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Leonid Tymchenko*: International Legal Regime for the Arctic


Articles

The Arctic is a part of the globe with the North Pole as a nominal centre, which comprises waters of the Arctic Ocean and its seas and land areas of Europe, Asia, and America. So far there is no universally accepted definition of the term in geography and law. The issue of the southern boundary of the Arctic remains disputable, although many scientists are inclined to believe that it is the Arctic Circle (66 ° 33ʹ North latitude).

The legal status of the Arctic was formed over a long time, the process of its development still goes on. Nowadays, the Arctic legal regime is based on international law and national legislations of the Arctic states (Denmark, Iceland, Canada, Norway, Russia, USA, Finland, and Sweden). Several universal conventions are acting in the Arctic  (UN Convention on the Law of the Sea of 1982, the Chicago Convention on Civil Aviation of 1944, the Treaty on Banning Nuclear Weapon Tests in Three Environments of 1963, et al.); one regional Convention - Agreement on the Conservation of Polar Bears of 1973; numerous bilateral agreements of the Arctic states. However, unlike the Antarctic, there is no international legal instrument that determines the status of the Arctic region as a whole.¹

Canada and Russia, which possess the largest Arctic territories, keep to the sectoral system of protection of their interests in the region. It was initiated by Canadian Senator P. Poirier in 1907. First, Canada allocated the initiative at the legislative level on 1 June, 1925 by adopting amendments to the Law on the North-West Territories. After that Canada adopted a number of legislative acts on its Arctic territories based on the sectoral concept. Provisions of the Canadian law envisage that Canadian sovereignty extends to the lands and islands located within the sector, the apex of which is the North Pole and the sides are meridians 60° and 141° West longitude. The law says nothing about Canada's claims to the maritime area within the sector. However, some Canadian politicians and lawyers began to interpret these provisions of law liberally, i.e. extending them to the maritime zone which was opposed by the USA and other countries. To protect its interests, Canada adopted a law on prevention of pollution of the Arctic waters on 17 July, 1970. The validity of law applies to marine waters 100 miles in width within the Canadian sector. The law did not reduce frictions between Canada and the United States on the status of Canadian Arctic waters, which remain even today.

The Presidium of the USSR Central Executive Committee adopted a resolution on 15 April, 1926 declaring all "lands and islands that have been opened and can be opened later", located in the Arctic Ocean up to the North Pole,  between meridians 32° 04ʹ 35ʹʹ East longitude and 168° 49ʹ 30ʹʹ West longitude, the territory of the Soviet Union. Exception was made for the islands of the Norwegian Svalbard Archipelago (Spitsbergen) lying between 32° and 35° East longitude. The boundaries defined by the resolution form the Arctic sector. The USSR claimed only lands and islands, but not the maritime area beyond the territorial waters within this sector. Despite this, a number of Soviet lawyers (E.A. Korovin, V.L. Lakhtyn, S.V. Sikhrist et al.) concluded that the provisions of the resolution apply also for the maritime zone covered with ice. Although the Soviet government has never officially supported this opinion. Russian scientists and politicians tried to reconsider the Arctic sectoral concept for a short time after the collapse of the USSR. But now one can observe a clear tendency of recognizing the Arctic sectoral concept by the Russian official circles and scientific community.²

The USA did not share the position of Canada and the USSR on the Arctic and continue to oppose the sectoral system. Norway is of the same opinion. Both countries believe that there should be freedoms of the high seas outside the territorial waters in the Arctic. Denmark, as sovereign of Greenland, is silently inclined to the view of the USA and Norway.

A compromise between the two approaches, though not without controversies, was found in Art. 234, UN Convention on the Law of the Sea of 1982, which entitled coastal states to adopt laws and regulations to prevent pollution and preserve the marine environment in ice-covered regions of a width not exceeding 200 miles.

An important role in the life of the Soviet Union and now Russia has been played by the Northern Sea Route (NSR), which has long been considered a national water way closed for international shipping. It was connected with the problems of the Cold War. Its end contributed to the opening of the NSR for international shipping in 1991.

