Is it time to cut the gordian knot of polar sovereignty?

Review of European Community and International Environmental Law

Volumn 17, Issue 1, 2008, Pages 27-40

  Jabour, Julia ^a   Weber, Melissa ^b  

^a ANTARCTIC CLIMATE AND ECOSYSTEMS COOPERATIVE RESEARCH CENTRE   (Australia)

^b Institute of Antarctic and Southern Ocean Studies and ACE CRC

Author keywords

[No Author keywords available]

Indexed keywords

ARCTIC ENVIRONMENT; ENVIRONMENTAL MANAGEMENT; INTERNATIONAL AGREEMENT; POLAR REGION; RESOURCE USE; SOVEREIGNTY;

GORDIA;

EID: 42349108617     PISSN: 09628797     EISSN: 14679388     Source Type: Journal    
DOI: 10.1111/j.1467-9388.2008.00579.x     Document Type: Article

References (151)

1. P. Wilson, 'British Lay Claim in Race for Antarctic Seabed', The Australian (18 October 2007), at ; J. Graff, 'Fight for the Top of the World', Time Magazine (October 2007), 20; T. Parfitt, 'Miles Below the North Pole, Russian Mini-Subs Lay Claim to Arctic Wealth', Guardian Unlimited (3 August 2007), at ; E. MacAskill, 'Canada Uses Military Might in Arctic Scramble', Guardian Unlimited (11 August 2007), at .
2. J. Grob, 'Antarctica's Frozen Territorial Claims', 30:2 Boston College International and Comparative Law Review (2007), 461; B.H. Dubner, 'On the Basis for Creation of a New Method of Defining International Jurisdiction in the Arctic Ocean', 13:1 Missouri Environment Law and Policy Review (2005), 1.
3. M.A. Verhaag, 'It's Not Too Late: The Need For a Comprehensive International Treaty to Protect the Arctic Environment', 15:3 Georgetown International Environmental Law Review (2003), 555, at 575; and see B.H. Duber, n. 2 above, at 1.
4. See B.H. Dubner, n. 2 above; J. Grob, n. 2 above; and M.A. Verhaag, ibid.
5. J. Vogler, The Global Commons: A Regime Analysis (Wiley, 1995), at 2, 5 and 10.
6. Ibid., at 5.
7. Ibid., at 4.
8. P.M. Wijkman, 'Managing the Global Commons', 36:3 International Organisation (1982) 511, at 512-513.
9. There is much literature on the application of these concepts, but for one approach see J. Vogler, n. 5 above, at 11-20.
10. Ibid., at 12.
11. United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982) (UNCLOS) and the Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 (New York, 28 July 1994) (Implementing Agreement). Part XI defines the common heritage of mankind (Article 136) and prescribes the common property regime for the deep seabed and subsoil as beyond national jurisdiction. The International Seabed Authority is the institution that oversees the implementation of the regime and the distribution of benefits arising from exploitation of the common resources defined therein.
12. See B.H. Dubner, n. 2 above; M.A. Verhaag, n. 3 above.
13. B.H. Dubner, ibid., at 18.
14. Ibid., at 11-12.
15. See J. Grob, n. 2 above, at 461; and see G. Mosley, Antarctica: Securing its Heritage for the Whole World (Envirobook, 2007).
16. See J. Grob, n. 2 above, at 463.
17. See J. Vogler, n. 5 above, at 17.
18. Ibid., at 8; and see K. Suter, Antarctica: Private property or public heritage? (Pluto Press, 1991).
19. See J. Vogler, n. 5 above, at 17.
20. North of this isotherm, average temperatures in July remain lower than 10°C.
21. O.R. Young, 'The Structure of Arctic Cooperation: Solving Problems/ Seizing Opportunities' (paper presented at the request of Finland in preparation for the fourth conference of Parliamentarians of the Arctic Region, Rovaniemi, 27-29 August 2000), at 3.
22. See M.A. Verhaag, n. 3 above, at 556.
23. O.R. Young, 'Governing the Arctic: From Cold War Theater to Mosaic of Cooperation', 11:1 Global Governance (2005), 9, at 10.
24. W.E. Burhenne, 'The Arctic: Towards a new environmental regime?', 37:2-3 Environmental Policy and Law (2007), 249.
25. See O.R. Young, n. 23 above, at 10.
26. O.S. Stokke, 'A Legal Regime for the Arctic? Interplay with the Law of the Sea Convention', 31:4 Marine Policy (2007), 402, at 404.
27. See UNCLOS, n. 11 above, Article 3.
