Avoiding the New Cold War: Environmental Conflict Resolution and the Need for an International Legal Regime in the High

By Sam Mulopulos Grinnell Peace Studies Conference 2012

It is an indisputable axiom of science that the planet is warming.1 And while experts can debate the radix of such increase in earthly temperatures, this paper believes the origins of the coming planetary catastrophe irrelevant. Rather it is the results of such climatic change, particularly in the Arctic, that this paper finds to be of unique interest.

While global warming will engender a variety of environmental misfortunes, nowhere in the world will the effects of a modified climate be as acute and amplified as in the Arctic.

Already the region is experiencing the effects of global warming.2 Thus the High Arctic is the frontline in the fight for the planet, and how nations respond to the concomitant results of there will dictate the global response to future situations.

Currently two unique predicaments face the five Arctic coastal states.3 Both problems are consequences of melting sea ice resulting from the escalation of global temperatures.

The deliquescence of sea ice has precipitated greater resource exploration of the

Arctic Ocean basin and the subsequent discovery of a potential 400 billion barrels of oil beneath the sea floor.4 The unearthing of vast reserves of subsea hydrocarbons has transformed the perception of the Arctic from an inhospitable wasteland to a cornucopia of mineral wealth. Already Russia, Canada, and Denmark have begun to maneuver to secure a piece of the potential windfall. Such behavior has contributed to a host of sovereignty debates, and as with any contention in which valuable resources are involved, tensions are high.

1 Hansen, James. "Global Temperature Chane." Proceedings of the National Academy of Sciences 103.39 (2006): 14288-14293. Print. 2 Gunitskiy, Vsevolod. "On Thin Ice: Water Rights and Resource Disputes in the ." Journal of International Affairs 61.2 (2008): 261. 3 These states are the United States, Canada, Russia, Norway, and Denmark. Denmark is considered an Arctic state because of its authority over semi-autonomous . 4 Norwegian company Statoil suggests that there might be up to one quarter of the worlds oil beneath the ocean. Ibid., 263. But chemical resources are not the only instigators of Arctic environmental conflict. Melting sea ice is creating new physical resources as well, such as the

Northwest Passage, thus enhancing Arctic navigation. The , that elusive strait which so befuddled early explorers, has become a reality. In the coming decades, the passage will be entirely devoid of summer sea ice and instead be filled with cumbersome cargo ships desiring to reduce the voyage from the Atlantic to the Pacific

Ocean by a potential 7,000 kilometers.5

Figure 1: The Northwest Passage. The red line shows the potential transit route. The islands, which the route circumvents, are indisputably Canadian.6

The dynamics of this dispute are different because the debate involves just the

United States and Canada. Canada asserts that the Northwest Passage is internal

Canadian waters, meaning that foreign vessels entering the Passage would be forced to pay a tariff, and the Canadian government could deny access to the strait to any yearning navigators.7 Conversely the United States asserts that the Passage is an international

5 Cotter, James. "Developing a Coherent Plan to Deal with Canada's Conundrum in the Northwest Passage." Journal of Military and Strategic Studies 11.3 (2009): 1. 6 Zorzetto, Alicia. "The Dispute over the Northwest Passage." The Inventory of Conflict and Environment. N.p., n.d. Web. 8 Feb. 2012. http://www1.american.edu/ted/ice/northwest-passage.htm Lopez, Barry. Arctic Dreams. New York: Scribner, 1986, 46. 7 Kraska, James. "The Law of the Sea Convention and the Northwest Passage." The International Journal of Marine and Coastal Law 22.2 (2007): 257. strait, which would permit watercraft of any nation to use it, without having to pay duties to any overseeing government.8

The established framework for resolving these resource claims and territorial disputes rests with the United Nations Convention on the Law of the Sea (UNCLOS), a

1982 document outlining international maritime law.9 In regards to the exploitation of subsea hydrocarbons, UNCLOS explains that coastal states possess an Exclusive

Economic Zone (EEZ) that extends 230 miles out to sea along the nation’s continental shelf. However, countries can petition the United Nations Commission on the Limits of the Continental Shelf (UNCLCS) for an additional 350 mile expansion of their EEZ.

