ABSTARCT

The Arctic has for long been a portion of the earth surface that is
characterised by severe atmospheric condition as a result of the huge
amount of ice formations. As a matter of fact, about seventy five
percent of the arctic regions are inhabitable due to the extreme
coldness of the area.

Over time, countries of the world especially those who surround the
region do not see much importance in the sovereignty of the region
despite the vast resources underneath the ice formations.

With the recent depletion of the ozone layer and the attendant
consequence of the melting of the region, the arctic is becoming more
and more accessible with the modern sophisticated vessels. It has also
been recently discovered that the

November,2007

Electronic copy available at: http://ssrn.com/abstract=1278093

THE SCRAMBLR FOR THE ARCTIC AND INTERNATIONAL LAW

BY

YEKINI ABUBAKRI OLAKULEHIN, LL.B (Hons)

INTRODUCTION

The Arctic is the region around the North Pole with series of Islands,
Ice-formations and Seas. The region has an extensive territorial
expanse of a frozen hinterland but with melting Polar ice caps.

The Arctic climatic condition is extremely cold as a result of the ice-

formations. It is generally not habitable by man because of the climatic
condition. Although there are some spartial settlement in some of the
Arctic Islands.

The Arctic is characterised with enormous resources ranging from

series of aquatic endowments like some species of fishes that have not
been found in other regions of the worlds. The Arctic has also been
reported for various scientific researches and break-through. Just
recently, a US Geological Survey estimates that about 25% of World’s
undiscovered oil and gas remain locked up deep beneath the frigid
waters.

Prior to the 19th century, the Arctic was not given much importance
because of the ice formations. In short, the condition of the Arctic has
not made it to be that accessible. With the recent incidences of global
warming, the polar ice caps have been melting at unprecedented rate.

The implication of this is that, the ice may soon pave way for a more
accessible and exploitable Arctic. With the melting, the Arctic becomes
more and more navigable. In essence, the immense oil reserve could be
exploited and the need to claim sovereignty over this area becomes one
of contest.

Electronic copy available at: http://ssrn.com/abstract=1278093

No wonder, all the Arctic States i.e. US, Canada, Russia, Norway and
Denmark have all laid claims to sovereignty over parts or whole of the
arctic. The most recent of them being Russia’s expedition and planting of
her flag at the ocean bed of the North Pole.

This paper will consider the practice of rights of ownership over the
Arctic prior to the regime of the UNCLOS and the post-UNCLOS regime
of ownership as it affects the Arctic region.

OWNERSHIP RIGHTS OVER THE ARCTIC PRIOR TO UNCLOS

The territory of the Arctic could be divided into: Lands (both discovered
and undiscovered), the ice formations, the sea region and then air
region. All of these will be discussed separately for the purpose of lucid
exposition.

• DISCOVERED LANDS AND ISLANDS

As it was observed under an earlier discussion as to the modes of

acquisition of territories, a State could acquire sovereignty over lands
or islands that are discovered by it. According to a continuous and well
accepted doctrine of international law, it is necessary in other to justify
sovereignty over newly discovered territory, not merely to discover it,
but to follow discovery by “effective occupation”

The doctrine of effective occupation presupposes a form of permanent

settlement or colonization. It is not enough to just conduct hunting
operations.

The rigours of climate and other physical conditions could not make
lands in the arctic to be acquired in the orthodox legal method. Hence,
the principle of “effective occupation” has been substituted with the
fact that sovereignty ought to attach to littoral State according to
“region of attraction”.

This has been the practice of the Arctic States and even similar
practice occurs in the Antarctic. This is how all the arctic States

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acquired sovereignty over all the lands and islands in their sector of
“region of attraction”. Hence, it is not open for a Non-Arctic State to
acquire any portion of land in the arctic. This is so because they don’t
have any reasonable interest in the Arctic except those that are
scientific.

No wonder, in 1909, the Canadian government declare that if any

lands and island situated between the Dominion and the North Pole
were to be claimed by any one, Canada would consider them all her
own. The USSR in 1926 declared that all lands discovered and those
yet to be discovered between USSR and the Pole belong to USSR. This
is the practice of the Arctic states during the period under review.

• UNDISCOVERED LAND AND ISLANDS

It follows from the immediate discussion regarding ownership of

discovered land that unknown territories, yet to be discovered in the
arctic region or all lands which could be described as terra nullius
must be conceded to be under the sovereignty of the adjacent Polar
State in the region of attraction in which they are found.

The government of various Arctic State have declared that all lands and
islands discovered or yet to be discovered which is located between the
country and the Pole fall under the territory of the State in question.

