The Arctic Ocean belongs to whom
With no regard to imperialism, the five Arctic coastal states commit to defining their sovereign rights to the Arctic Ocean within the framework of the international law of the sea. Irrespective of this, all states are concerned by maritime jurisdiction in the Arctic.
In August 2007 Russian scientists sent a submarine to the Arctic Ocean seabed at 90° North to gather data in support of Russia’s view that the North Pole is part of the Russian continental shelf. The expedition provoked a hostile reaction from some of Russia’s Arctic neighbours and prompted much media speculation about the possibility of a “new Cold War” over the resources of the Arctic.
While there are a number of disputes over maritime jurisdiction in the Arctic region – and potential for more as states define the areas in which they have exclusive rights over the resources of the continental shelf more than 200 nautical miles from their coastal baselines – the reality is not nearly as anarchic as some commentators have suggested. In fact, the Arctic littoral states have all committed to define their jurisdictional rights in the Arctic Ocean within the framework of the international law of the sea (through the Ilulissat Declaration of 28 May 2008) and so far they have all abided by that commitment.
Following the publication of numerous ill-informed and inaccurate articles about maritime jurisdiction in the Arctic, in August 2008 the International Boundaries Research Unit at Durham University in the UK prepared a detailed map and a set of briefing notes offering an objective overview of the current state of play in the region. The map, constructed using specialist Geographic Information Software tools, identifies agreed maritime boundaries, known jurisdictional claims and disputes, and potential areas of Arctic seabed that might be claimed in the future. The map received global media attention and in the three days following its publication the map was downloaded more than 40,000 times.
This short paper summarises the key issues relating to maritime jurisdiction and boundaries in the Arctic region identified in IBRU’s map and briefing notes.
The Russian flag is "floating" at a depth of 4261 meters at the geographic North Pole since it was deposited in the seabed the 2nd of August 2007 - © Editions Paulsen
The Law of the Sea and maritime jurisdiction
The primary international legal instrument governing maritime jurisdiction and boundary delimitation is the 1982 United Nations Convention on the Law of the Sea (UNCLOS) which entered into force in November 1994. All of the Arctic littoral states are parties to UNCLOS except for the USA. However, most of the provisions relating to maritime jurisdiction in UNCLOS are now part of customary international law, and therefore binding on all states.
Under UNCLOS, a coastal state is entitled to a sovereign territorial sea extending up to 12 nautical miles (nm) from its coastal baseline. The normal baseline is the low-water line along the coast as marked on large-scale charts, but straight baselines can also be drawn across the mouths of rivers and some bays, and along coastlines which are “deeply indented and cut into” or fringed with islands.
Beyond the territorial sea, the coastal state is entitled to claim an exclusive economic zone (EEZ) extending up to 200 nm from its baselines. In the EEZ the coastal state has:
“sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superadjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds.” (UNCLOS Article 56, paragraph 1)
The coastal state also has sovereign rights to explore and exploit the natural resources of its continental shelf, which is defined in UNCLOS as:
“…the seabed and subsoil of the submarine areas that extend beyond its territorial sea to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.” (UNCLOS Article 76, paragraph 1)
These rights exist regardless of whether the state has made a formal claim to an area of continental shelf or not(UNCLOS Article 77(3)). However, where a state’s physical continental shelf extends beyond 200 nm from its baselines, the area of jurisdiction beyond 200 nm needs to be defined in consultation with the United Nations Commission on the Limits of the Continental Shelf. The rather complex rules regarding the limits of entitlement to continental shelf beyond 200 nm are set out in Article 76 of UNCLOS. Areas of seabed which lie beyond the jurisdiction of any state form “The Area”, which is the common heritage of mankind; rights to exploit the resources of The Area are managed by the International Seabed Authority.
Defining the outer limit of the continental shelf
Under Article 76 of UNCLOS, where the continental margin of a coastal state extends beyond 200 nm from the state’s territorial sea baseline, the outer limit of the continental shelf is defined with reference to two sets of points: (i) points 60 nm from the foot of the continental slope; (ii) points at which the thickness of sedimentary rocks is at least 1% of the shortest distance from the points in question to the foot of the continental slope. The foot of the continental slope is defined in UNCLOS as “the point of maximum change in the gradient at its base”.The outer limit of the continental shelf is defined by a series of straight lines (not exceeding 60 nm in length) connecting the seawardmost of the points in the two sets described above. IBRU’s map does not attempt to depict such lines, which can only be identified with precision through bathymetric and seismic surveys. However, it is possible to depict the ‘cut-off’ limit beyond which states may not exercise continental shelf jurisdiction regardless of the location of the foot of the continental slope and the thickness of sediment seaward of that point. The cut-off limit is the seawardmost combination of two lines: (i) a line 350 nm from the state’s territorial sea baseline; (ii) a line 100 nm seaward of the 2,500 metre isobath. Both the 350 nm line and (where it runs seaward of the 350 nm line) the 2,500 m + 100 nm lines are depicted on IBRU’s map. M.P.
