Russia was one of the first nations to claim the untold, untapped riches lurking beneath the ice and water. In 2007, Russia attempted to claim the undersea region of the North Pole by placing a titanium version of their country’s flag on the seabed 4,200m (14,000ft) below the North Pole.

Canada has disputed Russia’s claim. The United States has sent a Coast Guard ship to serve a joint mission with Canada to determine the extent of the continental shelf north of Alaska and map the ocean floor. This data would be used for oil and natural gas exploration.

Britain’s International Boundaries Research Unit has recently published a new jurisdictional map of the Arctic, complete with geographic and legal definitions overlayed.

Norway, Denmark – every arctic country wants a piece of the action.

What are the issues?

There issue involved here is international law relating to territorial sovereignty as expressed along coastlines.

What is the governing international law?

Unlike Antartica, the arctic regions of the north have no single treaty governing ownership and use.

Russia’s planting of their titanium flag may seem like a blatant terra nullius land grab, but it was not. The accompanying statements to this event made it clear that Russia was attempting to make a claim under the United Nations Convention on the Law of the Sea (UNCLOS), also called the Law of the Sea Convention or the Law of the Sea treaty.

UNCLOS is a convention that defines specific legal terms, duties, and responsibilities for all nations with ocean coastlines. It is meant to replace the customary law governing the oceanic borders of nations. UNCLOS specifically defines what powers a nation state can exercise in territorial waters, how territorial waters are defined, and created the concept of Exclusive Economic Zones (EEZs) where the coastal nation has sole exploitation rights over all natural resources in that zone.

A nation’s EEZ extends 200 nautical miles from the low-water mark of a nation’s coast or for the length of the state’s continental shelf. The treaty allows states to control whichever distance is greater.

So, it becomes very important to determine if your coast has a continental shelf and how far it extends. A broad shelf gives a state more area and resources to utilize.

Source: UNCLOS

This is why the U.S. and Canada are proceeding with high-tech mapping expeditions in the polar regions. They’re trying to grab more territory, just like the Russians were trying.

Countries are not allowed to claim that their continental shelf extends beyond the 200 mile limit. Instead, the U.N.’s Commission on the Limits of the Continental Shelf (CLCS) helps determine the actual distance of a country’s EEZ by examining claims by member states.

The CLCS was created as by Article 3 of Annex II of UNCLOS.

Surprisingly, the U.S. is a signatory of UNCLOS, but has failed to ratify the treaty in accordance with it’s Constitutional process. This means that the U.S. is not a full member to the Convention. Still, U.S. officials have announced that they will treat UNCLOS as customary law. The Bush administration has also urged the U.S. Senate to ratify the treaty – with some reservations.

With every nation possessing an arctic coastline either signing UNCLOS or admitting that it is binding international law, this treaty governs how territorial disputes in the polar sea region will be resolved.

What does this mean for the reader?

The good news is that everyone gets something. Using UNCLOS as the deciding law in this matter means that every nation with an arctic coastline will get some benefits. The British jurisdictional map mentioned above is probably a close approximation of how the upcoming territorial disputes will shake out.

Happily, no one is talking about using military solutions to claim territory in the Arctic Circle.

The Rule of Law works.

The true long term question is, “Does the adherence by these states to international law in this conflict strengthen the case for using international law in the future?”

I think the answer to this question is, “It depends.”

There are several factors that contribute to why the interested states are relying on international law in this conflict:

1. There is already existing international law that binds all the interested parties. UNCLOS governs.
2. The rewards in this conflict are speculative. No one knows just what resources are available and if they exist in sufficient concentration to be profitably exploited. Why spend money, military resources, and political capital on riches that may not even be there.
3. On the other hand, the potential resources are too large to ignore. Failure to stake a claim could be an incredibly costly mistake.
   
4. It’s friggin’ cold up there. I mean seriously cold – not even navigable during parts of the year due to the ocean freezing over. The costs to keep men and equipment functioning up there are staggering, even with global warming helping to cut costs. Sometimes, it’s just cheaper to talk rather than fight.
   

So it appears that nations turned to international law in this conflict as part of a low-risk, high-gain bit of gamesmanship. It costs them very little to make a claim under UNCLOS, but not making that claim could cost them a lot in the future.

In a sense, the arctic nations are playing the lottery rather than robbing a bank. Both may get a person a large amount of money, but playing the lottery only means you lost a few dollars if you pick incorrectly. Robbing a bank will get you despised, hunted, and possibly shot.

Which course would you prefer your country take?
–
www.joshualenon.com
]]> http://everydayinternationallaw.com/2008/10/06/pole-position-the-race-for-the-arctic-wealth/feed/ 1 http://everydayinternationallaw.com/2008/08/26/georgia-on-my-mind/ http://everydayinternationallaw.com/2008/08/26/georgia-on-my-mind/#comments Tue, 26 Aug 2008 14:53:00 +0000 Joshua Lenon http://everydayinternationallaw.com/?p=11 What are the issues?

