The Arctic Ocean and the Law of the Sea
| Author | Kim Traavik,Willy Østreng |
| DOI | 10.1177/001083677400900110 |
| Published date | 01 March 1974 |
| Date | 01 March 1974 |
| Subject Matter | Articles |
The Arctic Ocean and the Law of the Sea
KIM TRAAVIK & WILLY ØSTRENG
Taking the deliberations of the UN Sea-Bed Committee as its point of departure, this
article discusses the future legal and political status of the Arctic Ocean region.
Basing their argument on the strategic, ecological and political uniqueness of the
area, the authors reach the conclusion that the polar seas, beyond national jurisdiction,
should be placed under the joint administration and control of the five Arctic litto-
ral powers (the US, the USSR, Canada, Denmark and Norway) for the limited purpose
of preventing serious and possibly cataclysmic disturbance of the fragile ecological
equilibrium of the region. It is further maintained that a solution along these lines
would not necessarily run counter to the 1970 UN Declaration of Principles concerning
the internationalization of the deep seabed, since an Arctic Ocean Pollution Preven-
tion Regime might be organized as a regional extension of a universal seabed regime.
Throughout history, the Arctic has been
finds have been made; offshore and on-
a remote and isolated area encircled by a
shore, in Soviet as well as American and
small number of littoral states.’ Only
Canadian territories. Test-drilling is also
sporadically and briefly has its natural
taking place in geologically promising
sercnity been disturbed by adventurers,
areas at Greenland and Svalbard.
hunters, explorers and scientists. The harsh
So far, the localization of these energy
climate and the barrenness of the region
sources has not occasioned serious political
have necessitated that man’s presence be
or
legal problems, mainly because the
seasonal and on a small scale. Against this
fields are situated in areas the legal status
backdrop, it is not surprising that interest
of which is not in dispute. In general, it
in the Arctic in general has been distinctly
may be stated that jurisdiction over Arctic
low. On most nations’ list of political
land area, including islands, is not a
priorities, the Arctic has, in all probability,
controversial issue. All land in the north
figured fairly close to the bottom.
has by now been assigned a clear and
Now, however, the Arctic tranquillity is
unambiguous legal status that is not being
increasingly becoming interrupted. The
contested by any national state.
region is no longer one of peripheral im-
As far as the Arctic seas are concerned.
portance only. Through the application of
however, matters are not quite so uncom-
highly advanced technology, large parts
plicated. Under current international law,
of the Arctic are gradually being made
the northern seas, beyond the respective
available for a wide array of resource
continental shelf regimes of the littoral
extraction activities on a considerable
states, must be considered no-man’s land
scale. Multinational corporations, as well
in the political as well as legal sense.2 On
as state and private enterprises of differ-
the other hand, there is today no univer-
ent nationalities, have already invested
sally accepted or uncontroversial answer
heavily in the region, and there is every
to the question of where, exactly, the
reason to believe that the trend will con-
dividing line between national shelf areas
tinue in the years to come.
and the international deep seabed runs. A
This dramatic increase of the world’s
few years ago, this lack of clearly defined
interest in the Arctic is explained primar-
jurisdictional boundaries was considered
ily by the enormous and exponentially
neither problematic nor dangerous. The
growing need of the industrial nations for
technical problems that had to be solved
oil and gas. Since the first major Arctic
so that human beings could live and work
oil field was localized on Alaska’s North
under the extreme Arctic conditions ap-
Slope in 1968, a number of additional
peared insurmountable, and in any event
54
the incentive to solve them was notably
the surface retains its status of open seas
lacking: It was generally believed that
and freedom of navigation).4 In what way
the region contained no raw material
would the Arctic be affected by an inter-
deposits of any significance; and even if
national regime along these lines?
this supposition should have proved wrong,
In principle, one might visualize two
it was felt that production costs in this
opposite answers. First, the Arctic Ocean
hostile environment would be prohibitive.
might simply be included in the regime,
The pessimistic estimates of the resource
in the same way as the other great oceans
potential of the Arctic did, in fact, turn
will be. Secondly, it might be kept out-
out to be wrong. Today it is known for
side the regime’s jurisdiction, its future
certain that the seas in the north cover
being decided by a smaller group of re-
oil and gas reserves of enormous magni-
gionally involved and engaged states. In
tude. Moreover, and just as important,
other words, we have a universal and a
the technological basis for exploiting these
regional (or exclusive) solution to the prob-
vital resources appears to have been de-
lems of jurisdiction in the Arctic Ocean.
veloped.