ICE FORMATIONS

It is obvious from scientific researches in the Arctic that the area of ice
and water are greater than that of land. There are various forms of ice
formations in the Arctic. There are ice-fields of a more permanent
nature, some are floating ice. There are various schools of thought as
to the legal status of ice-formations. Some argued that all ice
formations should be treated as part of the sea as they are not lands.
Some argued that only the floating ice formation is regarded as part of

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the sea while those are of permanent nature be regarded as land.
Another set of jurists posit that the floating ice formations could be
likened to a ship. If a ship is capable of ownership, then floating ice
formations could form part of the territory (land) and be subject of
ownership. It must be noted however that there is no agreed practice of
Polar states in this area.

In fact, no Polar state had made a categorical claim of ownership over

any ice formation. We are of the opinion that ice-formation whether
movable or immovable be categorized as part of the sea since it is
standing on the sea and sooner or later it could dissolve into the sea as
current climatic situation is revealing. Once, such ice-formation is not
part of the territorial waters of the Arctic states, then they may not be
entitle to claim sovereignty over it as it has formed part of the sea.

SEA REGION

The sea region that are under consideration are waters that are outside
the ‘’territorial water’’ of the Arctic states. As a result of lack of
established practice in the Arctic, there has been divergence of opinion
on the legal status of the sea region of the Arctic. Writers like Waultrin
and Balch classified such seas as high seas and as such are not
subject of ownership of the Arctic States.

Fauchille and Heilborn preferred the doctrine of multilateral

condominium, meaning that the Arctic states all have right to the
exploitation of the seas jointly. Korovin was of the opinion that the sea
regions are part of the ‘’ national waters’’ of the Arctic states.

Lakhtine after reviewing all the doctrines stated above however asserts
that taking into account the peculiarities of the Arctic Ocean and the
legal status of the adjacent territories and ice, the doctrine of high sea
will be quite unsatisfactory when applied to the Arctic region. He
concluded that sovereignty should attach to the polar states over the
Arctic Ocean within their sectors of attraction however with qualified

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jurisdiction with respect to right of innocent passage of all naval
vessels.

AIR REGION

It goes without saying that a state has sovereignty over all the
territorial limits of the state including the atmosphere. Hence, the polar
state has sovereignty over the air region of the part of their territorial
although with qualified jurisdiction in terms of innocent passage of
aircraft of foreign sovereign. However, it is not clear whether the polar
states have sovereignty over the polar seas. This arises because of the
opinion that the Polar sea forms part of the high sea and it is mare
liberum.

OWNERSHIP UNDER THE UNCLOS REGIME

International law has been said to be dynamic. One of the dynamics

and changing nature of international law could be seen in the area of
ownership especially as regards territorial waters and the high sea.
Prior to this convention, the concept of the freedom of the high sea has
thrived, a concept developed in the 17th century. Then national nights
were limited to a specified belt of water extending from a nation’s
coastline, usually three nautical miles, according to the ‘canon shot’
rule developed by the Dutch Jurist Cornelius Bykershock.

All waters beyond these three nautical miles are regarded as

international waters-free to all nations but belonging to none of them.
This is in accord with the principle promulgated by Hugo Grotius.
However, growing concerns over foreign fishing vessels and pollution,
and knowledge of the rich mineral and oil wealth under the sea floor
changed the whole principle. In 1954, U.S President Harry Truman
jettisoned the freedom of the sea doctrine and declared that U.S has
exclusive ownership of hundreds of kilometres of waters beyond her
borders. Some of the South American states also extended their

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jurisdiction to a distance of 200 nautical miles while other nations
extended theirs by twelve nautical miles.

HISTORICAL BACKGROUND TO UNCLOS

In a bid to regularise the practice of states with respect to territorial

waters and the high seas, the United Nations held its first conference
on the Law of the Sea (UNCLOS) at Geneva, Switzerland in 1956. This
brought about four treaties in 1958. They are:

• Convention on the territorial sea and contiguous Zone,

1964.

• Convention on the Continental shelf, 1964

• Convention on the High Seas,1962

• Convention on the Fishing and Conservation of Living Resources

of the High Seas, 1966.

The second conference was held in 1960 but did not result in any
international agreement. The United Nations conference on Law of the
sea (UNCLOS) is the international agreement that resulted from the
third UNCLOS conference that took place between 1973 to 1982. The
convention came into force in 1994.

SOVEREINGTY UNDER THE UNCLOS

The UNCLOS, 1982 has succeeded in clearly defining the territorial

sovereignty of every state. The convention had more or less
incorporated the earlier practice of extension of territorial waters to 200
nautical miles.