Russia has recognized the formation of South Ossetia and Abkhazia as independent countries.

Just like that, Russia hopes to create two whole new countries out of nothing (or out of Georgia, depending how you look at it).

Can they do that?

What is the controlling international law?

Normally, Russia cannot create another country by recognizing a breakaway region of their neighbor.

Countries are defined under international law by specific qualities: “a state is an entity that has a defined territory and a permanent population under the control of its own government, and that engages in, or has the capacity to engage in, formal relations with other such entities.”

Source: Restatement (Third) of the Law of Foreign Relations, section 201

None of these qualities – defined territory, permanent population, government control, & capacity for formal relations with other states – depends on an outside actor. That means South Ossetia has to meet the requirements of statehood on its own. Russia’s recognition – while helpful as evidence of capacity to engage in formal relations with other states – does not automatically create a new country.

This is especially true as there is a dispute to territorial integrity in the area. Georgia still claims that area as a dependent province of their own country. No legal actions – including the recent ceasefire agreement – negates Georgia’s claim.

Russia might have an argument if the breakaway region was currently part of Russia. Russia could always voluntarily give up part of their own territory to create new countries. Such events were seen to occur when the former U.S.S.R. let it’s member states form their own independent countries.

Also governing is the the 1975 Helsinki Final Act that specifically endorses the “Inviolability of frontiers” and “Territorial integrity of States.”

Muddying the waters on this issue is the recent formation of Kosovo as a independent nation. Legally speaking, Serbia had the right to maintain control over Kosovo when it broke away. However, many Western countries – including the United States – were quick to recognize Kosovo as an independent state. This vocal support acts as a limiting factor on how Serbia reacts to this separatist movement. So far, they’ve turned away from military solutions to the International Court of Justice for a ruling on Kosovo’s independence.

What does this mean to you?

Believe it or not, separatism movements are commonplace in North America. Quebec wants to leave Canada. Certain populations in the southern states in the U.S. have always maintained that they will ‘rise again’ and leave the United States. The Zapatistas in Mexico often speak of self-rule for the region of Chiapas. Sometimes, it seems like we’re struggling to hold it all together.

Right now, a new precedent is emerging on how the international community deals with separatist movements and breakaway regions.

Kosovo and Georgia are test cases that will determine if our international rules are changing.

If they do change, future upheavals might make it easier for the delicate constructions of nations that we maintain to fall apart. We can go from a situation of assumed national integrity to a fragile coalition that can fall apart at any minute. More importantly, outside actors can take steps – legally – to hasten such breakups.

Russia is trying to set a precedent that outside actors can help tear apart nations to create new states.

If we allow this to be the new international rule, we shouldn’t be surprised when some other nation supports Texas leaving the United States. ]]> http://everydayinternationallaw.com/2008/08/26/georgia-on-my-mind/feed/ 0 http://everydayinternationallaw.com/2008/08/17/the-georgian-russian-conflict-and-international-law/ http://everydayinternationallaw.com/2008/08/17/the-georgian-russian-conflict-and-international-law/#comments Sun, 17 Aug 2008 21:35:00 +0000 Joshua Lenon http://everydayinternationallaw.com/?p=10 There is an excellent article at Opinion Juris on an international legal view of the conflict in Georgia.

Chris Borgen takes an excellent look at the issues surrounding the possible secession movement in South Ossetia and implications in international law.

Borgen rightly notes that secession tends to be a matter of internal, domestic law but can spill over into the international arena. This is a fact of which the Russians appear to have cynically taken advantage.

Borgen goes on to address the Russian’s strongest argument – that interference in Georgia is justified similarly to NATO’s interference between Serbia & Kosovo.

I find Borgen’s analysis to be spot on and Opinio Juris has done a thorough job reviewing the international legal aspects of this tragic affair – much more thorough than I could do.

How does this affect you?

As for North Americans, like most international affairs, the Georgian / Russian conflict has a direct impact on oil prices. Russia is the world’s largest exporter of natural gas and the world’s second largest oil exporter. Europe is the largest consumer of that oil.

Georgia has one of the few pipelines in the region that is not controlled by Russia. Should Russia succeed in annexing Georgia (or destroying the pipeline), they will have tightened their control on the regional oil exports. Russia will control a spigot they can turn to manipulate oil prices at a whim. Europe will have no choice but to buy oil from Russia or the global market – taking oil that would normally be sold elsewhere.

This means that North Americans would see a shrinking supply of oil and increased prices. So far, falling demand and quick diplomacy from the European Union has prevented a lasting price shock, but tensions still exist. Any resumption of blatant hostilities will lead to a rise in prices at the gas pump.

As a side note, U.S. diplomacy seems to be especially ineffective. The U.S. military invasion of Iraq on trumped up pretenses have given other would be conquerers a powerful rhetorical weapon to through back in the U.S.’s face. We’ve given a the tinpot dictators of the world cover for blatant acts of illegal aggression. We’ll regret this for decades to come.