Tag Archives: Arctic

Territorial and Law of the Sea Disputes

Lessons from the Arctic for the South China Sea

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By Daniel Thomassen 

Introduction

The maritime region centered on the South China Sea has been a vital international trade route and reservoir of natural resources throughout modern history. Today, its importance cannot be understated: half the volume of global shipping transits the area, competition for energy and fishing rights is intensifying between surrounding nations (with growing populations), commercial interests are increasing, and regional military spending increases lead the world. Rivalry over resources and security has triggered disputes about sovereignty and historical rights. China has used its increasing relative power to aggressively claim sovereign rights over two-thirds of the South China Sea within the so called “Nine-Dash Line.” Overlapping claims by the Philippines, Vietnam, Malaysia, Brunei, and Taiwan are being dismissed and have sometimes resulted in armed confrontations. Furthermore, the construction of artificial islands and significant military installations on reefs and rocks is underpinning Chinese sea control ambitions within the “First Island Chain.” This deteriorating security environment threatens regional stability, adherence to international law, and the freedom of the seas. Furthermore, it has the potential to escalate into conflict far beyond the levels of militarization and skirmishes between fishing fleets, coastguards and navies seen so far.

The U.S. has been deeply involved in the creation and management of the East-Asian state system since World War II, contributing to its economic progress and security arrangements, which include alliances with the Philippines, Japan and South Korea. Thus, the regional interests of the United States include freedom of navigation, unimpeded lawful commerce, relations with important partners and allies, peaceful resolution of disputes, and the recognition of maritime rights in conformity with international norms and law (with the provisions of the United Nations Convention on the Law of the Sea (UNCLOS) in particular).1 These principles are universally applicable and must be upheld every time and everywhere to be respected. Regional countries are now reconsidering the relevance and commitment of the balancing power of the U.S. in light of Beijing’s dismissal of American concerns and bilateral initiatives towards its smaller neighbors. 

The Arctic region similarly holds the potential for great power rivalry, but in contrast offers a good example of peaceful settlement and compromise. The diminishing ice cap is causing a growing emphasis on resources, international waterways, and commercial activity in the Arctic, where there are also competing claims and great power security interests represented. However, the Arctic nations have chosen to cooperate with regards to responsible stewardship and use UNCLOS and supplementing treaties as the legal basis. The cooperative framework is constituted by the Arctic Council, the agreed adherence to international law and arbitration tribunals, bilateral and multilateral treaties, demilitarized zones, Incident at Sea agreements, joint fisheries commissions, as well as the power balance between Russia and the NATO alliance. As a result, although there is potential for competition and diverging national interests, mutually beneficial compromises and diplomatic solutions to maintain stability and predictability are preferred.

Arctic Dispute and Resolution

Currently there are overlapping claims from Russia and Denmark for the seabed under the North Pole (Lomonosov and Alpha-Mendeleyev Ridges) under consideration by the Commission on the Limits of the Continental Shelf, and Canada is preparing another competing claim. These claims can further be used as a basis for bilateral agreements on maritime delimitations.  This was the case between Norway and Russia in 2010, and there are prospects of a similar agreement between Russia and Denmark. Such cooperative mechanisms, institutions and shared principles in the Arctic are far more robust than comparable efforts in the Southeast Asia, such as ASEAN or the “Declaration on the Conduct of Parties in the South China Sea.”

A map of claims on the Arctic seafloor. (Durham University)

The Svalbard Treaty of 1920 set a standard for international governance, and was a bold and forward looking concept when introduced almost 100 years ago.2 The archipelago was discovered by Dutch explorers in 1596, and resources were since extracted by Holland, England, Russia, and Scandinavians. Eventually, the major powers voluntarily conceded sovereignty over the islands to the young Norwegian state through a commission related to the Paris Peace Conference after World War I. The Treaty allows visa-free access for citizens of signatory states, equal rights to extract natural resources, freedom to conduct scientific activities, ensures environmental protection, and prohibits permanent military installations. This agreement exemplifies the feasibility of imposing restrictions on sovereign authority, the accommodation of the interests of the parties, and adherence to non-discrimination principles.

Episodes of Confrontation

Much like the South China Sea, there have been clashes between the coastal states in the Arctic. Between 1958-1961 and in 1976, there was a state of armed conflict and diplomatic breakdown between the United Kingdom and Iceland over fishing rights. 3 The Royal Navy escorted British fishing vessels to confront the Icelandic Coast Guard in the contested zone. Shots were fired, ships were rammed and seized, and fishing gear was cut loose from the ships in heated skirmishes. However, on both occasions it was the stronger power that stood down to the weaker, as Britain finally recognized Iceland’s right to protect its resources after significant international diplomacy that included the forming of UNCLOS.

Icelandic patrol ship ICGV Óðinn and British frigate HMS Scylla clash in the North Atlantic in 1973. (Wikimedia Commons)

Other minor events in the Arctic include the 1993 Loophole dispute between Norway and Iceland, 4 and Hans Island, the only unsolved territorial dispute, which is under negotiation between Canada and Denmark. 5 The successful diplomatic de-escalation of these cases is in stark contrast to the clashes between China and its rivals in events like the 2012 Scarborough Shoal standoff, 6 the 1995 occupation of Mischief Reef in the Spratlys, the 1988 battle over the Spratly Islands, the 1976 grab of the Paracel Islands, 7 and of course the blunt Chinese dismissal of the 2016 ruling from the International Arbitration Court against the legitimacy of the Nine-Dash Line claim. 8

China has mostly shown an uncompromising attitude in the South China Sea since the 1970s, without serious U.S.-led international efforts to check its use of force. But China too has occasionally demonstrated its willingness to forward claims to international arbitration bodies, such as its 2012 submission to the Commission on the Limits of the Continental Shelf regarding the East China Sea.9 However, that effort must be viewed in context of the ongoing efforts at the time to be accepted as observer in the Arctic Council.