Eligibility for an EEZ augmentation must be reinforced with credible geologic evidence that “the area in question is connected to their [a state’s] own continental shelf.”10 This is currently the procedure by which Russia has attempted to claim much of the Arctic

Ocean and the accompanying oil. This paper will cover some techniques and policies, which will serve to mitigate these conflicts.

The above has served to establish a secure background in the conundrums of a changing Arctic climate. The core purpose of this paper is to identify and outline solutions to these problems. At the heart of Arctic environmental conflict resolution is the need for a strengthened international legal regime. An enforceable treaty among

Arctic states will set an enduring course for alleviation of regional quarrels and will persist as an exemplar for climate change management. To this end I have selected five strategies for Arctic conflict resolution. The strategies are:

8 Ibid., 263. 9 United Nations. “The United Nations Convention on the Law of the Sea.” Signed 10 December 1982. 25-26. 10 Gunitskiy, Vsevolod. "On Thin Ice: Water Rights and Resource Disputes in the Arctic Ocean." Journal of International Affairs 61.2 (2008): 262.

Ratification of UNCLOS by the United States

While deeply comprehensive, UNCLOS remains a weak document because the

United States has never ratified the treaty. Since the Senate voted against ratification in

1983 the US has been effectively excluded from much of the Arctic sovereignty debate.

And while the Bush administration tried to resurrect the document, no significant progress has been made towards ratification in almost 30 years.11 An expeditious formalization of the UNCLOS treaty would benefit the United States in two ways. First, the treaty would allow the US to lay claim to any resources that may exist off Alaska’s northern coast. Since 2007, the US Coast Guard Cutter Healy has been operating in

Northern waters mapping the Chukchi Cap, a mysterious and ice covered undersea formation, which may contain potentially valuable resources.12

Figure 2: The Chukchi Cap. US scientific expeditions may not only discover new resources, but also prove that the Cap is an extension of Alaska’s continental shelf.13

11 Reynolds, Paul. "Russia Ahead in Arctic 'Gold Rush'." BBC News. British Broadcasting Company, n.d. Web. 7 Feb. 2012. http://news.bbc.co.uk/2/hi/6925853.stm. 12 "United States Explores the Seabed of the Arctic Ocean to Bolster its Claims to the North's Strategic Resources." Canadian American Strategic Review. N.p., n.d. Web. 8 Feb. 2012. http://www.casr.ca/id- arctic-empires-3.htm. 13 Ibid. Furthermore, the Chukchi Cap may be a geologic extension of Alaska’s continental shelf. Under the current UNCLOS language, the US could submit their geological evidence to the UNCLCS, which would decide whether the claim was valid.

A positive ruling from the UNCLCS would allow the US to extend their current EEZ another 350 kilometers to gain access to whatever resources might exist beneath the

Chukchi Cap.

But one can only speculate because the research is still on going and currently there is no conclusive corroboration that the Chukchi Cap either contains natural resources or is connected to Alaska’s continental shelf. However, one thing is certain.

The United States is currently not party to UNCLOS and thus cannot petition for an extension of Alaska’s continental shelf or claim any potential subsea resources. If the US wants to participate in the Arctic ‘gold-rush’, as some analysts refer to it, the next administration will need to elevate the ratification of UNCLOS to the forefront of its agenda.

The second reason for US acceptation of UNCLOS is purely diplomatic. Because

UNCLOS forms the foundation of Arctic resource dispute resolution, any state not party to UNCLOS is effectively not involved in any international deliberations. Republican

Senator Richard Lugar supports ratification of the document citing Russia’s claims to

Arctic hydrocarbons. In a 2007 statement Lugar said “Unless the United States ratifies the treaty, Moscow will be able to press its claims without an American at the table.”14

The paramount motivation for ratification is, therefore, to ensure a US presence in future

Arctic negotiations.

14 Lugar, Richard G.. "Lugar: We Need Law of the Sea." The Washington Note. N.p., n.d. Web. 8 Feb. 2012. http://www.thewashingtonnote.com/archives/2007/05/lugar_we_need_l/. Ultra-nationalist critics of the treaty inquire, “if the U.S. ratifies the treaty and UNCLCS rules that Arctic riches belong to Russia, what does the U.S. do then?”15 The answer is simple. The US would do what would it currently does as a non-party to the treaty: nothing. If the United States ratifies UNCLOS, then at the very least the US can have voice at any negotiations and more effectively communicate its Arctic interests. Non- ratification means that the US will have to stand idly by as other states lay claim to the

Arctic, effectively depriving the United States of the opportunity to have a role in the

North. With Russia gearing up for a future Arctic power play, the consequences of an uninvolved United States could prove dire.16 US ratification of UNCLOS means a safer and more inclusive legal regime for all in the Arctic.

