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  • Writer's pictureKeith Fraser

Canada's Claims to the Arctic


A dispute is brewing at the top of the world. At issue is: (1) control over the vast reserves of oil and natural gas in the Arctic region; and (2) control over what will soon be the ice-free shipping lanes of the Northwest Passage.


There are eight nations with borders within the Arctic Region. These Arctic States are Canada, Denmark (Greenland), Russia, Finland, Sweden, Norway, Iceland and the United States (Alaska). Each one of these states asserts various territorial and maritime claims in the Arctic. While there is widespread agreement among the Arctic States on many of these claims, particularly the territorial claims, there remains staunch disagreement with respect to numerous maritime claims. As one would expect, resolution of these maritime claims is the key to controlling the riches associated with both the Arctic’s energy reserves and the fabled Northwest Passage.


Canada in particular stands to gain immensely from a resolution of these claims in its favor. An analysis of Canada’s legal maritime claims in the Arctic under applicable international law shows that Canada’s claims are well supported. As a result, Canada is in a strong position as it endeavors to resolve disputes with other Arctic Nations. Indeed, Canada should ultimately prevail if such claims are adjudicated.


What the Fuss is About


6% of the Earth’s surface lies above the Arctic Circle. Of this, about 1/3 is above sea-level. Another 1/3 is in the form of continental shelves lying under less than 500 meters of water. The remaining 1/3 consists of deep ocean basins.


Onshore, much energy exploration has already occurred. According to the U.S. Geological Survey, more than 40 billion barrels of oil, 1,136 trillion cubic feet of natural gas and 8 billion barrels of natural gas liquids have been developed in the Arctic. The U.S.G.S. has also run an assessment of undiscovered oil and natural gas reserves in the region. While it found that the deep ocean basins are unlikely to hold any appreciable energy reserves, it also concluded that the continental shelves are a veritable treasure trove. Specifically, according to U.S.G.S. estimates, hidden within the continental shelves lies between 22 and 256 billion barrels of oil and as much as 2,990 trillion cubic feet of natural gas. These numbers are significant. The mean estimate of undiscovered oil reserves is more than double the amount of oil that has been previously found in the Arctic. Also, the median estimate of undiscovered natural gas in the Arctic represents about 30% of the world’s undiscovered reserves.


The accelerated effects of Global warming in the Arctic, along with technological advances, high energy prices, and the lack of new energy finds elsewhere has set off a flurry of interest in Arctic drilling and a corresponding firestorm of geo-political posturing. Most publicized perhaps was Russia’s gesture in 2007 of planting a Russian flag on the sea floor under the North Pole. But since then, nearly every Arctic Nation has followed up with more ominous conduct. In 2008, Norway purchased four dozen Lockheed F-35 fighter jets, specifically chosen because of their suitability for Arctic patrols. Thereafter, this past March, Norway used them to engage in Arctic war games involving over 7,000 soldiers. In June, Sweden held its largest northern military exercise since the end of the Second World War. In July, Denmark revealed plans to build up its Arctic military capabilities in the Arctic, including the implementation of a new Arctic Command. Not to be outdone, Russia recently announced its intent to create an Arctic Special Forces unit and promised to modernize its northern fleet. It has even sent long-range bombers into the Arctic with one such flight reportedly crossing over into Canadian Airspace in July. This prompted Canadian Defense Minister Peter Mackay to famously affirm and assert Canada’s sovereignty over its Arctic territory: “Any country that is approaching Canadian airspace, Canadian territory, will be met by Canadians.” Canada has also since increased the size of its Arctic military exercises and the Canadian Government has promised new northern bases and infrastructure. There is no doubt. Arctic Nations are scrambling to assert whatever control they can over what everyone agrees are untold riches of increasingly scarce and increasingly valuable natural resources.


And then there is the Northwest Passage. One day, the fastest way between Asia and Europe will be across the Arctic Ocean from the Bering Strait in the West to Baffin Bay and the Davis Strait in the East. There are a number of possible routes but the quickest and most likely to be ice-free for extended periods of time are those that traverse through Canada’s Arctic islands. The savings in time and cost will be enormous. For example, travel time from Japan to the Netherlands would be cut in half. Moreover, ships travelling through the Northwest Passage will not be limited to the maximum size currently permitted through the Panama Canal, the so called Panamax Ships.