Applying Arctic Lessons

The recent row between the Chinese and the U.S. Navy over an Unmanned Underwater Vehicle is symptomatic of the evolving problem, which must be addressed by the new administration in the White House. The South China Sea currently constitutes the primary global hotspot where major and regional powers’ vital interests and alliance commitments directly clash. A framework to manage this region must be negotiated by the two superpowers primarily and supported by the other involved nations. It requires the will to compromise and the pursuit of mutual interests while looking forward – a set-up which could benefit from the indicated transactional policy approach of President Trump. Any long-term solution would have to accommodate legitimate Chinese demands for security and resources. But, the U.S. must commit strongly by dedicating all available instruments of power (diplomatic, information, military, and economic measures) to impose negative consequences unless China is willing to negotiate from its strong position. Furthermore, the U.S. must uphold the same standards and make concessions itself.

It must therefore expediently ratify UNCLOS10 with its international tribunals and vow to respect the treaties that must be created to regulate sovereignty, demilitarization, commercial rights and responsibilities to protect fish stocks and the environment. Chinese concerns about the “One China Policy,” American forward basing, and policy on the Korean peninsula must also be on the table, as well as cooperation on regional trade agreements.

While state security can be achieved in the South China Sea through treaties, demilitarization, power balance and predictability, the conditions for prosperity flow from similar efforts. As demonstrated in the Arctic, good order at sea and responsible stewardship encourages investments and lay the foundation for cooperative ventures that are mutually beneficial. Uncontested sovereignty and fair trade regulations are incentives for developing expensive infrastructure necessary for harvesting resources under the seabed. The inevitable link connecting China and the U.S. is the economic dependency between the two largest economies in the world. So far, they have both unsuccessfully introduced regional free trade initiatives in order to create beneficial terms for themselves such as the Regional Comprehensive Economic Partnership agreement and the Trans Pacific Partnership respectively. 11 An obvious flaw with these proposals is that they have excluded the opposite superpower. Since both countries are indispensable trading partners to most others, a cooperative effort to create trade agreements would benefit both and could not be ignored.

Although unresolved sovereignty issues in the South China Sea make it a tough case, there is a model to study and lessons to be learned in the cooperative management of the Arctic region (as well as the 1959 Antarctic Treaty and the 1936 Montreux Convention). However, controlling the impulses of a great power to dominate its surroundings requires a massive international diplomatic effort, creating alternative mutually beneficial conditions and a proper balancing of military power. Active U.S. presence and regional capability is fundamental to maintaining a balance and influencing the shaping of a cooperative environment. But first and foremost, there is a requirement for building trust and confidence through long term commitment to international cooperation, predictability and clear intentions. For a start, the good examples from the Arctic have been shared with China, Japan, India, the Republic of Korea and Singapore – all of which are involved or have vital interests in the South China Sea dispute – since they became observer states to the Arctic Council in 2013. Likewise, the U.S. can also benefit from its experience as an Arctic nation, and from the insight gained from holding the chairmanship of the Arctic Council since 2015. Moving forward, the Arctic offers successful governance lessons that can be applied to the South China Sea in order to maintain stability and ensure prosperity for all.

Daniel Thomassen is a Commander (senior grade) in the Royal Norwegian Navy. He is a Surface Warfare Officer serving as Commanding Officer of HNoMS Fridtjof Nansen (FFGH). He is a graduate of the Royal Norwegian Naval Academy (2002), U.S. Naval War College (2015), and holds an MA in International Relations from Salve Regina University (2015).

References

1. Jeffrey Bader, Kenneth Lieberthal, Michael McDevitt, “Keeping the South China Sea in Perspective”, Brookings, August 2014 https://www.brookings.edu/wp-content/uploads/2016/06/south-china-sea-perspective-bader-lieberthal-mcdevitt.pdf

2. Wallis, Arnold, Numminen, Scotcher and Bailes, “The Spitsbergen Treaty – Multilateral Governance In The Arctic”, Alliance of Liberals and Democrats for Europe/Applied International Law Network, Arctic Papers Vol. 1, 2011 https://dianawallis.org.uk/en/page/spitsbergen-treaty-booklet-lauched

3. The Ultimate History Project, “A Serious Joke: Britain and Iceland Go to War”, http://www.ultimatehistoryproject.com/cod-war-britain-and-iceland-go-to-war-over-fishing.html

4. Thorir Gudmundsson, “Cod War on the High Seas – Norwegian-Icelandic Dispute Over Loophole Fishing in the Barents Sea”, Nordic Journal of International Law, 64: 557-573, 1995

5. Jeremy Bender, “2 countries have been fighting over an uninhabited island by leaving each other bottles of alcohol for over 3 decades,” Business Insider, 10. January 2016 http://www.businessinsider.com/canada-and-denmark-whiskey-war-over-hans-island-2016-1?r=US&IR=T&IR=T

6. Jane Perlez, “Philippines and China Ease Tensions in Rift at Sea”, The New York Times, 18. June 2012 http://www.nytimes.com/2012/06/19/world/asia/beijing-and-manila-ease-tensions-in-south-china-sea.html

7. “Military Clashes in the South China Sea” http://www.globalsecurity.org/military/world/war/spratly-clash.htm

8. Matikas Santos, “Key points of arbitral tribunal’s verdict on PH-China dispute”, Inquirer, 12. July 2016 https://globalnation.inquirer.net/140947/key-points-arbitral-tribunal-decision-verdict-award-philippines-china-maritime-dispute-unclos-arbitration-spratly-islands-scarborough#ixzz4UQUrV9m3 

9. Submission by the People’s Republic of China Concerning the Outer Limits of the Continental Shelf beyond 200 Nautical Miles in Part of the East China Sea http://www.un.org/depts/los/clcs_new/submissions_files/chn63_12/executive%20summary_EN.pdf

10. Eliot L. Engel and James G. Stavridis, “The United States Should Ratify The Law Of The Sea Convention”, The Huffington Post, 11. July 2016 http://www.huffingtonpost.com/rep-eliot-engel/the-united-states-should_b_10930236.html

11. Lauren O’Neil, “Trade In Asia: The Liberalization Agenda – Where To From Here?”, Forbes, 13. December 2016

Featured Image: The Canadian Coast guard’s medium icebreaker Henry Larsen is seen in Allen Bay during Operation Nanook, in Nunavut on Aug. 25, 2010. (Sean Kilpatrick/Canadian Press)

Arctic, Interviews

Arctic Security and Legal Issues in the 21st Century: An Interview with CDR Sean Fahey

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By Sally DeBoer

The changing Arctic is a topic of increasing interest to the maritime security community. Rapidly receding sea ice and increasingly navigable waters combined with the promise of rich natural resource deposits have made investment in the Arctic – particularly military and infrastructure investment – a priority for Arctic nations and other parties that stand to benefit from the region. To discuss these issues and more, CIMSEC interviewed Commander Sean Fahey, USCG of the U.S. Naval War College Stockton Center for the Study of International Law for his expert insight on legal and security issues in the High North in the 21st Century. 

