Breaking the Ice: What Happens to Legal Claims in the Arctic if Global Sea Levels Rise?

Christopher Balch
Vol. 37 Associate Editor

Although only the tip of the iceberg of a much larger problem, the rise of global sea levels may present novel legal issues for hotly contested territorial disputes in the Arctic Ocean.

According to the National Oceanic and Atmospheric Administration of the United States Department of Commerce, global sea levels have risen at a rate of .12 inches per year primarily due to thermal expansion caused by the warming of oceans and the loss of land-based ice due to increased melting.[1] The National Snow & Ice Data Center reports that March 24, 2016 will likely be the maximum extent of Artic Sea ice for the entire year and will thus represent the lowest maximum ever recorded.[2] NASA satellite photograph analysis illustrates that polar ice caps are melting at a rate of 9% every 10 years[3] and some scientists predict that the polar ice caps might completely melt as soon as 2040.[4] Conservative estimates predict that oceans will rise between 2.5 feet and 6.5 feet by 2100 and more bleak estimates include the melting of the Greenland ice sheet, which would push sea level rise to 23 feet, enough to submerge London, New York, and other major world cities.[5]

Currently, five countries hold territorial claims to land in the Arctic region: Canada, Norway, Russia, Denmark, and the United States.[6] With the exception of one single piece of contested land, the landmass territory of these polar ice caps is clear, defined, and undisputed.[7] Each nation has full sovereignty in their claimed landmass territory and in an “exclusive economic zone” (EEZ) recognized by the United Nation Convention of the Law of the Sea (UNCLOS) as a region that extends 200 nautical miles from the landmass’ coast into the sea.[8] The waters that surround the EEZ are not owned by any one country under international law, but rather are “high seas” whereby all nations have equal rights of use.[9]

The rise of global sea levels may put currently settled legal claims into jeopardy because, as global sea levels rise, more of the arctic landmasses are submerged into the ocean, which results in the area of EEZ shrinking. This presents a scenario where long-established governmental and commercial operations within that EEZ may fall out of the jurisdiction of a sovereign nation and into the jurisdiction of international law. American fishing operations off the coast of Alaska that were once operating lawfully within the jurisdiction of American territorial waters may find that they come into conflict with international fishing laws when they unknowingly lose American jurisdiction. Once lawful Canadian offshore drilling operations may find that they violate international norms of mineral extraction in international waters when they lose Canadian jurisdiction. Russian shipping lanes may be subject to heightened safety protocol requirements when they are subject to international law instead of exclusively Russian law.

The United Nations Convention on the Law of the Sea of 2006 (UNCLOS) was drafted specifically to address many of the foreseeable territorial issues that concern the Arctic Circle.[10] Its application may provide a solution to the problem of shrinking EEZ’s as it provides a mechanism for states to make claims on any extended continental shelves beyond the EEZ’s. The treaty allows the UN Commission on the Limits of the Continental Shelf to make determinations whether or not to recognize claims on the continental shelf that extend beyond the EEZ’s.[11] This mechanism is helpful for resolving the issues mentioned supra because the recognition of claims provides enhanced security that particular territorial waters will not fall out of a nation’s exclusive sovereignty due to rising sea levels. Since the continental ridge is already underwater, international borders delineated by the ridges will not be subject to change based upon the rise of global sea levels. Unfortunately, the work of delineating sovereign waters based upon the continental shelf is a slippery slope.

First, the treaty only provided every state a ten-year window from the time of ratification to make claims on any extended continental shelf beyond the EEZ’s.[12] To date, Russia, Canada, Denmark, and Norway have each made official submissions to the UN Commission on the Limits of the Continental shelf within the ten-year time frame.[13] Not only has this resulted in several disputes over contested regions including the 1,120 mile long Lomonosov Ridge, an underwater mountain range that splits the Artic in two, but also the ten-year time frame is soon to expire for several of these states. This may make compensating for future territorial losses as a result of global sea levels rising impossible.[14]  Second, the United States has signed, but not yet ratified UNCLOS, which may cast doubt on the treaty’s ability to resolve disputes when the United States is a party to conflict. Third, in May 2008, the five major players in the region announced the Ilulissat Declaration whereby they will seek to resolve demarcation issues in the Arctic on a bilateral basis for the explicit purpose to block any “new comprehensive international legal regime to govern the Arctic Ocean.”[15] Instead, the five major players in the Arctic region have pledged to “the orderly settlement of any possible overlapping claims” through bilateral agreements.[16]

The five major powers in the arctic circle should depart from the policy asserted in the Ilussiat Declaration because it expresses a current policy to not update or replace some of the pitfalls of UNCLOS in the face of the threat of rising sea levels. Moreover, a “pledge” will not ensure the same guarantees of defined treaty when hypothetical conflicts become live controversies. Instead, the powers should either amend UNCLOS to account for the potential jurisdictional implications of rising sea levels or they should introduce, at the very least, a multilateral agreement where recognized sovereign territory is less dependent upon the potential shrinkage of EEZ’s.