Under the UNCLOS, a coastal state now has sovereignty over the
following:

• Internal water: This covers all waters and water ways on the
landward side of the base line.

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• Territorial waters: This covers twelve nautical miles from the baseline

• Contiguous Zone: This covers additional twelve nautical miles from

the territorial waters limit

• Exclusive Economic Zone: This covers two hundred nautical miles

from the baseline

• Continental Shelf: this has been defined as the natural prolongation

of the land territory to the continental margin’s outer edge or two
hundred nautical miles from the baseline, which ever is greater. States
continental shelf may exceed 200 nautical miles until their natural
prolongation ends, but it may not exceed 350 nautical miles.

Under the convention, all waters outside these ones stated form part of
the high seas. The convention establishes an international seabed
Authority to be responsible for the administration of the resource of the
high seas. The ISA is to grant licenses to minners and whoever is to
exploit the high seas. The royalty generated by the ISA is to be
distributed among nations of the world. (For developmental purpose)

THE UNCLOS AS IT AFFECTS THE ARCTIC

It is obvious that the UNCLOS has provided for an international regime

of ownership of territorial waters. With this, no country owns the Arctic
Ocean and the North Pole. Under the UNCLOS, each country with a
coast has the sole exploitation rights in a limited ‘’Exclusive Economic
Zone ‘’ beyond which mineral resources are controlled by the
International Seabed Authority (ISA). However, upon ratification, each
country was given a ten years period within which to make claims to
extend its Zone.

Since the coming into force of the convention, no Arctic state could
claim sovereignty over an area beyond two hundred nautical miles of
its baseline. Hence, all theories as to the ownership of the sea regions

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and ice-formations in the Arctic prior to 1994 may no longer hold water
today as the law has change in this area.

Meanwhile, the convention allows for claims for the extension of the
territorial waters of a State and a commission on the limit of the
continental shelf was established to see into such claims when they
arise. It should be noted that a country could only have genuine claim
if she could prove that her land extended beyond the two hundred
nautical miles. Norway ratified the convention in 1996, Russia (1997),
Canada (2003) and Denmark did in 2004. The United State is yet to
ratify the convention. Russia made the first claim in 2001. Others are
still preparing their facts. What the outcome of the commission will
remains anyone’s guess.

It has been suggested that Russia may make the stronger claim to
some sector of the Arctic. This is so because; she has been making
serious efforts towards effective occupation of the Arctic.

The country happens to be the first to get to the floor of the Arctic
Ocean. She’s the first to plant her flag in the Arctic. All these are
indices that will favourably work for Russia at the commission.

The United State is seriously considering ratifying the convention so as

to get a seat at the commission and of course to be able to lay her own
claim to sectors of the Arctic. Without ratification, the various claims
will be considered and recommendation made may be binding on the
US.

CONCLUSION

The issue of the scramble for the Arctic is a very serious one with the
sudden melting of the ice formations. Greater advantages are coming.
It could be a faster route between Europe, Asia and even America. The
oil reserve could make it to be add or die affair as the US is battling
with how to destabilize OPEC and gain control of the international oil
market.

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It has also been suggested that Russia’s flag is most benign than
most, reflective of a more ‘’ aggressive ‘’ Russia, seeking to reclaim
through energy dominance, the global stature once held by the Soviet
Union. The country believes that the “Arctic always was Russia, and it
will remain Russia ‘’. Any recommendation to the contrary by the UN
commission may be disregarded by Russia. With the current trend
between Russia and United States, the scramble for the Arctic may be
sending the world back to the cold war if military actions will not be
used to defend the Arctic regions.

REFERENCES

1) Malcolm Show: International Law, 5th Edition (2004)

2) Andrew Chung: The Arctic Cold War, August (2007): The Star.
Com

3) United Nations Convention on the Law of the Sea, 1982

4) en.wikipedia.org

5) Anne Penketh: Russia Claims North Pole, The Independent 3rd

August 2007. Independent News and Media Limited (2007)

6) Barbara Slavin: White House Sees Black Gold in Melting Sea

Ice. 2nd August 2007, USA TODAY

7) W. Lakhtine: Right over the Arctic, 24, AJIL, 1930

8) Oppenheim: International Law, Ninth Edition Volume 1,

Jennings And Watts

9) U.O Umozurike, Introduction To International Law

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10) D.J Harris: Cases Materials On International Law Fifth
Edition

11) David H. Ott: Public International Law In The Modern World

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