SD: CDR Fahey, thank you so much for taking the time to discuss legal and security challenges to the Arctic in the 21st Century. We are honored to have someone with your experience and expertise speak with us! To begin, can you tell us a little about yourself and your background?

SF: Great to be with you; thank you for the invitation. I serve as the Associate Director for the Law of Maritime Operations at the Stockton Center for the Study of International Law, at the U.S. Naval War College. In this role, I conduct research and teach global maritime security law. In particular, I focus on the intersection of law and security in the Arctic Ocean. For example, I recently collaborated with Professor James Kraska on a position paper for the U.K. House of Commons Defence Sub-Committee, Defence in the Arctic Inquiry. I am also the Editor-in-Chief of International Law Studies, the Stockton Center’s peer-reviewed law journal, and the oldest journal of international law published in the United States.

By way of background, I am an attorney and commissioned officer in the rank of commander in the United States Coast Guard, and have advised various levels of command on the legal issues impacting maritime security operations, primarily counter-drug, fisheries enforcement, migrant interdiction and environmental law enforcement. I have also served as a Trial Attorney for the U.S. Department of Justice and as a legal advisor in the operational law division of USAFRICOM, where my focus was on maritime security operations, namely counter-piracy and maritime law enforcement support, and counter-terrorism.

SD: Can you characterize the United States’ current position in the Arctic? Is the U.S. prepared – materially and strategically – for challenges ahead in the Arctic?

SF: The United States is an Arctic nation, and the region is of significant strategic, economic and environmental importance to us. Some of the challenges we face in the region, for example, energy and mineral exploitation, are future challenges, but many, such as preserving freedom of navigation and overflight, are immediate. Climate change – whatever the cause – promises to be a major factor in how we prioritize our responses to those challenges, but it is not the only factor. Our strategy is influenced by the actions and priorities of the other Arctic nations as well, and in some areas the United States is not in the lead.

Strategically, we have comprehensive guidance on how to structure our approach to the region. American priorities are set forth in National Security Presidential Directive-66/Homeland Security Directive-25 and the “National Strategy for the Arctic Region,” and the accompanying Implementation Plan. Broadly, U.S. strategy is to advance U.S. security interests, pursue responsible Arctic stewardship, and strengthen international cooperation in the region. Each of those priorities has several detailed lines of effort. For example, the U.S. has four primary lines of effort to promote security: (1) preservation of freedom of navigation and overflight throughout the Arctic region; (2) enhancement of Arctic regional domain awareness and presence; (3) development of future U.S. energy security; and (4) evolve Arctic strategic capabilities, military force structure, and civilian infrastructure to be able to best respond to challenges unique to the region.

Many of the federal departments and agencies tasked with taking the lead on a particular line of effort within the national policy further refine the National strategy with additional guidance documents, among them the U.S. Coast Guard and Department of Defense. So, in response to the second part of your question – is the United States prepared for future challenges in the Arctic? Strategically we are. We know the priorities and we know who is responsible for advancing them. Materially, however, the United States is not in the best position it could be to advance its strategic priorities. The most pressing example of this lacuna is the requirement for icebreakers.

One of two USCG Polar Icebreakers (Petty Officer 2nd Class Grant DeVuyst/Coast Guard)

Enhanced icebreaking capabilities are vital to properly support U.S. security interests in the Arctic. You cannot be present if you cannot get there. Virtual presence is actual absence. A persistent presence in the Arctic region is a condition precedent for the effective exercise of law enforcement jurisdiction and improved domain awareness. Currently, the U.S. has two icebreakers. The Russian Federation has 37. A fleet of at least six heavy icebreakers would provide one full-time U.S. presence within the Arctic Ocean in both the east and west, while also allowing enough hulls for training, work-ups, and post-deployment maintenance. This requirement is supported by the Pentagon, and is the single most important capability for the U.S. to pursue in the Arctic. Only a robust ice-breaking capability allows the U.S. to respond to all threats and all hazards in the region.

SD: The United States is in a time of flux, politically – how do you think a U.S. position that is perhaps less invested in preventing the effects of climate change might affect the security situation in the Arctic and the role of the U.S. as an Arctic leader?

We certainly are in a time of flux, but it is too early to say how the administration will address the challenges posed by climate change. Time will tell. That said, the data on the environmental changes occurring in the Arctic are alarming. According to the National Snow and Ice Data Center, which is directly supported by NASA and NOAA, the minimum Arctic sea ice extent has reduced by 40 percent since 1978. Last year the maximum (wintertime) sea ice extent was at a record low for a second year in a row. Additionally, NASA reports that global surface temperatures – to include in the Arctic – were at record highs in 2016. In short, the data indicate that the melt will not only continue, but will likely accelerate.

Trends in sea ice thickness/volume are another important indicator of Arctic climate change. While sea ice thickness observations are sparse, this figure utilizes the ocean and sea ice model, PIOMAS (Zhang and Rothrock, 2003), to visualize October sea ice thickness from 1979 to 2017. Sea ice less than 1.5 meters is masked out (black) to emphasize the loss of thicker, older ice. Updated through January 2017. (Zachary Michael Labe, Ph.D. Student, Department of Earth System Science, The University of California, Irvine)

Responsible regional stewardship – over the Arctic and its resources – is one of the pillars of our national strategy. It would be unfortunate if the United States were forced to effectively abdicate its leadership position in the Arctic due to a perceived lack of credibility on this issue by other Arctic nations. If we abdicate our leadership position, we abdicate our ability to shape regional security issues, and other Arctic nations may be reluctant to partner with us.

SD: Can you speak to some of the impacts that climate change has had on the Arctic security situation?

