The current issue of Foreign Affairs magazine contains an article by Scott Borgerson, titled Arctic Meltdown. The article correctly points to the effects of global warming in the Arctic, to melting ice, to new shipping lanes, to new possibilities for extracting minerals and to increased access to fish and timber. Mr. Borgerson raises many questions that need to be addressed.
It is therefore disturbing, to say the least, to read his assertions that the Arctic region is not currently governed by any comprehensive multilateral norms and regulations. The reason for this, he says, is that the Arctic was never expected to become a navigable waterway or a site for large-scale commercial development.
At the same time, he suggests that certain Arctic powers (Canada, Russia, Denmark and Norway) are scrambling for territory and "racing to carve up the region." He even suggests that the region could "erupt in an armed mad dash for its resources." This description is not only misleading, it is an utterly irresponsible way of describing the situation.
The United Nations Convention on the Law the Sea is the comprehensive multilateral regime that applies in the Arctic. There is nothing to suggest otherwise.
As far as the rights of coastal states are concerned, the convention distinguishes between territorial sea, the exclusive economic zone and the continental shelf. Apart from the territorial sea, which extends 12 nautical miles from the baselines, the questions that arise in the Arctic are definitely not about territory over which states have sovereignty.
The point of departure when it comes to the exclusive economic zone and the continental shelf is that the rules that govern the high seas apply, in particular the principle of freedom of navigation. According to the convention, no state may validly purport to subject any part of the high seas to its sovereignty, and every state has the right to sail ships flying its flag on the high seas.
Of particular interest is the extent to which the coastal states in the Arctic can lay claims to the continental shelf beyond the 200-nautical-mile exclusive economic zone. This is a matter to be determined by the Commission on the Limits of the Continental Shelf in accordance with specific rules laid down in the convention.
The first application received by the commission was the one made by Russia in 2001. It was made in accordance with applicable rules; it is certainly not an "ambitious annexation," as Mr. Borgerson suggests. The commission did not approve the application as presented; the matter is still pending.
It might be tempting to refer, as Mr. Borgerson does, to the planting of the Russian flag on the sea floor near the Pole. But legally, this ceremony is completely irrelevant. Any suggestion to the contrary should be effectively rebutted, and this is precisely why it is so important to refer to and rigorously apply the Law of the Sea Convention, which forbids assertion of sovereignty over the high seas.
As chairman of my country's delegation in three maritime delimitation negotiations with neighbouring states, I know from experience that the convention is of tremendous assistance in finding solutions where, otherwise, tensions of a political nature might arise.
It is therefore surprising to note that the United States has still not ratified the convention. Mr. Borgerson suggests that Washington should lead the way toward a multilateral diplomatic solution in the Arctic. I believe there are many who would agree that the best way for the U.S. to achieve this would be to ratify the Law of the Sea Convention and to unite with the more than 150 other states that have already done so, among them the other four Arctic coastal states, in respecting the rules laid down in the convention.
It should also be mentioned that sea areas in the Arctic that will not constitute exclusive economic zones or continental shelf will belong to an area, the resources of which are referred to in the Convention as the "common heritage of mankind."
There are clear provisions to the effect that no state shall claim or exercise sovereignty or sovereign rights over any part of this area or its resources.
The fact that the Law of the Sea Convention applies in the Arctic certainly does not mean that there is no need for further work at the international level. Indeed, there is, in particular for the protection of the environment in this extremely sensitive area.
The Convention already contains explicit rules that oblige states to protect and preserve the marine environment. According to these rules, states have the sovereign right to exploit their natural resources pursuant to their environmental policies. But this must always be done in accordance with their duty to protect and preserve the marine environment.
Here, there is a great need for states, both at the global and regional level, and in particular the Arctic states, to join hands with a view to elaborating such new rules and establishing such new measures and regimes that will be necessary because of the changing conditions in the Arctic. This applies in particular to measures designed to prevent, reduce and control pollution of the extremely sensitive marine environment in the region.
The convention contains express provisions on the need for such rules and regimes, including even special rules that apply to ice-covered areas.
So, contrary to what Mr. Borgerson asserts, there are clear rules that govern the Arctic. If these rules are respected by all states, including in particular by the United States, there should be no risk for the Arctic descending into armed conflict.
Hans Corell, undersecretary-general for legal affairs of the United Nations, 1994-2004, was responsible for supervising matters relating to the law of the sea, including the establishment of the International Seabed Authority, the International Tribunal for the Law of the Sea, and the Commission on the Limits of the Continental Shelf.