28. Ibid., Part V: Exclusive Economic Zone, Articles 56-75.
29. Ibid., Part VI: Continental Shelf, Articles 76-85.
30. Ibid., Article 76(1).
31. Ibid., Article 76(4).
32. Ibid., Article 76(5).
33. Ibid., Article 76(8), Article 3, Annex II; and see Commission on the Limits of the Continental Shelf, 'Rules and Procedure of the Commission on the Limits of the Continental Shelf' (CLCS/40, 2 July 2004), Rule 53.
34. Ibid., Article 76(8).
35. See Russian Federation, 'Executive Summary', Submission to the Commission on the Limits of the Continental Shelf (20 December 2001), available at . See also the statement made by the Deputy Minister for Natural Resources of the Russian Federation during the presentation of the submission made by the Russian Federation to the Commission, made on 28 March 2002 (UN Doc. CLCS/31, 05 April 2002), available at .
36. The Lomonosov Ridge is a 1240-mile underwater mountain range that crosses the Arctic. Russia claims it is an extension of the Eurasian continent and therefore part of Russia's continental shelf.
37. See, in particular, the USA Note Verbale commenting that the geological understanding of the Arctic Basin and its ridges (including the Alpha Mendeleev and the Lomonosov Ridges) is, at this time, not comprehensive. See USA, 'Notification Regarding the Submission made by Russia to the Commission on the Limits of the Continental Shelf' (CLCS.01.2001.LOS/ USA, 18 March 2002), available at . See also Norway, 'Notification Regarding the Submission made by the Russian Federation to the Commission on the Limits of the Continental Shelf' (CLCS.01.2001.LOS/NOR, 2 April 2002)
38. See J. Graff, n. 1 above; T. Parfitt, n. 1 above; and E. MacAskill, n. 1 above.
39. J. Graff, ibid., at 27.
40. The LORITA-1: Lomonosov Ridge Test of Appurtenance conducted cooperatively between Denmark and Canada from March to May 2006 in accordance with a Memorandum of Understanding signed between Representatives from the Natural Resources of Canada and the Geological Survey of Denmark and Greenland signed in Ottawa (27 June 2005). See Government of Canada, 'Undersea Data: Canada and Denmark Agree on Joint Survey' (press release 2005/57, 14 July 2005), available at ; and see Ministry of Science, Technology and Innovation, Denmark, 'The Continental Shelf Project: LORITA-1 Cooperation with Canada' (Ministry of Science, Technology and Innovation, undated), available at . The Lomrog (Lomonosov Ridge off Greenland) Danish-led mission conducted in August 2007 involved 45 specialists from Canada, Denmark and Sweden and was supported by Russian and Swedish icebreakers. See BBC News, 'Danish Team Heads for North Pole' (13 August 2007), available at .
41. A.G. Oude Elferink, 'The Outer Continental Shelf in the Arctic: The Application of Article 76 of the LOS Convention in a Regional Context', in A.G. Oude Elferink and D.R. Rothwell, The Law of the Sea and Polar Maritime Delimitation and Jurisdiction (Kluwer Law International, 2001), 139, at 145. See also G. Mingay, 'Article 82 of the LOS Convention - Revenue Sharing - The Mining Industry's Perspective', 21:3 The International Journal of Marine and Coastal Law (2006), 335, at 339.
42. See UNCLOS, n. 11 above, Article 82.
43. See G. Mingay, n. 41 above, at 336 and 346. See also A. Chircop and B.A. Marchand, 'International Royalty and Continental Shelf Limits: Emerging Issues for Canadian Offshore', 26:FAll Dalhousie Law Journal (2003), 273, at 300. For a detailed description of pending issues see M.W. Lodge, 'The International Seabed Authority of the UN Convention on the Law of the Sea', 21:3 The International Journal of Marine and Coastal Law (2006), 323.
44. See Commission on the Limits of the Continental Shelf, n. 33 above, Rule 46, paragraph 1.
45. Ibid., Rule 46, paragraph 2.
46. See W.E. Burhenne, n. 24 above, at 253, for a discussion of multilateral environmental agreements for the Arctic and the development of regional initiatives.
47. United Nations Convention on Biological Diversity (Rio de Janeiro, 5 June 1992).