SF: The changing Arctic climate has already had a recognizable impact on the regional security landscape. Less ice means greater access and more activity. Some of the impacts may be positive. For example, the Arctic has enormous importance for long-term U.S. energy security. The U.S. Geological Survey (USGS) estimates that 13 percent of the world’s undiscovered oil reserves (90 billion barrels) are in the Arctic. This estimate is in addition to more than 240 billion barrels of petroleum reserves that have already been discovered. The USGS estimates that one-third of this oil is in the circum-Arctic region of Alaska and the Alaskan Outer Continental Shelf (OCS). Responsibly and safely developing new domestic energy sources strengthens U.S. energy security by reducing U.S. reliance on imported oil, some of which, as you know, travels vast distances from extremely unstable regions before entering the national supply.

That said, competition for energy resources in disputed areas of the Arctic could destabilize the regional security balance. I am confident however, that the United States and the other Arctic nations will resolve their boundary disputes peacefully. We have seen evidence of this already with the Russian Federation and Norway resolving a long-standing maritime border dispute in the Barents Sea.

The more immediate impact of climate change on the Arctic security situation will be on freedom of navigation and overflight in the region. Broadly speaking, freedom of navigation and overflight are critical for the U.S. to be able to support peacetime and wartime contingencies across the globe. If the Arctic ice melt continues at its current pace, the Northwest Passage, the shipping route along the Canadian Arctic coastline, and the Northern Sea Route, the shipping route along the Russian Arctic coastline, will be accessible for longer periods of time, possibly year round.

Strategic mobility throughout the Arctic could become critical to support strategic sealift for U.S. contingency operations worldwide, and the Northwest Passage and Northern Sea Route could serve as waterways to support such contingency operations. Portions of both shipping routes cross areas where the respective coastal state has made, in the opinion of the U.S., an excessive maritime claim, and these claims threaten the ability of naval forces to exercise their navigational and overflight rights. Preserving these rights is a central tenet of the National Arctic strategy. The U.S. Department of State, the lead agency for this strategic priority, is actively engaged with Canada and Russia on this issue, but it may be prudent for the United States to conduct freedom of navigation operations – the peaceful exercise of international legal rights in disputed sea areas – in areas of the Arctic Ocean that are subject to unlawful maritime claims.

SD: Many of our readers may not be aware of the pivotal role the U.S. and international Coast Guards have in maritime operations, specifically on operations in the high north. What improvements could the United States make to its infrastructure to be more prepared for operations in the Arctic?

At the risk of sounding redundant, I think greater icebreaking capability, and the shore-based infrastructure required to support icebreakers, is absolutely critical for the U.S. to achieve its maritime security goals in the Arctic. In order to respond to regional threats and hazards, U.S. surface forces need to be able to safely navigate the Arctic Ocean.

In the same vein, the U.S. should also commit to constructing ice-strengthened patrol ships for its seas services, similar to the Arctic Offshore Patrol ships being commissioned by the Royal Canadian Navy. The increased security presence in the region that greater icebreaking capability and ice-strengthened patrol ships would enable will help further deter conventional and unconventional maritime security threats and also ensure that U.S. near-shore and offshore oil and gas industry infrastructure is properly safeguarded. Search and rescue (SAR) also requires both ships and aircraft that are capable of operating in extreme climate. The United States has inadequate force structure to meet SAR contingencies.

Additionally, the U.S. needs to strengthen is pollution response capabilities and infrastructure in the Arctic. Needless to say, as the energy sector expands in the Arctic, so too does the risk of pollution. Given the remoteness of the region, sufficient pollution response capabilities and infrastructure need to be in place and accessible in order to ensure a timely response.

Finally, as the region becomes more accessible to year-round commercial navigation, the U.S. needs to ensure we have the sufficient infrastructure to support safe and secure maritime commerce. This could include harbor and dock improvements, aids to navigation, management systems for high risk vessel traffic areas,  search and rescue capabilities, and effective communications networks. Some of these are in place, some just need to be enhanced, and some need to be created.

SD: As you are a legal scholar, we’d like your insight on competing maritime claims in the region. First, what legal foundation, if any, does Canada have for its claim over the Northwest Passage? We know this is a controversial topic; what does the letter of the law dictate on the matter?

The Northwest Passage Route (Encyclopedia Britannica, Inc.)

Canada asserts they have complete sovereignty over the waterways that comprise the Northwest Passage. Their legal argument for doing so is that the waters comprising the Northwest Passage lie within either Canadian internal waters or its territorial sea, and are thus subject to their jurisdiction and control. The United States and the European Commission have rejected Canada’s claims, and consider the Northwest Passage, a strait used for international navigation, open to navigation without coastal state interference.

Canada’s internal waters claim is predicated on straight baselines and the assertion of historic title to the waters of the Northwest Passage. Though the normal baseline used to measure the extent of a nation’s territorial sea is the low-water mark along their coast, UNCLOS does permit nations to draw “straight baselines” if certain criteria are met. Once a legal baseline has been drawn, waters seaward of the baseline, up to twelve nautical miles, are considered territorial sea; waters landward of the baseline are considered internal waters, subject to absolute coastal state sovereignty and jurisdiction. In short, Canada claims that, through its application of straight baselines, the entire waterway of the Northwest Passage became part of its territorial sea or internal waters, and is subject to its exclusive control. Remember though, that the Northwest Passage is some 100 nm wide in many areas, and Canada may not claim these areas as internal waters or territorial sea.

The U.S. position is that Canada’s application of straight baselines along the Northwest Passage is excessive and constitutes an unlawful interpretation of the criteria for establishing straight baselines under UNCLOS. Straight baselines may be used in the case of fringing islands or a coastline that is deeply indented and cut into. But even in these cases, the coastal state must draw the baselines narrowly. Under Article 8(2) of UNCLOS, even if countries accepted the limits of coastal state jurisdiction, then vessels from any nation would be completely free to traverse the area in innocent passage.

Consequently, even if nations accepted Canada’s straight baseline claims on their face, the ships of all nations would still be entitled to “innocent passage” through these “internal waters.” UNCLOS is clear on this issue; when the application of straight baselines have the effect of enclosing as internal waters areas which had not previously been considered as such – as is the case in with the Northwest Passage – the right of innocent passage still exists. Canada asserts that – the UNCLOS provisions about straight baseline enclosures notwithstanding – they have a historic claim to the Northwest Passage as well, one that precedes its straight baseline application. One of the weaknesses with that argument, however, is that a claim of historic title to internal waters requires, among other things, the acquiescence of foreign nations to that claim. The United States have never acquiesced to Canada’s claim, but have, instead, openly protested it, and continue to do so.