Where zones of jurisdictional entitlement overlap, the states in question need to agree a maritime boundary. For the territorial sea, unless historic title or other special circumstances apply, the ‘default’ boundary is the “median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured” (UNCLOS Article 15). However, for the exclusive economic zone and continental shelf, UNCLOS simply states that delimitation:
“...shall be effected by agreement on the basis of international law, as referred to in Article 38 of the International Court of Justice, in order to achieve an equitable solution.”
The concept of “an equitable solution” is clearly open to differing interpretations, and states often disagree strongly about what represents an equitable division of maritime space in their particular setting. However, in recent years, courts and tribunals charged with delimiting a maritime boundary have invariably begun their deliberations by identifying the median line between the two coasts, and have only defined a boundary departing from that line if they are persuaded that there are relevant circumstances which justify such a departure. In this context, a government which seeks to establish a maritime boundary which does not follow the median line will usually be required to demonstrate that its proposed boundary is more equitable than the median line. Circumstances which might justify a departure from the median line include: a marked disparity in the lengths of the relevant coastlines; unusual coastal configurations; and the presence of small islands which have a disproportionate effect on the alignment of the median line.
Maritime jurisdiction in the Arctic Ocean
The five Arctic Ocean littoral states – Canada, Denmark, Norway, Russia and the USA – all claim 12 nm territorial seas and EEZs/fishery zones (see the map below) out to 200 nm. All five also appear likely to define areas of seabed beyond 200 nm as part of their continental shelves, although to date only Russia and Norway have done so. Russia made the first ever submission to the UN Commission on the Limits of the Continental Shelf (CLCS) in 2001, defining a vast area of seabed (1.3 millions sq km) extending up to 90°N as part of the Russian continental shelf. The Commission asked Russia to provide additional evidence to support its submission relating to its Arctic continental shelf; a revised submission has yet to be made. Norway made a submission to the CLCS in 2006 defining rights over the continental shelf in the “banana hole” between mainland Norway, Jan Mayen and Svalbard, and a smaller area of continental shelf north beyond 200 nm in the Arctic Ocean north of Svalbard. The CLCS has yet to issue recommendations concerning the Norwegian submission.
Norway (Svalbard), Russia and Denmark (Greenland) are likely to claim sovereignty over the North Pole seabed as a natural extention of their continental shelf - © IBRU
Until the summer of 2008, states had ten years from the date of their ratification of / accession to UNCLOS to make a submission to the CLCS. This would have meant that Canada would have until 2013 and Denmark until 2014 to make their submissions. However, the States Parties to UNCLOS agreed in June 2008 that states only have to submit a “preliminary information indicative of the outer limits of the continental shelf beyond 200 nautical miles and a description of the status of preparation and intended date of making a submission” within the ten-year period. No formal deadline for a full submission now exists. In theory, therefore, it could be many years before a clear picture emerges of the extent of the areas of seabed beyond 200 nm which fall under state jurisdiction. In practice, Canada and Denmark are likely to make full submissions to the CLCS in the next few years, and the USA also appears to be preparing to make a submission once it has ratified UNCLOS.
The depicted potential areas of continental shelf beyond 200 nautical miles (nm) for Canada, Denmark and the USA on IBRU’s map are theoretical maximum areas assuming that none of the states claims continental shelf beyond median lines with neighbouring states where maritime boundaries have not been agreed. In reality, the geomorphology of the continental margins of the three states may well prevent them from securing rights to all of the areas shown. It is also possible that one or more states will claim areas beyond the median lines.
Agreed boundaries and jurisdictional regimes
Canada and Denmark agreed a continental shelf boundary between the land territory of Canada and Greenland up to the northern entrance to Nares Strait at 82º 13’ N in 1973. Although no maritime boundary has been agreed between the two countries in the Arctic Ocean, neither has claimed EEZ beyond the median line. The two countries dispute sovereignty over the tiny Hans Island in the Kennedy Channel at 80º 49’ N. However, the 1973 boundary agreement divided continental shelf rights up the low-water line on the island, effectively making the sovereignty dispute irrelevant in terms of maritime jurisdiction.
The definition of a maritime boundary is based on the principle of the median line, that every point is equidistant from the nearest points on the coastlines from each of the two states measured, whether they are bordering(1) or opposite(2)
Iceland and Norway defined a continental shelf boundary in 1981, but agreed that each country is entitled to a 25% share in petroleum activities on the other’s continental shelf within a 32,750 km² area between latitudes 68° N and 70° 35’ N and longitudes 6° 30’ W and 10° 30’ W. The idea of a joint development zone straddling the boundary was proposed by a conciliation commission set up by the two governments when they were unable to reach a negotiated boundary settlement. The continental shelf boundary itself is located 200 nm from the coast of Iceland but less than 100 nm from Jan Mayen, reflecting the significant disparity in the lengths of the relevant coastal fronts (more than 18:1 in Iceland’s favour).