In order to decide which of the two alter-
The current situation in the region,
natives should be preferred, however, some
then, is characterized by a combination of
background information is needed.
two important factors; (a) available and
extremely attractive resources; and (b)
political and legal uncertainty. Together
I. THE ARCTIC: SOME
these two factors constitute a highly vola-
PRESSING PROBLEMS
tile and potentially explosive situation.
The risk of an international rush to secure
The problems in the Polar Basin are nu-
control of offshore hydrocarbons does not
merous and in many respects unique. In a
seem
far-fetched. The serious conflict
short paper like this, however, it is neces-
potential implicit in such a development
sary to focus on some main problems. A
is obvious, so much the more so because
review of these pre-eminent issues will,
both super-powers belong to the group
hopefully, furnish us with some back-
of littoral states. The need for a settle-
ground for analyzing the question of how
ment of the jurisdictional problems in the
the Arctic Ocean should be affected by a
Arctic Ocean is consequently acute and
future seabed regime.
real.
During the UN Conference on the Law
1. Tlre Sea Routes
of the Sea in Caracas later this year, one
of the main tasks will be the working out
One condition that has to be met in order
of a global seabed regime.
to exploit the economic potential of the
There is a wide range of approaches to
north is that a solution to the transport
the question of exactly hour such a re-
problem must be found. This is not the
gime should be organized; what its func-
least true as far as oil and gas are con-
tions should be; what the extent of its
cerned. These staples of industrial civili-
mandate should be; and - not the least -
zation must be hauled from production
what area should be left in control of it.3
sites to markets in extremely large quan-
At the moment, however, the most likely
tities if exploitation is to be profitable.
solution - if in fact the Conference suc-
Theoretically, the problem may be solved
ceeds in producing a solution - appears to
in two ways: (a) through a pipeline system;
be a package based on (a) granting coastal
or (b) by Arctic tanker navigation.
states the right to establish zones of eco-
In the Soviet Union the first alternative
nomic jurisdiction reaching up to 200 miles
seems to have been the one given top
from shore; and (b) internationalization
priority. Distances between the Arctic
of the remaining parts of the seabed (while
energy sources and the country’s popula-
55
tion and industrial centers in the south
bination of pipelines and maritime trans-
are comparatively small, and maritime
port. Only in this way, it is believed,
transport between the areas is exceedingly
will it prove possible to create a transport
long, cumbersome and - in places, at least
potential sufficiently large to handle the
- dangerous.
rapidly increasing demand that is en-
In the North American Arctic, the
visaged. In the long term, of course, it is
transport problem looms even larger.
conceivable that the development of better
Shipping circumstances are worse in the
vessels and shipping techniques may per-
Northwest Passage than in the Northeast.
mit an intensified tanker traffic in Arctic
In addition, extreme climatic and geo-
areas.6
graphic conditions make the laying of
Use of the Arctic waterways is not lim-
pipelines a very hazardous business indeed.
ited to exploitation of the oil and gas
The distances from production sites to
deposits of the area, though. The sea
markets are large, and the lines must by
routes may also be, and to a limited ex-
needs run through exceedingly difficult
tent in fact are, used as regular transport
terrain. Even worse, in some areas - not-
routes,
independently of the energy
ably Alaska - the trajectory of the pipe-
sources. The distance between Europe and
line system takes it through one of the
the Far East could be reduced by several
seismically most active areas of the hemi-
thousands of kilometers if it were possible
sphere. The ecological risks linked to the
to navigate across the Arctic Ocean rather
pipeline transport alternative must conse-
than have to use more traditional sea
quently be considered grave; a fact that
routes. The reason why this is not cur-
led to a temporary stop in the construction
...
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