The idea that the Arctic is a special area requiring international legal protection has recently started receiving larger support, which was reflected in the Agreement on the Conservation of Polar Bears of 1973 (unfortunately, the only one of the regional level). It is especially clear for the international scientific community. In 1990 it initiated the formation of a non-governmental organization - the International Arctic Science Committee, which aimed to unite the efforts of scientists in the world in solving complex problems of the region.³

Taking into account the economic, ecological and scientific importance of the Arctic and a high level of militarization of the region, there is a dire need to improve its international legal regime. The current international situation provides a good chance for working out and adopting an umbrella convention for the Arctic, additional protocols of which could solve specific problems of this important region - indigenous peoples, environmental safety, maritime navigation, gradual demilitarization and neutralization, etc. The starting point in this process could serve   basic provisions of the Treaty on Spitsbergen of 1920 which secured the sovereignty of Norway over Spitsbergen on terms of its peaceful economic and scientific development by all states parties with the full demilitarization and neutralization of the Archipelago. The Norwegian Storting passed a law on Svalbard on 17 July, 1925, and the Mining Code for the Archipelago was approved by Royal resolution on 7 August, 1925. Both documents, together with the Treaty of 1920 became effective on 14 August, 1925. The Archipelago received its new name - Svalbard in those documents.⁴

To date, more than 40 countries are parties of the treaty⁵: Bulgaria, the UK, Denmark, Italy, the Netherlands, Norway, Poland, Romania, Russia, Slovakia, the USA, Hungary, France, the Czech Republic, Sweden, the countries of the former Yugoslavia, Japan and others. The Norwegian Storting in its resolution of 15 February, 1947 declared the Soviet Union a country having, along with Norway, special economic interests on Svalbard (Spitsbergen). Since 1991 these rights have moved to Russia. Ukraine is not part of the Treaty, despite the fact that 70% of residents of the village of Barentsburg (one of two on the Archipelago, where people constantly reside) are citizens of Ukraine (data of 2010).

According to the provisions of the Treaty of 1920, Svalbard (Spitsbergen) is recognized Norwegian national territory of joint usage. Svalbard (Spitsbergen) Archipelago is part of the national territory of Norway, by its legal nature, but the joint usage regime is valid there for all states parties, including sovereign, established by virtue of international custom. The participants of the Treaty of 1920 must comply with Norwegian law, which acts on the Archipelago, which in turn must not conflict with the provisions of the Treaty.⁶ It seems that it would be appropriate to use the concept of the national territory of joint usage regarding the Arctic territories of nordic states in the future umbrella Arctic convention. As difficult political, social, economic, environmental and other problems of the Arctic cannot be solved individually, they require concerted efforts of the concerned nations. At the first stage, the mode of sharing the Arctic territories of nordic countries would apply only to eight Arctic states, and it would be without prejudice to their sovereignty, so that the implementation of this mode of action is based on local laws and regulations, while non-Arctic states may participate in solving the problems of the Arctic on the basis of bilateral agreements with the countries of the region and other international legal means.

Eight Arctic countries (Denmark, Iceland, Canada, Norway, Russia, the USA, Finland and Sweden) signed the Ottawa Declaration in September,1996 on the establishment of the Arctic Council - a new regional international organization. The purpose of the Arctic Council: cooperation, coordination and interaction between the Arctic states with the active participation of indigenous peoples of the North and other inhabitants of the Arctic in general Arctic issues; control and coordination for the implementation of environmental programmes; developing, coordinating, and monitoring the implementation of sustainable development programmes; disseminating information, encouraging interest and educational initiatives on issues related to the Arctic.