48. Convention on Long Range Transboundary Air Pollution (Geneva, 13 November 1979).
49. Convention on the Persistent Organic Pollutants (Stockholm, 22 May 2001).
50. See O.S. Stokke, n. 26 above, at 405.
51. Treaty Concerning the Archipelago of Spitsbergen (Paris, 9 February 1920) (Spitsbergen Treaty). Signatories are Denmark, France, Great Britain, India, Ireland, Italy, Japan, Netherlands, Norway, Sweden and the USA.
52. Ibid., Article 3.
53. Ibid., Article 9.
54. T. Pederson, 'The Svalbard Continental Shelf Controversy: Legal Disputes and Political Rivalries', 37:3 Ocean Development and International Law (2006), 339. See also Norway, 'Continental Shelf Submission of Norway in Respect of Areas in the Arctic Ocean, the Barents Sea and the Norwegian Sea: Executive Summary', submitted to the Commission on the Limits of the Continental Shelf (27 November 2006), available at .
55. See T. Pederson, ibid., at 354. For the reactions of States to the submission made by Norway to the Commission on the Limits of the Continental Shelf, see Commission on the Limits of the Continental Shelf (CLCS), 'Outer limits of the continental shelf beyond 200 nautical miles from the baselines: Submissions to the Commission: Submission by Norway' (undated), available at . See, in particular, Permanent Mission of Denmark to the United Nations, 'Notification Regarding the Submission made by Norway to the Commission on the Limits of the Continental Shelf' (Reference No. 119.N.8, 29 January 2007), available at ; Permanent Mission of the Russian Federation to the United Nations, 'Note Verbale' (No 82/n, 21 February 2007), available at ; and Permanent Mission of Spain to the United Nations
56. See T. Pederson, n. 54 above, at 354.
57. Agreement on the Conservation of Polar Bears (Oslo, 15 November 1973). The signatories to the treaty are Canada, Denmark, Norway, the former Soviet Union (now Russia) and the USA.
58. See M.A. Verhaag, n. 3 above, at 566.
59. See UNCLOS, n. 11 above, Article 56(1)(a).
60. Ibid., Article 56(1)(b)(ii)-(iii).
61. Ibid., Article 234.
62. Arctic Waters Pollution Prevention Act (1985), R.S.C. 1985, c. A-12, as amended, Preamble, available at .
63. R. Huebert, 'Polar Vision or Tunnel Vision: The Making of Canadian Arctic Water Policy', 19:4 Marine Policy (1995), 343, at 352.
64. Ibid., at 353.
65. Agreement Between the Government of Canada and the Government of the United States of America on Arctic Cooperation (Ottawa, 11 January 1988).
66. Ibid., paragraph 3.
67. See R. Huebert, n. 63 above, at 359. See also D. Pharand, 'The Arctic Water and Northwest Passage: A Final Revisit', 38:1 Ocean Development and International Law (2007), 3.
68. Agreement Between the Government of the United States of America and the Government of the Russian Federation on Cooperation in the Prevention of Pollution of the Environment in the Arctic (Moscow, 16 December 1994).
69. Agreement on Environmental Cooperation with the Dismantling of Russian Nuclear-Powered Submarines Withdrawn from the Navy's Service in the Northern Region, and the Enhancement of Nuclear and Radiation Safety (Moscow, 26 May 1998).
70. L. Guruswamy and J. Aamodt, 'Nuclear Arms Control: The Environmental Dimension', 10:SUmmer Colorado Journal of International Environmental Law and Policy (1999), 267, at 299.
71. J. Nyman, 'The Dirtiness of Cold War: Russia's Nuclear Waste in the Arctic', 32:1 Environmental Policy and Law (2002), 47, at 49; L. Guruswamy and J. Aamodt, ibid., at 302-303.
72. O.R. Young, International Governance: Protecting the Environment in a Stateless Society (Cornell University Press, 1994), at 58.
73. Agreement between the Government of the Kingdom of Norway and the Government of the Union of Soviet Socialist Republics on Co-operation in the Fishing Industry (Moscow, 11 April 1975).
74. Agreement Between the Government of the Kingdom of Norway and the Government of the Soviet Socialist Republics on Co-operation in the Fishing Industry (Moscow, 15 October 1976).