As you indicate though, it is a controversial matter, and much stronger legal scholars than I have written at length on the issue, but I think the position of the United States and European Commission is the legally correct one; the Northwest Passage is an international strait. Various legal characterizations aside, I am confident that the dispute over the Northwest Passage will be resolved amicably. Canada is a longstanding and indispensable ally of the United States – one that we have the deepest respect for – and an invaluable partner in the Arctic. The U.S. shares the same interests as the Canadians in ensuring a safe, secure, and environmentally protected Arctic, and many of the systems employed and contemplated by Canada to protect its interests – ship reporting, designating sea lines, vessel traffic separation schemes – do not require absolute sovereignty to affect. A diplomatic solution will be found.

SD: Can you provide some context for Russia’s extensive maritime claims? Can they reasonably expect a favorable ruling on their extension of their continental shelf?

The Russian Federation has several maritime claims of interest, particularly their claims regarding the Northern Sea Route and, as you note, their claim to an extended continental shelf. The Northern Sea Route claims need to be looked at closely from a maritime security perspective, as they have the potential to adversely impact maritime mobility.

As you know, the Russian Federation enacted national legislation establishing a state institution (the Northern Sea Route Administration or “NSRA”) with a mandate to “organize navigation in the water area of the Northern Sea Route.” This national legislation also defined “the water area” of the Northern Sea Route to include the Russian Arctic internal waters, territorial sea, contiguous zone, and – notably – their exclusive economic zone. Shortly after its establishment, the NSRA published their “Rules of Navigation on the Water Area of the Northern Sea Route,” which contains several provisions that adversely impact freedom of navigation and may not be consistent with international law, chief among them the unilateral requirement that all ships must request advance permission from the NSRA to enter “the water area” of the Northern Sea Route.

The potential impacts of this provision alone to maritime mobility could be significant; the regulation is arguably an attempt to unilaterally bypass vital high seas freedoms and navigational rights, such as innocent passage and transit passage that ships would otherwise be entitled to, in order to assert greater control over the shipping channel. Though UNCLOS (Article 234) provides for limited legislative and enforcement rights in “ice covered areas” of a coastal state’s EEZ, any coastal state legislation adopted under this limited authority must have “due regard to navigation.” As such, the Russian Federation’s reliance on Article 234 as the international legal basis for its regulation requiring ships to request permission to enter the water areas of the Northern Sea Route is overreaching. The impacts to navigation of this provision are severe.

Russian nuclear icebreaker NS 50 Let Pobedy (Sputnik, Sergey Eshenko)

With respect to whether the Russian Federation can expect a favorable ruling from the UN Commission on the Limits of the Continental Shelf on their extended continental shelf claim, I would say that the Russians are certainly doing everything in their power to see that they do. And if they do not receive a favorable ruling, I fully expect them to continue conducting research into the Arctic seabed, compiling data, and submitting revised claims, much like they did in 2015 after their 2001 application was rejected and the Commission requested additional scientific evidence from the Russians to support their claim. The natural resources potentially at stake are too valuable for Russia to simply walk away.

SD: The PRC’s response to the arbitration ruling on claims in the SCS indicated a disregard for international law – can you see such a reaction leading to similar reactions when it comes to Arctic rulings?

There’s always the potential for it and, in fact, already some evidence of it. In 2013, the Russian Federation refused to directly participate in the International Tribunal for the Law of the Sea proceedings in the Arctic Sunrise case, the dispute between Russia and the Netherlands over law enforcement actions taken by Russia in their Exclusive Economic Zone against a Netherlands-flagged Greenpeace vessel protesting against Russian oil exploration in Arctic waters. To be fair, the Russian Federation did, however, submit several position papers to the arbitral tribunal about various aspects of the case, to include protesting the jurisdiction of the tribunal, but ultimately Russia rejected the tribunal’s ruling.

More generally though, any given nation’s strategic priorities may not always be in perfect alignment with what international law requires. Ideally though, in such a situation, nations will recognize that short-term national “gains” may ultimately compromise their standing within the international community, and erode their ability to partner with other nations. My concern is that as energy resources become less plentiful in other regions and more accessible in the Arctic, particularly in the disputed areas, we may see some nations more inclined to act solely in their own national self-interest, even if their actions are in direct conflict with international law.

To date, however, many of the challenges facing the Arctic have been addressed collectively. There appears to be a genuine spirit of international cooperation in the region. We’ve seen this in the Ottawa Declaration establishing the Arctic Council as a forum for intergovernmental cooperation in the region, the commitment to the Law of the Sea as the legal framework to govern the Arctic Ocean made by the Arctic coastal states in the Ilulissat Declaration, the participation of the Arctic coastal states in the formation of the International Maritime Organization’s Polar Code, and the successful development of a binding multilateral search and rescue agreement between all of the Arctic nations, governing the entire region. There are many examples of international collaboration in the Arctic, and I am cautiously optimistic that nations will respect collective interests – such as adherence to international law – even when there may be some short-term national advantage to be gained by disregarding them. The Arctic is not a region where you can “go it alone.”

SD: Let’s discuss militarization in the Arctic – do you foresee a trend toward greater military presence in the Arctic and what possible implications of this movement might you caution?

I do, and it is a trend that cannot be solely attributed to any one nation. Many of the Arctic countries are increasing their military footprints in the region, which of course has a ripple effect. As you know, the Russian Federation recently stood up a Joint Strategic Command for the Arctic. The entirety of Russia’s Northern Fleet was completely absorbed into this new Arctic Command, and the land component is comprised of two brigades, with plans for a third, as well as specially trained Arctic coastal defense divisions. Fourteen airfields and sixteen deepwater ports are in various stages of development along the Northern Sea Route. Russian submarine patrols across the North Atlantic rose by nearly 50 percent last year. These capabilities and this infrastructure positions Russia to have a dominant military presence in the Arctic for the foreseeable future.

Despite this escalation, however, I think the potential for a large-scale, conventional conflict in the region is low. Perhaps that’s naïve, but there is little evidence that the Arctic nations will abandon diplomacy as the preferred dispute resolution tool in favor of force. In fact, the evidence points to the contrary. I think what is more likely is another “Black Sea Bumping Incident” type scenario between an Arctic coastal state, defending what they believe their territorial integrity, and a foreign naval vessel, exercising freedom of navigation, perhaps along the Northern Sea Route. Of course, this kind of scenario can – in and of itself – lead to an escalation.