Strengthening of the

Established in 1996, the Arctic Council comprises the word’s eight Arctic states.17

The Council was established to create an Arctic specific international forum with which to enhance “cooperation, coordination, and interaction” among the relevant countries.18

At present the primary business of the Council regards Arctic scientific research and environmental protection of the regions understandably frangible ecosystems. Noticeably

15 "Seasick: The Law of the Sea Treaty." USA Survival News. N.p., n.d. Web. 8 Feb. 2012. http://www.usasurvival.org/ck09.24.07.shtml. 16 A good example of the consequences of non-ratification can be found in the Soviet Union’s boycott of the UN Security Council in 1950. As a result of not having a Soviet presence at the table, the Council authorized intervention in what became the Korean War. Had the Soviet’s not renounced the UN and boycotted the proceedings, events would have transpired quite differently. A scenario in the Arctic involving a non-party US could mimic the Security Council events of June 1950. Ambrose, Stephen E., and Douglas Brinkley. Rise to Globalism: American Foreign Policy Since 1938. 8th rev. ed. New York: Penguin Books, 1997. 17 These states are the United States, Canada, Russia, Denmark, Norway, , Finland, and Sweden. However only the first five countries possess Arctic coastline. Crawford, Alec, Arthur Hanson, and David Runnalls. “Arctic Sovreignity and Security in a Climate Changing World.” International Institute for Sustainable Development (2008): 7. 18 Ibid. absent from the Council’s agenda are security issues. To date the Arctic Council has eschewed regional security concerns in an effort to preserve the body’s decorum. Such behavior has enfeebled the Council’s ability to wholly address the region’s most pertinent issues.

In May of 2008, the five Arctic coastal states, or A-5 as they have become know, meet in Illulissat, Greenland where they signed the Illulissat Declaration. Despite its brevity, the Illulissat Declaration stands as one of the most successful instances of international legal cooperation in the Arctic.19

One key assertion of the Declaration was that the A-5 believe there is “no need to develop a new comprehensive legal regime to govern the Arctic Ocean.”20

Understandably, this claim has met much criticism. Dr. Neil Hamilton of the World

Wildlife Fund International Arctic Programme believes “the main existing framework for

Arctic governance is UNCLOS, which by itself cannot address the special problems and growing threats faced by the Arctic.”21 The Illulissat Declaration clearly states that the

A-5 does not support the creation of a new legal regime for the Arctic Ocean, because an effective regime, UNCLOS, already exists.

Despite the objections, the Illulissat Declaration is a model for Arctic dialogue and governance. Truthfully, there is no need for a new legal regime to govern the Arctic

Ocean. UNCLOS is an effective document for resolving maritime disputes. But

UNCLOS is merely the foundation of Arctic management. As the climate changes it is

19 Yeager, Brooks B. “The Declaration: Background and Implications for Arctic Governance.” Prepared for the Aspen Dialogue and Commission on Arctic Climate Change (2008): 2. 20 Arctic Council, The Ilulissar Declaration, May 28, 2008, available at http://arctic- council.org/filearchive/Ilulissat-declaration.pdf.

21 "The Ilulissat Declaration." Arctic Economics. N.p., 28 May 2008. Web. 9 Feb. 2012. http://benmuse.typepad.com/arctic_economics/2008/05/the-ilulissak-declaration.html. necessary for state’s to develop an international legal regime to govern the entire region, not just the sea. And while UNCLOS is a durable document, its content is not Arctic specific and thus it is an inadequate mechanism with which to administer the whole region. As argued above, the United States must ratify UNCLOS. When that action is taken, the underpinnings of Arctic governance will be complete. It then becomes important to reinforce and enable the Arctic Council, so that body may begin work on the crafting of an Arctic legal regime, one that goes beyond merely littoral management and encompasses a wide variety of Arctic issues including security policy, ecological management, and international collaboration in search and rescue efforts.

