybe what they've claimed already, maybe less, and say, `This is our water,' and come up with an excuse, such as the Eurasian continent extends below this, `and we'd be happy to sell licences to extract oil and gas,' and so on."
He doesn't think there would be war, but the concern is "Russia has a head start," Posner argues. "It's got a lot of ships that can operate in the Arctic. Canada has very few."
Planting a flag could be more important than we think, says Robert Miller, an expert in the "Doctrine of Discovery," which started with Pope Nicholas V in 1455 and was used by New World explorers to lay divine right over land for European Christian societies.
"There are definitions in the treaty, and Russia is trying to prove that the ridge runs to the North Pole. That's outside the parameters of the Doctrine of Discovery," says Miller, who teaches at the Lewis & Clark Law School in Portland, Ore. "But look at how Russia is dotting its i's and crossing its t's by planting a flag. If they can't win this, they're doing what lawyers do all the time: try to prove it in a different way. They could say, `We were the first to have planted a flag on the seabed.'
"The treaty supplemented the Doctrine of Discovery," Miller argues. "It didn't replace it."
The idea of planting flags and showing up every now and then - say at a deserted island - to show you exert control is called "effective occupation." Byers says Canada has done this with Hans Island in the Arctic, whose ownership it disputes with Denmark.
Some experts suggest that while control of an area used to occur before sovereignty was established, today sovereignty over an area must be established by international law before taking control.
Law may be supreme on paper, but there's something to be said for the old behaviours. That's why there are growing calls for the government to do more to assert Canadian sovereignty in the Arctic.
Aside from continental-shelf claims, the Northwest Passage, which links the Atlantic and Pacific, is of primary importance for this country. As the climate warms, the ice pack preventing shipping could open up a much quicker route from Europe to China.
Canada considers the Passage to be inland waters. Other nations, including the U.S., say it's part of the high seas, and want free access.
Byers has said Canada needs heavy-duty icebreakers, not the smaller vessels the government has promised to the navy, to properly assert its sovereignty in the Passage, but also to properly research its claim to the Arctic seabed.
One solution, Posner says, may be for Canada and the U.S. to work together to counterbalance Russian designs on the area - Canada with its knowledge, the U.S. with its money and military power.
"The only question for Canada and the U.S. is, how much effort (do they) want to start making in order to limit what Russia can get away with?"