SD: How would you answer those who feel UNCLOS is insufficient when considering legal issues in the High North?

I agree with the wisdom of the signatories to the Illulissat Declaration. The Arctic is primarily a maritime region, and the Law of the Sea is the appropriate international legal regime. Many of the future challenges in the Arctic – delineating the outer limits of the continental shelf, which will hopefully resolve many of the potential resource disputes in the region; ensuring freedom of navigation along shipping routes that may become increasingly more accessible with the changing climate; ensuring comprehensive, but fair, environmental stewardship – are challenges that the Law of the Sea already addresses. Bilateral and multilateral treaties on specific issues – for example, the Arctic Search and Rescue Treaty – can help fill most of the gaps not directly addressed by the Law of the Sea. In terms of a governing body of law, however, the Law of the Sea, to include UNCLOS, is more than sufficient.

Commander Sean Fahey, United States Coast Guard, is currently assigned as the Associate Director for the Law of Maritime Operations at the Stockton Center for the Study of International Law at the U.S Naval War College in Newport, Rhode Island. He is also the Editor-in-Chief of International Law Studies. He can be reached at Sean.Fahey@usnwc.edu. 

The views and opinions expressed here are presented in a personal and unofficial capacity. They are not to be construed as official policy or reflecting the views of the United States Coast Guard or any other U.S. government agency. 

Sally DeBoer is currently serving as the President of CIMSEC for 2016-2017. She can be reached at president@cimsec.org.

Featured Image: Russian nuclear icebreaker NS 50 Let Pobedy (Sputnik/Vladimir Astapkovich)

Arctic

Russia’s Evolving Arctic Capabilities

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By Steve Micallef

Far from the battlegrounds of East Ukraine and Syria another confrontation with Russia is brewing. As the Arctic ice retreats countries with claims in the Arctic are more willing to extract the resources found in this inhospitable location. The U.S. estimates the Arctic seabed is home to about 15 percent of the world’s remaining oil, up to 30 percent of its natural gas deposits, and about 20 percent of its liquefied natural gas. Like the U.S., Canada, Denmark and Norway, Russia has its own claim on a section of the Arctic which it is now looking to defend and expand. Today we are witnessing a resurgent Russia in the Arctic, deploying more troops and equipment to the Arctic in support of its claims.

The Cold History

There is a long history of territorial claims around the North Pole; Canada was the first to claim sovereignty over vast areas of the arctic in 1925. This was followed by the Soviet Union in 1926 which claimed an area stretching from Murmansk, east to the Chukchi Peninsula and north, towards the North Pole including both the Mendeleev and Lomonosov Ridges. This was followed by claims from the U.S., Norway, and Demark that where never internationally recognized until 1999 and the adoption of the United Nations Convention on the Law of the Sea (UNCLOS). UNCLOS, the melting ice caps, and the vast amounts of natural resources on the sea floor are the root causes of current Arctic confrontations.

Overlapping Arctic claims and resources. (TheTimes.co.UK)

Under the provisions of UNCLOS, states have ten years after treaty ratification to claim and extend territorial limits beyond the 200-mile Exclusive Economic Zone provided by the convention. Russia ratified UNCLOS in 1997 and had until 2007 to apply for a concession. Whilst Russia has always looked at the Arctic as an integral part of Russian identity (indeed until the collapse of the Soviet Union, Moscow maintained a large presence in the Arctic), it was Vladimir Putin who revived Russian ambitions in the Arctic. In December 2001, Russia applied for an extension of territory, claiming that the Lomonosov Ridge is an extension of the Siberian continental shelf and therefore entitles Russia to a bigger claim in the Arctic. However, this was inconclusive and the UN commission neither rejected nor accepted Russia’s proposal, citing a need for more research.

In the face of the melting icepack the Russian administration has declared the Arctic a region of strategic importance for Russia; due to both the potential Northern Sea Route as well as the energy and rare earth element reserves under the ice. Since 2002, Russia has sent expeditions in support of it claims over Lomonosov Ridge, including a 2007 expedition that planted a Russian flag on the seabed. Vladimir Putin has also taken the bold step of increasing Russian military presence in the inhospitable north.

Icebreaker Development

Icebreakers are the cornerstone of any capability in the Arctic. Icebreakers have multiple uses from resupplying far-flung communities and outposts to scientific exploration, search and rescue, and ensuring that sea lines remain ice-free for shipping. They are the backbone of any presence in the Arctic, both military and civilian. In this department Russian Arctic capabilities are significant, especially when compared to those of other Western claimants.

Russian President Putin views a model of Project 21900 icebreaker ST PETERSBURG (Getty Images)

Russia has as many as 40 icebreakers, both nuclear powered and conventional (see table below). Although some of these vessels are relatively old, with many of them built during the Soviet era, Russia also has various new designs under construction. In total, there are currently some 14 icebreakers of various types being built in Russia.

Class Displacement in Tons Build Qty Comments
Nuclear Powered Vessels
LK-60Ya

(Project 22220)

 33,540 3 New class of nuclear powered vessels; will be the world’s largest icebreakers.
Arktika

(Project 10520)

 23,000 6 Soviet era nuclear vessels- 4 remain in service.
Conventionally Powered Vessels
Project 21900 & 21900M 10,000 2 & 3 2x 21900s are in service along with 2x upgraded 21900Ms (1 additional under construction)
Ilya Muromets Project 21180 6,000 4 First one expected to be delivered in 2017.
LK-25
Project 22600		 22,000 1 Largest diesel-powered icebreaker in the world; may be delivered in 2018 after several years’ delays.
Project 70202 3,8000 1 Oil spill response, fire extinguishing, and ecological monitoring vessel. Constructed by Finnish Aker Arctic Technology. A unique hull shape allows the vessel to operate efficiently sideways and backwards.
Aker Arc 130/A

 

 8,699 2 Constructed for Gazprom Neft for use as support ships in Arctic oilfields. Constructed by Aker Arctic.
Arc7 ice-classed LNG carriers 80,200 14 First delivered in 2016, others are under construction in Geoje, South Korea for service in the Arctic. Able to break through 2.1m of ice.