The Arctic Council is the perfect vehicle for the creation and promotion of a comprehensive legal regime. The Council includes both the A-5 and non-coastal Arctic states, non-governmental and indigenous observers, and both European and Asian countries that have Arctic interests. The framework is in place. Arctic states must attach greater significance to the Council and empower that body to begin to tackle all the thorniest issues of Arctic governance.

The Status of the Northwest Passage

Increased sea ice melting has enhanced the possibility of an ice-free Northwest

Passage within a little as two decades.22 Canada asserts that the Passage is internal to

Canada and thus Canada has complete control over all vessels and actions taken in the

Passage. Conversely, the United States maintains that the Passage is an international

22 Mark Serreze, a senior researcher at the University of Colorado’s National Snow and Ice Data Center said, “the notion of coming to an ice free Arctic Ocean even by 2030 is not totally unreasonable.” Than, Ker. "Arctic Meltdown Opens Fabled Northwest Passage." Live Science. N.p., 14 Sept. 2007. Web. 9 Feb. 2012. http://www.livescience.com/1884-arctic-meltdown-opens-fabled-northwest-passage.html. strait under the language of UNCLOS. If the US allows the Passage to be defined as internal Canadian waters it would set a hazardous and unacceptable precedent. Other strait nations could then assert their straits to be internal waters impeding the flow of commerce and the ability of the US to guard its national security interests. The possibility that Iran might declare the Strait of Hormuz or Malaysia declare the Straits of

Malacca to be internal waters would be absolutely disastrous to US foreign policy.

Therefore the US is adamant that the Northwest Passage is an international waterway.

A successful resolution of the Northwest Passage situation would go a long way to enhancing Arctic security and cooperation. The position of the United States “extends from the view that oceans and the bodies of water that connect them are part of the larger oceans common.”23 This is also the definition offered by UNCLOS. Canada’s claim to the Passage rests with the concept that because native Canadians live and work in the ice covered areas of the Passage, the liquid water of the route belongs to Canada. However, the notion of ‘ice territory’ is a “purely theoretical invention that has no basis in…customary international law.”24

To bolster its claim Canada has drawn the route of the passage in such a way as to infer that the water’s are internally Canadian. Even if UNCLOS and the International

Maritime Organization (IMO) support such a claim, which is unlikely, foreign vessels can still ply the waters under the concept of right to innocent passage. Innocent passage allows ships to pass through the territorial seas of foreign states as long as the visiting

23 Cotter, James. "Developing a Coherent Plan to Deal with Canada's Conundrum in the Northwest Passage." Journal of Military and Strategic Studies 11.3 (2009): 1. 24 Kraska, James. "The Law of the Sea Convention and the Northwest Passage." The International Journal of Marine and Coastal Law 22.2 (2007): 271. vessel remains peaceful.25 Once the US ratifies UNCLOS, that county will be able to press its claim that the Northwest Passage is an international strait, allowing ships transit passage which, “unlike innocent passage…may not be suspended by the state bordering the strait.”26

With the goal of resolving potential environmental conflict in the Arctic in mind, it would be prudent to classify the Passage as an international strait. True acceptance as an international strait would allow countries other than Canada to address Arctic environmental issues. Instead of complying with domestic Canadian law, transiting vessels would be subject to the international law agreed upon by relevant states under the auspices of the IMO. This would allow a more rapid and comprehensive response to environmental catastrophe in the High Arctic. As with any high traffic waterway known for adverse conditions there is the potential for disaster. A calamity like an oil spill could be more effectively dealt with if the Passage is an international strait.

The Jakarta Initiative, which was created to address issues in the Straits of

Malacca, provides a good example of potential models for Arctic governance.

Established in 2005, the Initiative

“launched a program of regular meetings and increased cooperation among littoral Straits

States, user states, the international shipping industry, and non-governmental

organizations. The three Straits States [Indonesia, Singapore and Malaysia] pledged to

increase cooperation and share information, and user states expressed a willingness to

assist the Strait States in providing technical support and building capacity for ensuring

the safety, security, and environmental protection of the Straits.”27

25 Ibid., 272. 26 Ibid., 275. 27 Ibid., 280. The Jakarta Initiative presents a well-used framework that may be effective in governing the Northwest Passage. And while Canada and the United States are too allied for the

Northwest Passage dispute to erupt into another more than diplomatic dialogue and legal maneuverings, a final resolution of the Passage as an international strait would be a serious victory for Arctic conflict resolution.

