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What Legal Framework Governs the North Pole?

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What Legal Framework Governs the North Pole? What legal framework governs the North Pole? Master thesis International Law Tilburg University J.R. Mulder (ANR 865773) Supervisor: Dr M. Goodwin What legal framework governs the North Pole? Table of contents. page Introduction ---------------------------------------------------------------------------------- 3 Define the North Pole area North Pole area ----------------------------------------------------------------- 5 South Pole area ----------------------------------------------------------------- 6 Comparison ----------------------------------------------------------------- 7 Conflicting claims, what is the problem? -------------------------------------------------- 8 Sovereignty ---------------------------------------------------------------------------------- 12 Acquisition of territory -------------------------------------------------------------- 13 Sovereignty: jurisdiction and military power ------------------------------------ 14 The legal framework on the sea UN Charter --------------------------------------------------------------------------- 15 Customary International Law ------------------------------------------------------ 15 General Principles ------------------------------------------------------------------- 16 Jurisprudence ------------------------------------------------------------------------ 17 UNCLOS ----------------------------------------------------------------------------- 17 Schematic overview of zones into the sea ---------------------------------------- 21 The legal framework applied to the North Pole UN Charter --------------------------------------------------------------------------- 22 Customary International Law ------------------------------------------------------ 22 General Principles ------------------------------------------------------------------- 23 Jurisprudence ------------------------------------------------------------------------ 23 UNCLOS ----------------------------------------------------------------------------- 24 Conclusions -------------------------------------------------------------------------- 29 Bibliography -------------------------------------------------------------------------- 30 Annex A: overview map of the North Pole area. --------------------------------------- 34 Annex B: map with overlapping sovereignty claims in the Arctic --------------------- 35 15 May 2013 2 What legal framework governs the North Pole? ------------------------------------------ Introduction ------------------------------------------ Why is there such a growing interest in the North Pole? The North Pole is a hostile area for people and in many cases practically impassable for man, but the earth is slowly warming up, the icecap on the North Pole is melting or at least the size is diminishing considerably. Mankind is gaining more and more access to the North Pole area. The North Pole area has an unknown quantity of oil, gas and other minerals that may come within reach. The U.S. Geological Survey assesses that the North Pole area north of the Arctic Circle accounts for about 13 percent of the undiscovered oil, 30 percent of the undiscovered natural gas, and 20 percent of the undiscovered natural gas liquids in the world. 1 Besides minerals, more access to the North Pole area could also be beneficial for fishing and tourism. The profits that can be gained at the North Pole are therefore possibly huge. Furthermore, the socalled North-West Passage, north of Canada, could become navigable all year through and thus shorten the commercial route between eastern Asia and Western Europe considerably, by some 40%.2 Commercial shipping between Asia and Europe could become much cheaper. Parts of the North Pole area belong to the territorial waters or the exclusive economic zone of a state, in accordance with international law 3 but a large area belongs to no one, yet. At least 5 nations are claiming parts of the North Pole area: Canada, Denmark, Norway, the Russian 1 U.S. Geological Survey, 23 July 2008, www.ugs.gov/newsroom 2 Ebinger Zambetakis, The Geopolitics of Arctic Melt , International Affairs no: 85, june 2009, page 1221. 3 Especially UNCLOS, the United Nations Convention on the Law Of the Sea, that came into force in 1994. 15 May 2013 3 What legal framework governs the North Pole? federation and the United States of America. Russia already put in 2007 a flag on the seabed on the North Pole, to support symbolically its claim. Some of these claims are conflicting and could lead to tensions between states because of the enormous interests that are at stake. Is there another, new Great Game developing?4 The growing interest of a number of states for the North Pole and the increasing amount of activities in and towards that area, leads to the following central question for this thesis: What is the legal framework that governs the North Pole area? First the geographic area of the North Pole will be defined and compared to its counterpart on the other side of earth, the South Pole. Then the question will be addressed: What are the problems if several states claim parts of the North Pole? Because states claim sovereignty over (parts of) the North Pole area, we will then discuss the doctrine of acquiring territory and of sovereignty, including two main expressions of a state’s sovereignty: jurisdiction and military power. Because the North Pole area is predominantly water, we will see what the legal framework is for the sea, in general terms (the UN charter) and in more detail: the United Nations Convention on the Law Of the Sea (UNCLOS). UNCLOS is the overarching international convention governing the sea, also the Arctic Ocean, and will therefore be analysed in some detail: the claims that are derived from it, the sovereignty in various parts of the sea, and its application to the North Pole. Besides the charter and the convention, customary law, general principles and jurisprudence will be addressed as well. The result will be a clear understanding of the legal framework for the North Pole area, including the notion that territorial claims not only apply to land but also to water, and the conclusion that a regional arms control treaty for the North Pole area is missing. 4 The Great Game was a term for the strategic rivalry and conflict between the British Empire and the Russian Empire for supremacy in Central Asia in the 19th century. The term is usually attributed to Arthur Conolly (1807–1842), an intelligence officer of the British East India Company's Sixth Bengal Light Cavalry. It became more generally known by the British novelist Rudyard Kipling in his novel Kim (1901). See also Peter Hopkirk, The Great Game – On secret service in High Asia , Oxford University Press, 2001; and Klaus Dodds, The Great Game in Antarctica: Britain and the 1959 Antarctic Treaty , Contemporary British History, Vol. 22, No: 1, March 2008, page 43-66. 15 May 2013 4 What legal framework governs the North Pole? ------------------------- What is exactly the North Pole area? ------------------------- The North Pole is the northernmost point of the earth, where the axis of rotation of the earth meets the surface. While the South Pole lies on a continental landmass, the North Pole is located in the middle of the Arctic Ocean and is almost permanently covered with a thick layer of constantly shifting sea ice. The North Pole area has generally been an impassable area for mankind. The earth is home to two North Poles located in the Arctic region - a geographic North Pole and a magnetic North Pole. The geographic North Pole is about 450 miles (725 km) north of Greenland in the middle of the Arctic Ocean - the sea there has a depth of 13,410 feet (4087 meters). Located hundred of miles south of the geographic North Pole lies the magnetic North Pole at approximately 82.7° North and 114.4° West (2005), northwest of Canada's Sverdrup Island. However, this (for a larger map, see Annex A) location is not fixed and is moving continually, even on a daily basis. 5 Although important for navigation purposes, the magnetic North Pole does not play a role in this thesis. With the geographic North Pole being a point , in the middle of an (Arctic) ocean, the question is what exactly the North Pole area is. The North Pole area is in many documents, articles and books referred to as the Arctic . In various sources there are generally three definitions of the Arctic. The Arctic may be defined as the area north of the tree line (where trees cannot grow) or where daily average temperatures in the summer do not get higher than 10º Celsius (50° Fahrenheit). Most authoritative sources 6 use the third definition: The Arctic is the area around the North Pole and bounded to the south by an imaginary line located at 66º, 30'N latitude: the Arctic Circle. In this thesis this 3 rd definition will be used as well because most countries that are directly involved in the Arctic region and are cooperating in the Arctic Council, use this definition. Two Arctic States have a different view: The U.S. Congress has decreed that all of the Bering Sea, which extends southward to about 53 degrees North Latitude, is part of the Arctic for internal U.S. planning and budgeting purposes. 7 Iceland does not agree with such a definition and wants to widen the Arctic Region further south, to strengthen its interests. 8 If one takes the Arctic Circle as the southern boundary, then large parts of land of eight countries fall within that area, including approx 4 million people permanently living there. 9 Five countries are coastal states to the Arctic Ocean: Canada,
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