75. O.S. Stokke and A.H. Hoel, 'Splitting the Gains: Political Economy of the Barents Sea Fisheries', 26:1 Cooperation and Conflict (1991), 49, at 51.
76. O.R. Young, n. 72 above, at 61.
77. Ibid.
78. D. VanderZwaag et al., 'The Arctic Environmental Protection Strategy' in A.G. Oude Elferink and D.R. Rothwell, n. 41 above, 225, at 236.
79. Arctic Environmental Protection Strategy (AEPS) (Rovaniemi, 14 January 1991), Introduction, at 8, available at .
80. Nuuk Declaration (Nuuk, 16 September 1993), available at .
81. See M.A. Verhaag, n. 3 above, at 567.
82. See AEPS, n. 69 above, Introduction, at 7.
83. See W.E. Burhenne, n. 24 above, at 251.
84. Arctic Council, Declaration on the Establishment of the Arctic Council, 'Ottawa Declaration' (Ottawa, 19 September 1996), available at .
85. See W.E. Burhenne, n. 24 above, at 251-253; and D. VanderZwaag et al., n. 78 above.
86. The six indigenous groups are: The Russian Association of Indigenous Peoples of the North; Inuit Circumpolar Conference; Saami Council; Aleut International Association; Gwich'in Council International; and Arctic Athabaskan Council. See W.E. Burhenne, n. 24 above, at 251. See also Arctic Council, 'Notes from the Second Ministerial Meeting of the Arctic Council' (Barrow, Alaska, 12-13 October 2000) (Arctic Council, 2000), at 2-4, available at 27 November 2007.
87. A list of all the observers can be found at Arctic Council, 'Norwegian Chairmanship 2006-2008' (Arctic Council, 27 November 2007), available at .
88. The absence of legal personality served as a compromise to the USA's reluctance to be involved in any new multilateral organization and to enter into any new international financial commitments. See D. VanderZwaag et al., n. 78 above, at 239; and see W.E. Burhenne, n. 24 above, at 251, 254.
89. W.E. Burhenne, ibid., at 254.
90. Ibid.
91. See O.S. Stokke, n. 26 above, at 405.
92. See information on the Northern Forum available from the official website, at ; and O.R. Young, 'Can the Arctic Council and the Northern Forum Find Common Ground?', 38:207 Polar Record (2002), 289, at 289.
93. See O.R. Young, ibid., at 295.
94. The Council endeavours to promote sustainable development in a forum for considering bilateral and multilateral cooperation in the fields of economy, trade, science and technology, tourism, the environment, infrastructure, educational and cultural exchange as well as projects aimed at improving the situation of indigenous people in the North. The Council does not duplicate or replace ongoing work in other bilateral or multilateral fora. See Barents Euro-Arctic Council, 'The Kirkenes Declaration from the Conference of Foreign Ministers on Cooperation in the Barents Euro-Arctic Region' (Kirkenes, 11 January 1993), available at .
95. The Kirkenes Conference, attended by representatives of Denmark, Finland, Iceland, Norway, the Russian Federation, Sweden and the Commission of the European Communities in 1993 was the founding conference of the Barents Euro-Arctic Council. See ibid.
96. See M.A. Verhaag, n. 3 above, at 569.
97. See O.S. Stokke, n. 26 above, at 407.
98. Ibid.
99. Antarctic Treaty (Washington, 1 December 1959).
100. Ibid., Article VI. The Geneva Conventions can be accessed through the United Nations website, at .
101. See the list of parties found in Antarctic Treaty Secretariat, Antarctic Treaty (Antarctic Treaty Secretariat, undated), available at .
102. The Antarctic Treaty System includes, in addition to meeting outputs (some legal rules, others hortatory statements), the Treaty and the Convention for the Conservation of Antarctic Seals (London, 1 June 1972); the Convention on the Conservation of Antarctic Marine Living Resources (Canberra, 20 May 1980) (CCAMLR); the Convention on the Regulation of Antarctic Mineral Resource Activities (Wellington, 2 June 1988) (not in force); and the Protocol on Environmental Protection to the Antarctic Treaty (Madrid, 4 October 1991). All can be accessed through the Treaty Secretariat website, see n. 101 above.