When will the Northwest Passage will be fully navigable? Likely sooner than anyone thinks. In September 2007, the European Space Agency used a series of satellite photos to establish that an ice-free route through the Northwest Passage existed for the first time in modern history. In September 2008, the MV Camilla Desgagnes became the first commercial ship to traverse the Northwest Passage when it set out from Montréal and delivered cargo to Nunavut’s Victoria Island in the Western Arctic. The crew reported that it “did not see one cube of ice.” And in August of this year, satellite imagery again showed that an ice-free route through the Passage was open. This trend is expected to continue. Most scientists agree that ice-free summers through the Northwest Passage are inevitable.


A clear, fully navigable Northwest Passage would not just transform global shipping. It would facilitate Canada’s exploration and exploitation of resources in the area and even alter the strategic focus with respect to global defense. Controlling and enforcing these valuable waterways would not only prove to be a financial boon for Canada, it would shift geo-political power clearly in favor of Canada. This is especially true with respect to its relationship with the U.S.


The Law of the Sea


Notwithstanding the military posturing of the Arctic Nations, the countries have generally agreed to follow international law with respect to Arctic territorial and maritime claims. The relevant International Law applicable to Canada’s maritime claims is the 1982 United Nations Convention on the Law of the Sea (UNCLOS). Also relevant is International Customary Law, which is in some respects different than UNCLOS and may be applicable to some of Canada’s Arctic claims. Furthermore, UNCLOS is only binding on its signatories and the United States is not a signatory to UNCLOS (however, the U.S. has indicated that it would follow UNCLOS with respect to Arctic maritime claims). All other Arctic Nations are signatories.


Pursuant to UNCLOS, a country’s maritime rights, the extent a country can exercise control and jurisdiction over adjacent waters and sea beds, is defined by five Maritime Zones. Each Maritime Zone is measured from a Baseline, the point where the country’s territory begins and its maritime rights begin. Normally, the Baseline follows the country’s coastline at the low tide level.


The first Maritime Zone is called the Territorial Sea. It runs from the Baseline (the coast at low tide level) to 12 miles toward the ocean. A country is sovereign over its Territorial Sea, including the water in it, the air above it, and the sea bed and subsoil underneath it. But there are exceptions to that sovereignty. The primary exception is the Right of Innocent Passage. This means that another nation’s ships have the right to travel through a country’s Territorial Sea toward the country’s coast or toward the High Sea.


The second Maritime Zone is Internal Waters. These are any waters that are not along the coast. Importantly, it also covers waters that are along the coast or along islands but on the landward side of the Baseline used to determine the Territorial Sea. A country is absolutely sovereign over its Internal Waters and can enforce its laws over persons and activities within them.


The Third and Fourth Maritime Zones are referred to as the Contiguous Zone and Exclusive Economic Zone (EEZ) respectively. These zones extend a country’s maritime rights out beyond the Territorial Sea. For the Contiguous Zone, maritime rights are extended another 12 miles beyond the Territorial Sea and for the EEZ, an additional 200 miles. Pursuant to UNCLOS, within its Contiguous Zone, a country can exert any control necessary to prevent the “infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or Territorial Sea.” Within its EEZ, a country has the sovereign rights for the purpose of exploring, exploiting, conserving and managing the natural resources of the waters, seabed and subsoil.


The Fifth Maritime Zone is referred to as a country’s Continental Shelf. This comprises the sea bed and subsoil of the areas that extend beyond the Territorial Sea throughout the natural prolongation of the country’s land territory to the outer edge of the continental margin. At a minimum, the Continental Shelf extends 200 miles from the Baseline used to determine the Territorial Sea. However, the extended Continental Shelf can be 350 miles from the Baseline or 100 miles beyond the first 2,500 meter depth line. A country has the right to explore and exploit the resources of its Continental Shelf.