Of particular interest are the LK-60Ya nuclear ice breakers and Arc-7 LNG carriers. Three LK-60Yas are under construction; the first (the Arktika) was launched in June 2016 and will be commissioned in 2018 with others commissioning in 2019 and 2020. These vessels are intended for use in the Northern Sea Route along Russia’s Arctic coast and are capable of breaking through ice over nine feet thick.

SCF Yamal/ Christophe de Margerie, the first Arc-7 Ice Classed LNG carrier. (IHS)

The development of LNG and oil carrying ice-capable tankers is an area of particular economic interest for Russia. In this area, Russia is collaborating with Daewoo Shipbuilding and Marine Engineering in South Korea and an international consortium for the construction of the first Arc 7 ice-classed LNG carriers. The aim is to reliably deliver the LNG produced from the Yamal LNG project in the Yamal Peninsula.

Military Development

Icebreakers are not the only things Russia is constructing to help it control the Arctic. All along its northern frontier Russia has begun rebuilding and reoccupying its military bases, some of which have not been used since the end of the Cold War. Russia is upgrading its docking facilities in Murmansk, one of the few ports which is ice free year round and home to Russia’s nuclear icebreaker fleet, to provide more space for the larger nuclear icebreaker and submarine fleets.

Aerial facilities are also being upgraded to improve coverage over the Arctic. Since 2015 Russia has equipped six new bases in the region, both on the mainland and on islands. These have included airbases on the islands of Franz Josef Land, Severnaya Zemlya, Wrangel Island, Kotelny Island and Novaya Zemlya. On the mainland, the facilities at Mys Shmidta, including the port and the airport, are also being upgraded.

Russian military installations proximate to the arctic.

Moreover, the Russian Navy has stepped up its presence in the Arctic with a permanent base on Kotelny Island and in 2016 when it started using new facilities on Alexandra Land. Beyond the ability to conduct search and rescue operations and support other Russian forces operating in the Arctic (mainly through the use of submarine forces), the Navy is also looking to stop infiltration by other powers into sovereign Russian territory.

Weapons-wise, Moscow has deployed two long range S-400 regiments to Novaya Zemlya and the port of Tiksi alongside short range surface-to-air Pantsir-S1 systems to protect them. Arctic bases have also been reinforced with P-800 Oniks supersonic anti-ship missiles, although the number of these systems present in the Arctic remains unclear.

Ground forces are being deployed to the region as well. The 99th Arctic Tactical Group has been permanently deployed to Kotelny Island to protect and aid in the construction of the airfield and piers there. Two other formations, the 200th Independent Motor Rifle Brigade and the 80th Independent Motor Rifle Brigade, have been converted into Arctic Brigades. Both formations appear stationed in the Murmansk Oblast and seem to be equipped with two-tiered tractors, snowmobiles and other vehicles, including the DT-30P Vityaz articulated track vehicle. Allegedly, these troops receive reconnaissance, airborne, and mountain training.

All these elements are under the command of Russia’s Arctic Joint Strategic Command, recently formed in December 2014. This command is responsible for the training and operational employment of Russian assets in the region; including all combat units, radar stations, airfields and support units. Northern Fleet units based at Kotelny Island also fall under the authority of this command.

A Russian Northern Fleet warship transits Arctic waters with icebreaker escort in 2013. (RT)

Russian will continue to build new facilities in the future. A large year-round airbase is being built on the New Siberian Islands Archipelago, which will enable the deployment of Tu-95MS and Tu-160 bomber and the stealth PAK DA bomber in the future. A network of 10 Arctic Search and rescue stations, 16 deep-water ports, 12 new airfields and 10 air-defense radar stations is planned. The Russian Defense Ministry also recently announced it will build over 100 infrastructure facilities in the Arctic by the end of 2017. Together, these units and facilities will allow Russia to maintain a watchful eye over the Arctic, its oil reserves and, in the future, maritime shipping.

Conclusion

Russia has developed its Arctic capabilities to a level that was inconceivable a couple of years ago – one that has not been seen since the end of the Soviet Union. Nor is there is any sign that Russia will stop here – in November 2016 Putin called for accelerating development of the Arctic region. Whatever the outcome, these huge investments in the Arctic leave Russia in a much better position to exploit the benefits brought by the melting ice fields.

Steve Micallef graduated from the University of Malta with a B.A. (Honors) in International Relations in 2015. He also holds an MSc in Strategic Studies from the University of Aberdeen, Scotland. He currently works at Bugeja Geopolitical Consulting, Malta.

Featured Image: Russian arctic troops (Sputnik/ Valeriy Melnikov)

Arctic

Future Roles For The Arctic Council

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From author Ian Birdwell comes The Changing Arctic, a column focusing on the unique security challenges presented by the increasingly permissive environment in the High North. The Changing Arctic examines legal precedents, rival claimants, and possible resolutions for disputes among the Arctic nations, as well as the economic implications of accessing the region’s plentiful resources.

By Ian Birdwell

The Arctic Council logo.
The Arctic Council logo.

Founded in 1996 as a regional forum and tool to coordinate scientific research by nations within the Arctic Circle, the Arctic Council has grown in prominence over the past six years as global temperatures have risen. The Council is looked to as a means for facilitating research of the Arctic’s changing climate, and could potentially become the forum for resolving disputes in the high north. Unfortunately, the Council’s focus is narrowly defined to scientific diplomacy and promoting unity in scientific endeavors to enhance trust between its member states. In addition, the council may only make recommendations and is not a legal body.1 With the Arctic predicted to have the lowest amount of sea ice on record2 and grim predictions for the future, it becomes important to understand the Arctic Council and the impact its focus on scientific diplomacy will have on the Arctic in two key areas: military development and trade route controls.

While the Arctic Council has brought its member states closer through cooperative research, when it comes to military matters the Council has remained almost completely silent. In practice, the Council helps to coordinate the climate research from its members and develop specific trade guidelines, though there is some appetite to extend the Council’s role into other regional concerns, such as territorial disputes.3 The warming waters are seeing an increase of military activity from every major Arctic player with Russia,4 Denmark,5 Norway,6 Canada,7 and the U.S.8 all training and equipping their militaries for Arctic action. For example, over the past few years the United States has maneuvered to increase the presence of the U.S. military above the Arctic circle, yet recently appointed Arctic Ambassador, Mark Brzezinski, remains adamant about keeping the Council free of discussions of military matters.9 The Ambassador isn’t alone; the Arctic Council has stood resolute by mandates laid out in the Ottawa Declaration of 199610 strictly prohibiting the discussion of security matters by the council. With NASA predicting 2016 to have been the hottest year on record,11 it is becoming readily apparent the climate is not the only thing changing in the Arctic and it seems scientific diplomacy may not be enough to avert the course of arctic militarization forcing each nation to seek their own route to peace in the Arctic.