103. W.M. Bush, 'The Antarctic Treaty System: A framework for evolution', in R.A. Herr, H.R. Hall and M.G. Haward, Antarctica's Future: Continuity or Change? (Tasmanian Government Printing Office, 1990), 119.
104. That is, that the Antarctic shall forever be used for peace and cooperative international science (see Antarctic Treaty, n. 99 above, Preamble, and Articles I, II and III).
105. P. Beck, The International Politics of Antarctica (Croom Helm, 1986).
106. This expression is used by J. Grob, n. 2 above, at 462. For further information on how such competition has manifested as international disputes between the States, see ICJ 16 March 1956, United Kingdom v. Argentina (Antarctica Case), [1956] ICJ Rep. 12; and ICJ 16 March 1956, United Kingdom v. Chile (Antarctica Case), [1956] ICJ Rep. 15.
107. The Antarctic Treaty has no nominated lifespan.
108. See Antarctic Treaty, n. 99 above, Article VIII.
109. Ibid., Articles VIII and XI.
110. See J. Graff, n. 1 above.
111. See J. Grob, n. 2 above, at 484.
112. Although not expressly defined in this way in the Antarctic Treaty, it is a widely accepted practice in both Treaty Meetings and CCAMLR Commission meetings. Furthermore, Article 22(5) of CRAMRA expressly nominates this definition for its decisionmaking. For information on how consensus is used by the parties in the CCAMLR context, see J. Turner, J. Jabour and D. Miller, 'Consensus or not Consensus: That is the CCAMLR question', 22 Ocean Yearbook (forthcoming).
113. Since the establishment of the Antarctic Treaty Secretariat in Buenos Aires in 2004, all meeting documents, including final reports, have become available publicly via its website at .
114. See J. Grob, n. 2 above.
115. Ibid., at 465. For a description of the concept of world park and its application to Antarctica, see L. Goldsworthy, ' "World Park Antarctica": An environmentalist's vision', in R.A. Herr, H.R. Hall and M.G. Haward (eds), n. 103 above, 90, at 90.
116. Ibid., at 484.
117. Ibid., at 463.
118. See Convention on the Regulation of Antarctic Mineral Resource Activities, n. 102 above; and see Protocol on Environmental Protection to the Antarctic Treaty.
119. A. Bergin, 'The Politics of Antarctic Minerals: The Greening a White Australia', 26:2 Australian Journal of Political Science (1991), 216.
120. R. Tepper and M. Haward, 'The development of Malaysia's position on Antarctica: 1982 to 2004', 41:2 Polar Record (2005),
121. B. Hamzah (ed.), Antarctica in International Affairs (Institute of Strategic and International Studies, 1987), documents at 143-247 generally.
122. For information on the accession details of new parties during this time, see Antarctic Treaty Secretariat, 'Parties to the Antarctic Treaty' (Antarctic Treaty Secretariat, undated), available at . Taking the condition in Article IX literally, the common interpretation was that becoming a Consultative Party required the establishment in Antarctica of infrastructure to support scientific activities. However, this is not a necessity; for example, the Netherlands has achieved Consultative Party status without establishing facilities but instead by undertaking substantial scientific research using the infrastructure of other countries.
123. E. Brown Weiss, In Fairness to Future Generations: International Law, Common Patrimony and Intergenerational Equity (Transnational Publishers, 1989).
124. World Commission on Environment and Development, Our Common Future (Australian Edition) (Oxford University Press, 1990), at x.
125. See L. Goldsworthy, n. 115 above, at 90.
126. Oversight is also carried out by a group of non-governmental observers, particularly the Scientific Committee on Antarctic Research (SCAR), the Antarctic and Southern Ocean Coalition (ASOC) and the International Union for the Conservation of Nature and Natural Resources (IUCN).