The USA and USSR agreed a single boundary for all zones of maritime jurisdiction in 1990; in the Arctic Ocean the boundary follows the 168° 58’ 37” W meridian to the outer limit of overlapping continental shelf entitlement, which is as yet undefined. The agreement has yet to be ratified by the Russian parliament but its provisions have been applied since 1990 through an exchange of diplomatic notes.
The USA and the USSR agreed to a single boundary for all zones of maritime jurisdiction in 1990 in the Arctic Ocean which extends to the outer limit of an overlapping continental shelf entitlement - © IBRU
Denmark and Norway agreed continental shelf and fishery boundaries between Greenland and Jan Mayen in 1995 following adjudication by the International Court of Justice, and continental shelf and fishery boundaries between Greenland and Svalbard in 2006. Under a treaty signed in February 1920, Norway has sovereignty over the Svalbard archipelago and all islands between latitudes 74° and 81° north and longitudes 10° and 35° east. However, citizens and companies from all treaty nations enjoy the same right of access to and residence in Svalbard. Right to fish, hunt or undertake any kind of maritime, industrial, mining or trade activity are granted to them all on equal terms. All activity is subject to the legislation adopted by Norwegian authorities, but there may be no preferential treatment on the basis of nationality. Norway is required to protect Svalbard’s natural environment and to ensure that no fortresses or naval bases are established. 39 countries are currently registered as parties to the Svalbard treaty.
The "Grey Zone" is the result of a fishing regime agreement signed in 1978 by the USSR and Norway in this important fishing area yet the two states remain in dispute over the maritime boundary in the Barents Sea. - © IBRU
Jurisdictional and boundary disputes
Norway and the Soviet Union disagree on the alignment of their maritime boundary in the Barents Sea: Norway claims the boundary should follow the median line, while Russia seeks a ‘sector’ boundary extending due north (but deviating around the 1920 Svalbard Treaty area). As the Barents Sea is an important fishery for both states, in January 1978 the two governments agreed on a fishing regime in the so-called “Grey Zone”, a 19,475 nm² area covering 12,070 nm² of overlapping EEZ claims, 6,588 nm² of undisputed Norwegian EEZ and 817 nm² of undisputed Russian EEZ. Within the Grey Zone Norway and Russia have jurisdiction over their own fishing vessels.
Canada argues that a maritime boundary in the Beaufort Sea was delimited in the 1825 treaty between Great Britain and Russia defining the boundary between Alaska and the Yukon as following the 141° W meridian “as far as the frozen ocean”. The USA argues that no maritime boundary has yet been defined and that the boundary should follow the median line between the two coastlines. The area of overlap between the two claims is more than 7,000 nm².
Canada claims that the waters of its Arctic archipelago are historic internal waters, and has enclosed them within a system of straight baselines. Under normal circumstances there is no automatic right of innocent passage through internal waters for foreign ships.
Canada and Greenland (Denmark) dispute sovereignty over the tiny Hans Island in the Kennedy Channel at 80º 49’ N but develop scientific collaborative programs on the island - © IBRU
However, other states (particularly the USA) argue that the channels in the archipelago which form part of the ‘Northwest Passage’ through the Arctic qualify as straits used for international navigation under Part III of UNCLOS, and that there is therefore a right of transit passage through the straits for foreign ships. While the Northwest Passage was under permanent ice cover, the debate was largely academic – but with the polar ice cap retreating and the Passage becoming increasingly navigable, the question of which legal regime applies has become increasingly pressing. Similar issues affect the straits of the ‘Northeast Passage’ around Russia’s Arctic coastline.
The international dimension
This paper has focused on the jurisdictional entitlements of the Arctic littoral states, but it is important to remember that these states do not ‘own’ the Arctic Ocean. State sovereignty only extends up to 12 nm from the coastal baseline, and even in the territorial sea there is a right of innocent passage for foreign vessels. Beyond the territorial sea vessels from all states have complete freedom of navigation – and if the Arctic sea ice continues to melt, many states are likely to develop navigational interests in the region.
Although the Arctic Ocean littoral states have sovereign rights to exploit the living and non-living resources of a 200 nm-wide band of the Arctic Ocean adjacent to their coastlines – and potentially have sovereign rights over the resources of much of the central Arctic Ocean seabed – all states still an interest in the region’s marine resources. Some areas of the Arctic Ocean seabed will be designated as the common heritage of mankind, and even those areas of continental shelf beyond 200 nm which fall under coastal state jurisdiction will generate income for non-Arctic states if their resources are exploited for more than five years (see UNCLOS Article 82 for details).
In this context, all states have an interest in maritime jurisdiction in the Arctic. While the rights of the Arctic coastal states need to be respected, responsibility for the future of the region is not theirs alone.
Visitit the IBRU website
Download the IBRU map “Maritime juridiction and boundaries in the Arctic Region” in PDF
Visit the UNCLOS website
By Martin Pratt, Director of Research at the International Boundaries Research Unit (IBRU) of the Department of Geography of Durham University (UK) and an adviser to the Task Force on International Boundaries of the United Nations Geographic Information Working Group.
Martin Pratt © January 2010 - Le Cercle Polaire - All Rights Reserved