US Secretary of State John Kerry welcomed delegates to the SAO Plenary meeting which began on Wednesday October 5. Photos are available for use according to the creative commons license CC BY-NC-ND. Photo credit: Arctic Council Secretariat / Linnea Nordström
U.S. Secretary of State John Kerry welcomed delegates to theArctic Council SAO Plenary meeting  in Portland, Maine, which began on Wednesday October 5, 2016. (Arctic Council Secretariat / Linnea Nordström)

One of the caveats for obtaining Observer status on the Arctic Council is acknowledging of the primacy of UNCLOS regarding territory control, though the Arctic Council seems poorly poised to assisting in developing economic policies for exclusive economic zones. The Arctic Council formed the Arctic Economic Council in 201412 to begin to address economic concerns as ice sheets retreat. Since then, the Arctic Economic Council has done little of note other than work on expanding telecommunications access to the Northern reaches of North America. In the midst of these changes, the Arctic Council is putting itself behind the curve of climate change and making it more difficult for regulations to adjust to a changing economic climate.

A shorter trade route between Europe and East Asia would be a massive boon to the states and companies willing and able to adapt to the change as quickly as possible. Several observer states on the Arctic Council sought those positions in order to be close to Arctic nations for trade considerations on a future Arctic trade hub, which has led nations like South Korea to develop the infrastructure to become a refueling point for future Arctic shipping companies.13 The Arctic Council’s scientific diplomacy makes for great short-term policy to assuage fears of a warming Arctic by studying the changing climate, yet some believe the goals to partially reverse or stabilize global warming may be for naught in an already dramatically changing Arctic.14 Thus, scientific diplomacy may make it difficult for the Council to develop a role as a forum to address or mediate the concerns of Arctic nations especially in trade, and having the Arctic Economic Council’s most recent meeting focus on telecommunications sets both institutions behind the curve.15 In the midst of this action, investors are positioning themselves to make millions via the trade routes of the Arctic Ocean regardless of which nation legally controls those routes.

Regional state relations could change dramatically as the ice melts. Such a change could prove disastrous as the most prominent organization capable of mediating in the region has focused on a scientific approach to a problem involving the fate of millions of dollars of trade and the armed forces of five nations.

Ian Birdwell holds a Bachelor’s Degree in Government and International Politics from George Mason University.

1. Arctic Council, “The Arctic Council: A backgrounder.” May 23, 2016.

2. Rosen, Yereth, “Persistent Arctic and sub-Arctic warmth expected to continue for months,” Alaska News Dispatch. May 29, 2016. <http://www.adn.com/arctic/2016/05/29/persistent-arctic-and-subarctic-warmth-expected-to-continue-for-months/>

3. Martinson, Erica, “Ambassador to the Arctic:Meet President Obama’s point man for Alaska,” Alaska News Dispatch. January 30, 2016.<http://www.adn.com/politics/article/ambassador-arctic/2016/01/31/>

4. The Arctic, “Russian Defense Ministry to complete Arctic military infrastructure by 2020,” The Arctic With Support from the Russian Geological Survey. August 18, 2016.<http://arctic.ru/infrastructure/20160818/413312.html>

5. Rahaman, Shifa “Denmark maneuvering to increase military foothold in the Arctic,” The Coppenhagen Post. June 23, 2016. <http://cphpost.dk/news/denmark-maneuvering-to-increase-military-foothold-in-the-arctic.html>

6. Nilsen, Thomas,“Norway patrolling Russia’s military activity in Arctic with new intelligence vessel,” Radio Canada International. May 24, 2016. <http://www.rcinet.ca/eye-on-the-arctic/2016/05/24/intelligence-vessel-arctic-russia-norway-military/>

7. Hinchey, Garrett “Canadian, U.S. Troops share knowledge at Arctic military operation” Canadian Broadcasting Corporation <http://www.cbc.ca/news/canada/north/how-to-land-a-hercules-operation-nunalivut-1.3530258>

8. Schehl, Matthew L. “Marines hit the Arctic for largest winter exercise since the Cold War.” Military Times. March 2, 2016. <https://www.marinecorpstimes.com/story/military/2016/03/02/marine-hit-arctic-largest-winter-exercise-since-cold-war/81161832/>

9. Martinson, Erica, “Ambassador to the Arctic:Meet President Obama’s point man for Alaska,” Alaska News Dispatch. January 30, 2016. <http://www.adn.com/politics/article/ambassador-arctic/2016/01/31/>

10. Arctic Council “The Arctic Council: A backgrounder” May 23, 2016

11. Milman, Oliver, “Nasa:Earth is warming at a pace ‘unprecedented in 1,000 years,” The Guardian. August 30, 2016. <https://www.theguardian.com/environment/2016/aug/30/nasa-climate-change-warning-earth-temperature-warming>

12. Arctic Economic Council, “Arctic Economic Council Backgrounder,” 2016 <http://arcticeconomiccouncil.com/about-us/backgrounder/>

13. Chaturvedi, Ipshita, “Arctic Opportunities” The Indian Express. August 10, 2016. <http://indianexpress.com/article/opinion/columns/arctic-region-opportunities-south-korea-india-2964498/>

14. Rosen, Yereth, “Arctic Council uses Fairbanks meeting to think about the future” Alaska News Dispatch. May 31, 2016. <http://www.adn.com/arctic/article/arctic-council-uses-fairbanks-meeting-take-long-term-view/2016/03/19/>

15. Northam, Jackie “U.S.-Russia relations are frosty but they’re toasty on the Arctic Council” National Public Radio. June 16, 2016. <http://www.npr.org/2016/06/16/482279767/u-s-russia-relations-are-frosty-but-theyre-toasty-on-the-arctic-council>

Featured Image: The view from the deck of the Nordic Odyssey (with the tugboat the Vengery in the foreground), as the ship sailed from Murmansk, in Russia, to Huanghua, in China, in July 2012. (Davide Monteleone)