Canada’s Maritime Claims


Canada’s first Maritime Claim of note with respect to the Arctic is its claim that the Northwest Passage is exclusively Canada’s Internal Waters. This claim arises from the fairly straightforward claim by Canada of a 12-mile Territorial Sea from the Baseline surrounding the Arctic Archipelago. Such a claim is permitted pursuant to the plain language of UNCLOS. As noted, the Northwest Passage winds its way through the islands that make up the Canadian Archipelago. Accordingly, the Northwest Passage route would be comprised solely of waters that are along the Canadian coast and/or islands but on the landward side of the Baseline used to determine the Territorial Sea. This is the very definition of Internal Waters.


Notwithstanding the plain language of UNCLOS, other Arctic Nations, the United States in particular, have contested this claim. These countries argue that the Northwest Passage is an International Strait. An International Strait is a body of water that links two open seas and that is used for maritime navigation. There has been only one published opinion interpreting the definition of International Strait, the Corfu Channel Case of 1949, and the opinion’s applicability to the Northwest Passage, especially in light of the UNCLOS definitions, is unclear. Most commentators agree, however, the Canada’s claims would likely carry the day.


Another Canadian maritime claim that the U.S. disputes is the delimitation of Canada’s Maritime Zone in the Beaufort Sea. This area, between Alaska and Canada’s Yukon Territory, is considered to contain rich reserves of oil and natural gas. Each country claims a small sliver of area at the outermost boundary of the Maritime Zone. The issue remains unresolved. In January of this year, in one of his last acts in office, President Bush issued a directive on U.S. Arctic Policy wherein he asserted, among other things, U.S. sovereignty over the disputed area and stated that the dispute should be heard under UNCLOS. President Obama has not indicated whether the U.S. would adhere to President Bush’s policy acknowledging only, during his campaign last year, the need to cooperate with Canada on energy issues.


Canada has also claimed jurisdiction to its Continental Shelf to the extent permitted under UNCLOS. Canada has yet to assert these claims in detail as it is currently undergoing extensive mapping of its Continental Shelf. Under UNCLOS, it must submit its Continental Shelf claims to the UN Commission by 2013. However, what is certain is that Canada and Russia will dispute ownership of the Lomonosov Ridge. The Lomonsov Ridge is an immense underwater mountain range that extends across the Arctic Ocean floor from Siberia to Ellesmere Island (an island in Canada’s Northern Arctic Archipelago) and Greenland. The dispute centers on whether the mountain range is an extension of the North American continent or of the Russian continent.


Russia has already submitted its Continental Shelf claims to the UN, which included a claim to the entire Lomonosov Ridge. The UN recently all but rejected these claims stating that they lacked supporting evidence. Russia has indicated that it would produce additional information in support of its claims in due course.


As noted, Canada has yet to complete its mapping. However, at the 2008 International Geological Congress in Oslo, Canada submitted initial findings of its sea floor mapping activity which asserted that the entire Lomonosov Ridge is an extension of Canada and therefore included within Canada’s Continental Shelf maritime claim.


The general consensus among researchers is that Canada’s claims to the Lomonosov Ridge hold more merit than Russia’s. The critical finding so far appears to center on the nature of the contact between the Lomonosov Ridge and the North American and Siberian continental crust respectively. On the Siberian side, the contact between the Lomonosov Ridge and the Siberian shelf is faulted. This indicates that the origin of the ridge is not the Russian continent. On the Canadian side, there appears to be a greater geological continuity between Ellesmere Island and the Lomonosov Ridge, indicating that the ridge extends from the North American continent. Both countries continue with their research and mapping of the area. The prize of course is thousands of square miles of Continental Shelf teeming with oil and natural gas deposits.


Conclusion

Canada’s legal claims in the Arctic, both territorial and maritime, are sound. UNCLOS is generally regarded as providing the proper authority to settle disputes with respect to maritime claims. Canada’s maritime claims are fairly straightforward and follow closely the plain language of this Treaty. As a result, Canada’s claims are likely to be upheld if tested.

However, there is much at stake in the Arctic. Each Arctic Nation, including the powerhouses of Russia, the U.S., and those backed by the European Union, has weighed in against Canada’s interests in the Arctic. Accordingly, Canada must remain ever vigilant and must never waiver in asserting its sovereignty in the Arctic. Moreover, Canada should not hesitate to avail itself of international law to quickly quash any dispute that threatens its sovereignty claims. If it can prevail in the Arctic, what awaits Canada in the 21st Century is secure status as a leading world power.


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