The Necessity for Indigenous Dialogue

The Arctic is unique because besides the nation-states that make up the region, there is also a vast proliferation of native peoples who, while citizens of their respective nations are trans-nationally, linked by culture. Therefore any action taken to address the effects of climate change and resolve environmental conflict in the region must integrate native interests and beliefs in addition to national ones. There can be no strong legal regime in the Arctic without indigenous input. First peoples, as the name suggests, have been an intrinsic part of the region for thousands of years, and thus their expertise in the region’s environmental affairs is of immeasurable value.

Although indigenous groups do have observer status within the Arctic Council, too often native interests are ignored. Native representation was irresponsibly absent at the formation of the Illulissat Declaration, and the US, Canada, and Russia have been slow to recognize international indigenous rights.28

Because resource exploitation “constitutes a serious threat to indigenous people’s livelihoods, culture, communities, and further existence”, it is important to improve the framework of the Arctic Council to ensure that first peoples are not excluded from

28 Baer, Lars-Anders. “Indigenous Address to the Barent Euro-Arctic Council.” 13 Session of the Barents Euro-Arctic Council. Kiruna, Sapmi. 12 October 2011. Statement. discussions.29 There can be no effective international legal regime in the Arctic without the contribution of native voices.

Increased Military Presence

While increasing the number of military personnel in the Arctic may seem antithetical to peace, it is not. Ever since Russia’s 2007 expedition, which used a submersible to plant the Russian flag on the Arctic Ocean floor and symbolically claim the seabed and its resources for Russia, that country has been improving its Arctic military capabilities. The US and Canada need to do the same for three reasons.

First, as states begin to negotiate over resources it will be important to supplement diplomatic soft power with a more concrete, ‘on the ground’ hard power. States with the ability to exercise authority over their territory have stronger claim for sovereignty than those that do not.30 Such reasoning has empowered Canada to begin a series of annual exercises in the High Arctic. Operation NANOOK, which has involved US elements, has been a stunning success.31 The existence of military assets in the Arctic, will improve both American and Canadian claims for sovereignty.

Secondly, with the discovery of hydrocarbons, human activity in the region will increase creating a need for an effective security apparatus. States must be able to protect

29 “Action Plan for Indigenous Peoples in the Barents Euro-Arctic Region 2009-2012.” Working Group for Indigenous Peoples in the Barents Euro-Arctic Region (2009): 5. 30 Kraska, James. "The Law of the Sea Convention and the Northwest Passage." The International Journal of Marine and Coastal Law 22.2 (2007): 265. 31 "In the Arctic, Difficult Choices Loom about U.S. Military Capability ." Center for a New American Security. N.p., 24 Aug. 2011. Web. 8 Feb. 2012. http://www.cnas.org/blogs/naturalsecurity/2011/08/arctic- difficult-choices-loom-about-us-military-capability.html. new international routes from environmental tragedy and crime in the same way that other seaways are policed.32

Lastly, the military is the most effective means by which to operate search and rescue (SAR) capabilities. Because of the Arctic’s dangerous meteorological conditions, increased human activity will inevitably result in accidents. Military assets, such as both the US and Canadian Coast Guard, are the best trained and equipped to preform SAR missions and guarantee the safe return of stranded civilians.33

Conclusions

The Arctic needs a comprehensive international legal regime. As the climate changes, and new resources, both natural and transitory, become available it is necessary to mitigate environmental conflict. Currently the Arctic is fractured with sovereignty claims and Arctic states must take measures to prevent conflict and the degradation of the region’s unique ecosystems.

The new comprehensive legal regime must be rooted in UNCLOS, which governs the Arctic Ocean. With a stable foundation in existing international law, states can work upwards using current international fora, such as the Arctic Council, to develop further agreements. The five ideas presented above are recommendations, which outline the actions that states should take in order to progress towards the establishment of an effective legal mechanism. The globe is warming, and if mankind is to comprehensively address the consequences of climate change, than it is necessary for states to take prudent

32 United States. Department of Defense. Report to Congress on Arctic Operations and the Northwest Passage. Washington: GPO, 2011. 10. 33 United States. Department of the Navy. U.S. Navy Arctic Roadmap. Washington: GPO, 2009. 12. and prompt action towards the development of a robust international legal regime in the

High Arctic.

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