An expanded regulatory framework may seek to analogize the submerging of arctic land-masses to erosion. Erosion is the process by which a landmass recedes because the water carries sediment from the shore into the ocean. Under classical riparian tradition in common law, an owner loses his or her claim to the space where land has been replaced by sea.[17] If this principle is used to guide the analysis of rising sea levels, then sovereign waters will indeed become international waters. From a public policy standpoint, this option presents many benefits: greater competition for natural resources, more access to shipping routes, and more opportunities for the international community to take ownership for environmental issues in the region. This option may also, however, lead to more instability in the region and open conflict as one of the five players may refuse to yield their territorial sovereign jurisdiction.

Alternatively, an expanded regulatory framework might integrate the Prior Appropriation Doctrine, a legal doctrine developed in the “Old West” during the time of the California Gold Rush.[18] According to the doctrine, the first person to take water from a source or mineral deposits from a mine and put it to “beneficial use” has the right to continue using the resource for that purpose.[19] Subsequent users can take any remaining resource for their own beneficial use provided they do not impinge upon the rights of previous users.[20] Thus, offshore drillers, commercial fishers, and cargo shippers can continue to use the water or natural resources they are currently using without the fear of forfeiting their legal rights to continue productive operations during a jurisdictional switch from domestic to international waters. This solution would have the advantage of providing some legal stability to existing operations, but would have the pitfall of subjecting the Arctic Circle to massive overexploitation as nations attempt to solidify their productive use of EEZ’s.

Whatever the solution, it needs to be clear, defined, and reliable. Billions of dollars of commerce are dependent upon this region and the current legal instability is a threat the global economy and world diplomacy. The international community cannot afford to put this issue “on ice” for any longer.


 

[1] National Oceanic and Atmospheric Administration: Is sea level rising? National Oceanic and Atmospheric Administration, http://oceanservice.noaa.gov/facts/sealevel.html.

[2] Another record low for Arctic sea ice maximum winter extent, National Snow & Ice Data Center (March 28, 2016), https://nsidc.org/arcticseaicenews/.

[3] What is a Polar Ice Cap, Wonderopolis, http://wonderopolis.org/wonder/what-is-a-polar-ice-cap/.

[4]  Christopher C. Joiner, Legal Regime for the Arctic Ocean, The Symposium: Arctic Law in an Era of Climate Change, 18 J. Transnat’l L. & Pol’y 1, 195, 196 (Fall 2008).

[5] Sea Levels Rise: Ocean Levels are Getting Higher: Can We Do Anything About it?, National Geographic, http://ocean.nationalgeographic.com/ocean/critical-issues-sea-level-rise/.

[6] Richard LaBeviere, Inevitable Confrontation in the Arctic?, Valdai (July 27, 2015), http://valdaiclub.com/opinion/highlights/inevitable_confrontation_in_the_arctic/.

[7] Territorial Claims in the Arctic Explained, Everything Explained http://everything.explained.today/Territorial_claims_in_the_Arctic, /; See also, Baden Copeland and Derek Watkins, Who Owns the Arctic?, NY Times (December 7, 2013), http://www.nytimes.com/interactive/2013/12/07/sunday-review/who-owns-the-arctic.html.

[8] Maritime Zones and Boundaries, National Oceanic and Atmospheric Administration: Office of General Counsel http://www.gc.noaa.gov/gcil_maritime.html

[9] See id.

[10] Daniel Hollis, United Nations Convention on Law of the Sea, The Encyclopedia of Earth (Published: June 22, 2010, 12:00 am; Updated February 26, 2013, 1:59 pm), http://www.eoearth.org/view/article/156775/.

[11] Id.

[12] The Right Arctic: UNCLOS And CLCS, http://arcticcontroversy.weebly.com/unclos–clcs.html.

[13] Evolution of Arctic Territorial Claims and Agreements: A Timeline (1903-Present), Stimson (Sep. 15, 2013), http://www.stimson.org/content/evolution-arctic-territorial-claims-and-agreements-timeline-1903-present

[14] Denmark challenges Russia and Canada over North Pole, BBC (Dec. 15, 2014), http://www.bbc.com/news/world-europe-30481309.

[15] Randy Boswell, Summit see Arctic Group of Five form, Fin. Post (May 28, 2008, 11:00 pm), http://www.financialpost.com/opinion/news/Summit+sees+Arctic+Group+Five+form/547136/story.html; See generally, The Ilulissat Declaration: Arctic Ocean Conference, Danish Ministry of Foreign Affairs, 1, 1 (May 27-29, 2008), http://www.oceanlaw.org/downloads/arctic/Ilulissat_Declaration.pdf.

[16] Ilulissat Declaration, supra note 15 at 2.

[17] The Rights of a Riparian Owner in Land Lost by Erosion, 24 Yale L. J. 162, 163 (Dec. 1914), http://www.jstor.org/stable/pdf/786040.pdf?_=1459710274697.

[18] Prior Appropriation, Water Encyclopedia, http://www.waterencyclopedia.com/Po-Re/Prior-Appropriation.html.

[19] Dan Tarlock, Prior Appropriation: Rule Principle or Rhetoric? 76, N. Dak. L. Rev., 881, 882 (2000).

[20] Id.