127. J. Jabour, 'Successful conservation - then what? The de-listing of Arctocephalus fur seal species in Antarctica', 11:2 Journal of International Wildlife Law and Policy (forthcoming).
128. Agreement on the Conservation of Albatrosses and Petrels (Canberra, 19 June 2004). This Agreement was adopted under the ambit of the Convention on Migratory Species of Wild Animals (Bonn, 23 June 1979).
129. CCAMLR, n. 102 above, Article 6 defers to the competency of the International Convention on the Regulation of Whaling (Washington, 2 December 1946). However, CCAMLR and the International Whaling Commission have planned a joint workshop to discuss krill predators. See CCAMLR Commission, XXV Final Report (3 November 2006), paragraph 16.23, available at .
130. See, for example, ibid., Section 9.
131. Ibid., Section 5, paragraph 5.6.
132. E.J. Molenaar, 'Multilateral Hot Pursuit and Illegal Fishing in the Southern Ocean: The pursuits of the Viarsa 1 and the South Tomi ', 19:1 The International Journal of Marine and Coastal Law (2004), 19.
133. This is sometimes raised by ASOC (see for example its Antarctic Tourism Campaign: ), and sometimes by parties themselves (for example, 'Agenda Item 11: Tourism and Non-Governmental Activities in the Antarctic Treaty Area' in Antarctic Treaty Secretariat, Final Report of Antarctic Treaty Consultative Meeting XXX (11 May 2007), available at ).
134. Government of Australia, 'Management of Antarctic Non- Government Activities - Australian Comments', Information Paper 108 to Antarctic Treaty Consultative Meeting XXV (2002), available at .
135. See Madrid Protocol, n. 102 above, Article 2.
136. Ibid., Article 7.
137. J.A. Green, 'State Responsibility for the Global Ecosystem: The case of the polar regions' (University of Tasmania, 1994), unpublished Ph.D. thesis.
138. R. Rayfuse, 'Melting Moments: The Future of Polar Oceans Governance in a Warming World', 16:2 RECIEL (2007), 197.
139. Ibid., at 204.
140. D. Gray, 'Canada's Unresolved Maritime Boundaries', 48:2 Geomatica (1994), 131, at 137.
141. See R. Rayfuse, n. 138 above, at 204. See also D. Pharand, n. 67 above, for a complete discussion.
142. Ibid.
143. J. Jabour, 'High Latitude Diplomacy: Australia's Antarctic extended continental shelf', 30:2 Marine Policy (2006) 197.
144. See, for example, P. Wilson, 'British lay claim in race for Antarctic seabed', The Australian (18 October 2007), available at ; O. Bowcott, 'The new British empire? UK plans to annex south Atlantic', The Guardian (18 October 2007), available at .
145. See for example, 'Chile to claim seabed off Antarctica', The China Post (24 October 2007), available at ; 'Chile repeats own Antarctic claim', BBC News (19 October 2007), available at . See also Chilean Foreign Ministry, 'Declaracin del Ministerio de Relaciones Exteriores' (in Spanish) (Santiago, 18 October 2007), available at .
146. Don McIntyre, owner/operator of Sir Hubert Wilkins, personal communication (7 February 2002) and Thierry Perillo, Directeur de Cabinet de l'Administrateur Suprieur du Territoire des Terres Australes et Antarctiques Fran&aises, personal communications (30 January and 7 February 2002).
147. New Zealand made the statement that its 2006 data was a partial submission 'not including areas of the continental shelf appurtenant to Antarctica'. See Commission on the Limits of the Continental Shelf, 'Outer limits of the continental shelf beyond 200 nautical miles from the baselines: Submissions to the Commission: Submission by New Zealand' (9 August 2007), available at . Norway and France have both made partial submissions to the CLCS, which also did not include their Antarctic claims.
148. J. Jabour, 'Underneath the Radar: Emergency search and rescue insurance for East Antarctic tourism', 4:2 Tourism in Marine Environments (2007) 203-220.
149. See R. Rayfuse, n. 138 above.
150. Ibid., at 198-203. See also B.P. Herber, Protecting the Antarctic Commons: Problems of Economic Efficiency (Udall Center for Studies in Public Policy, 2007), at 26.
151. See J. Vogler, n. 5 above, at 6 and 14.