Taking Stock of the “Race(s) for the Arctic”

By Kathrin Keil Despite ever more frequent acknowledgement that violent conflict in the Arctic over its increasingly accessible resources is rather unlikely, there is still frequent talk about the ‘race for the Arctic’. This metaphor is more than a bit superficial; the following tries to shed some light on the ‘race’ going on in the Arctic.

First, ‘race’ implies competition about something; someone is trying to achieve something before anyone else. In this case, one must ask who is competing or racing against whom. Who is running, and who is leading?

In the media, one regularly comes across at least two interlinked Arctic ‘races’. One is the race for the right to determine certain sovereign rights in the Arctic, the other the race for Arctic resource development, predominantly the extraction of hydrocarbon resources.

Race for sovereign rights

The race to determine sovereign rights in the Arctic concerns mostly overlapping areas for jurisdiction over the Arctic coastal states’ extended continental shelves.[i] The US, Canada, Russia and Denmark have such overlapping claims in Arctic waters. But in fact, countries are not racing against each other but rather against institutional deadlines set by the United Nations Convention on the Law of the Sea (UNCLOS). The crucial provision is to be found in Art. 4 of Annex II to the Law of the Sea Convention, which says that:

Where a coastal State intends to establish, in accordance with article 76, the outer limits of its continental shelf beyond 200 nautical miles, it shall submit particulars of such limits to the Commission along with supporting scientific and technical data as soon as possible but in any case within 10 years of the entry into force of this Convention for that State.

Canada has to submit its evidence for the outer limits of its continental shelf by 2013, Denmark by 2014.  Russia ratified the Convention in 1997 and submitted its claim to the Commission on the Limits of the Continental Shelf (CLCS) in 2001. However, the submission was returned with the request for further information and evidence. Russia aims to resubmit in 2013 or 2014.

Norway had its deadline in 2006 and the country did submit that year. With minor adjustments, the CLCS in 2009 included Norway’s request into its recommendations, adding three new areas to the Norwegian continental shelf.[ii] The US has not (yet) ratified UNCLOS and thus cannot submit to the CLCS.

So while there is a certain race here to meet the deadline, the 18th Meeting of the State Parties to UNCLOS in 2008 made sure to take some speed and urgency out of the race. They decided that

the time period referred to in article 4 of annex II to the Convention […] may be satisfied by submitting to the Secretary-General preliminary information indicative of the outer limits of the continental shelf beyond 200 nautical miles and a description of the status of preparation and intended date of making a submission in accordance with the requirements of article 76 of the Convention.[iii]

While this was adopted first and foremost to release pressure from developing countries with limited financial and technological resources and capacities, one could understand this rule to say, in essence, that no formal deadline for a full submission exists anymore.[iv]

Additionally, the boundaries that are still disputed in Arctic waters are not relevant for the ‘race’ to complete the procedure set out in Art. 76 of UNCLOS. The CLCS will not rule on any area of overlap between countries. In other words, if zones of jurisdictional entitlement overlap, the states in question need to agree on a maritime boundary. The determination of the boundary is not achieved by submitting first or before someone else to the CLCS.

There is further the question of whether a state might realistically be denied a submission to the CLCS after the 10-year deadline has passed. Given that the Convention remains silent on this issue, one could argue that there would be no legal consequences for a state which failed to make a submission to the CLCS. This is also supported by Art. 77 UNCLOS according to which

[the rights of the coastal State over the continental shelf] are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State [and t]he rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation.

In this view, the coastal state’s rights over its continental shelf are inherent; non-compliance with the 10-year deadline does not affect these rights.[v]

That there is indeed little evidence of any kind of ‘race’ when it comes to the determination of sovereign rights over continental shelf areas is supported by the fact that the Arctic coastal states all appear to have taken their full allotment of 10 years (except Russia, who takes even more in total) to complete their submissions to the CLCS. Nor does there seem to be much hurry to solve outstanding disputes, although some movement has been discernable recently. It took Russia and Norway 40 years to come to an agreement on their maritime boundary in the Barents Sea; some movement has been reported as well on the US-Canada Beaufort Sea dispute and the Hans Island issue between Denmark and Canada.[vi]

Race for Arctic resource development

Many also talk about the ‘race for the Arctic’s resources’, mostly its oil and gas. But also here, it is difficult to assemble substantial evidence which might indicate an ongoing “race”. The example of Shell’s activities in the Alaskan Arctic in 2012 show that racing to develop offshore hydrocarbon resources is no sure bet; the project has been plagued by postponements, technological issues and the recent debacle in which the drilling rig Kulluk grounded off of an Alaskan island in rough weather. These are but some of many indications that that industry has far to go before it is ready to successfully and safely conduct Arctic offshore development in areas where development experience and infrastructure is scarce.

Here, too, one must also ask: Who is racing against whom? When it comes to actual extraction activities in relatively unexplored areas like the waters off of Alaska and Greenland, companies are not exactly queuing for offshore projects or hurrying to develop their licences first. Statoil and Total are carefully watching Shell’s endeavours in Alaska and make the commencement of activities in their own Alaskan license areas dependent on the evaluation of the costs, risks and benefits and the overall success or failure of Shell’s development projects. Statoil has already postponed exploration for oil off the Alaskan coast until at least 2015.[vii]

In sum, the use of the ‘race’ metaphor to describe Arctic developments is shallow and has little empirical basis. The continuing use of this metaphor is problematic. It encourages people to believe that there is a potentially dangerous and violent competition going on, and it distracts from much more acute questions and problems that face the Arctic’s inhabitants under rapidly changing conditions in the Arctic.

[i] Article 76 UNCLOS gives countries the possibility to submit claims to the Commission on the Limits of the Continental Shelf (CLCS) for extended jurisdiction over their continental shelves.
[ii] Nilsen, Thomas (16 April 2009). Limits of Norway’s Arctic seabed agreed. BarentsObserver. Kirkenes. Retrieved from http://www.barentsobserver.com/limits-of-norways-arctic-seabed-agreed.4580729-16149.html.
[iii] UNCLOS (20 June 2008). SPLOS/183 Decision regarding the workload of the Commission on the Limits of the Continental Shelf and the ability of States, particularly developing States, to fulfil the requirements of article 4 of annex II to the United Nations Convention on the Law of the Sea. New York. Retrieved from http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N08/398/76/PDF/N0839876.pdf?OpenElement.
[iv] Pratt, M. (2008). The Arctic Ocean belongs to whom. Paris. Retrieved from http://www.lecerclepolaire.com/En/articles_archives/Pratt_maritime_Arctic.html.
[v] United Nations Division for Ocean Affairs and the Law of the Sea (2012). Issues with respect to article 4 of Annex II to the Convention (ten-year time limit for submissions). Retrieved from http://www.un.org/Depts/los/clcs_new/issues_ten_years.htm.
[vi] Ibbitson, J. (2011). Dispute over Hans Island nears resolution. Now for the Beaufort Sea. The Globe and Mail. Toronto. Retrieved from http://www.theglobeandmail.com/news/politics/dispute-over-hans-island-nears-resolution-now-for-the-beaufort-sea/article1884187/.
[vii] CBC News, “French Oil Company Warns Against Arctic Oil Drilling” (Toronto, September 26, 2012), http://www.cbc.ca/news/business/story/2012/09/26/total-arctic-drilling.html; Lisa Demer, “Oil Company Delays Exploration in Arctic Waters Off Alaska,” Anchorage Daily News (Anchorage, September 6, 2012), http://www.adn.com/2012/09/06/2614308/oil-company-delays-arctic-exploration.html.