The Declaration stresses that the Arctic Council is not to deal with issues of military security and the demilitarization of the Arctic, despite the fact that the sphere was initially planned as a priority in its activities. The reason is that the Arctic is one of the most militarized and nuclearized regions of the Earth. The indigenous peoples of the North, NGOs, research centres, public of nordic countries insist on taking urgent and efficient measures to limit armaments in the Arctic with the prospect of full demilitarization and neutralization of the region. Unfortunately, the Arctic states have not included this important area of cooperation into the list of goals of the Arctic Council.

A new positive feature of the structure of the Arctic Council is the inclusion of the NGO representatives of indigenous peoples of the North as its permanent members.⁷

Non-Arctic states may participate in the work of the Arctic Council as observers. Ukraine as a large marine and science state has her own interests in the Arctic, and therefore should be active in the Arctic Council and in the formation of a new legal regime for the region taking into account her legitimate interests as well.

The Ilulissat Declaration (Greenland) was proclaimed on 28 May, 2008  by five coastal states of the Arctic Ocean (the USA, Russia, Canada, Norway, and Denmark). One of the main purposes recorded in the declaration was blockage of any "new comprehensive international legal regime for the Arctic Ocean."⁸ But this is one of the trends of developing international relations in the Arctic.

There has been another trend lately: Russian military activeness in the Arctic has dramatically increased, causing concern of foreign politicians and experts. Regular exercises and restoration of military infrastructure along the Arctic coast of Russia are accompanied by tough public rhetoric and declared in the early 2000s claims to the underwater Lomonosov Ridge in the Arctic Ocean. All this gives reason to say that there is militarization of the Arctic underway in the best traditions of "cold war".⁹

A well-known expert on legal matters of polar regions D. Rothwell (Australia) pointed out: "Arctic States have since the 1990s been skirting around the edges of creating a substantive legal regime for the region. In the past, concerns over national security have been a stumbling block to any progress towards regime formation. Now in the early part of the Twenty-First century resource, environmental and human security have emerged as key issues facing the region. It is clear that none of the Arctic states can individually deal with the challenges the region is facing."¹⁰ Professor J. Rothwell concludes that it is time for a reassessment of the reluctance of the Arctic states to consider hard law mechanisms. In his view, the current Arctic regime is a patchwork of soft political responses in need of an overarching binding treaty framework. We cannot but agree with this conclusion.

 

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* Information about the Author:

 Tymchenko L.D., Doctor of Law, Professor NFS University, Ukraine 

The article is based on the presentation at the International Conference «Russian Activeness in the Arctic: goals, trends and security challenges»

 


References:

1 See: Тимченко Л.Д., Кононенко В.П. Міжнародне право.  Підручник. К.: Знання, 2012.  p. 375.

²See: Timtchenko L. Quo Vadis, Arcticum? The International Law Regime of the Arctic and Trends in its Development. Kharkiv: State University Press “Osnova”, 1996. P. 76-77.

³International Arctic Science Committee. http://iasc.info/iasc/about-iasc

⁴ It is not clear, why Ukraine still uses an old name of the Archipelago – Spitsbergen - in her official lexicon.

⁵ It is difficult to name the precise number of states parties of the Treaty of 1920.The author visited the Ministry of Foreign Affairs of Norway in October, 1993 to find it out, but failed to get a clear answer. According to Wikipedia, 45 nations are part of the Treaty of 1920 now (https://en.wikipedia.org/wiki/Svalbard_Treaty). 

⁶ See: Timtchenko L. Op. cit. P. 70-72.

⁷ See: Arctic Council. http://www.arctic-council.org/index.php/en/

⁸ See: The Ilulissat Declaration. The Arctic Ocean ConferenceIlulissatGreenland, 27 - 29 May, 2008. http://www.oceanlaw.org/downloads/arctic/Ilulissat_Declaration.pdf

⁹ See: Лузин П. Реальна ли милитаризация Арктики? // Независимая газета. 16.09.2015. Access: http://www.ng.ru/blogs/paveluzin/realna-li-militarizatsiya-arktiki.php

[1]⁰ Rothwell D.R. The Arctic in International Affairs: Time for a New Regime? https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1314546

17.05.2017 19:00:00