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Will UNCLOS last throughout the upcoming 'Cold Rush' in the Arctic?

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Will UNCLOS last throughout the upcoming 'Cold Rush' in the Arctic?

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Samenvatting

The Arctic Ocean stands at the threshold of significant changes. Climate change and the melting of ice have a potential impact on vulnerable ecosystems, the livelihoods of local inhabitants and indigenous communities, and the potential exploitation of natural resources. (Ilulissat Declaration, 2008, p.1)
Due to these changes, the Arctic region has increasingly become more valuable for the nations surrounding it: Russia, Canada, the United States, Norway and Denmark. Except for the United States, all of the Arctic coastal States are signatories to the United Nations Convention on the Law of the Sea. This entitles them to claim extension of the outer limits of their continental shelf at the Commission on the Limits of the Continental Shelf, as established in Annex II of the Convention. So far, Norway, Russia and Denmark have brought their submissions, although this does not mean that the other States have procrastinated in taking action.
Article 287 of the Convention sets out the different choices of procedure in the event of a dispute; one or more of the following means can be chosen to settle the dispute: Annex VI of the Convention for the International Tribunal for the Law of the Sea. This is an independent judicial body to adjudicate disputes arising out of the interpretation and application of UNCLOS. Then there is the International Court of Justice, which serves as the principal judicial organ of the United Nations. Its role is to settle legal disputes submitted to it in accordance with international law. Annex VII of the Convention provides for the Arbitral Tribunal, allowing each State party to submit arbitrators that are experienced in maritime affairs. The Arbitral Tribunal shall determine its own procedure, assuring each party a full opportunity to be heard and present its case. The last choice of procedure in conformance with Article 287 is Special Arbitration, as set out in Annex VIII of the legal framework. The Special Arbitral Tribunal shall consist of experts appointed by the State members and it shall carry out an inquiry and establish the facts giving rise to the dispute.
Apart from UNCLOS, numerous other institutions and programmes have been set up in order to protect and/or regulate the fragile ecosystems in the Arctic environment. One of them is the International Seabed Authority, which is the authorized organ in activity control and resource management in the so-called 'Area': the seabed and ocean floor and subsoil thereof beyond the limits of natural jurisdiction, i.e. the area that State parties can make a claim for. There is the International Union for the Conservation of Nature, which is the oldest and largest global environmental organization worldwide. The Arctic's interest is represented in its Global Marine and Polar Programme.
The only Arctic body currently in existence is the Arctic Council. It acts as a high level intergovernmental forum to promote cooperation, coordination and interaction among the Arctic States. Worth mentioning is that the Arctic Council, in relation to the Arctic area, points out that 'there is no Convention for this region as of yet'. The AC essentially acknowledges hereby that UNCLOS is not sufficient in regulating the situation in the Arctic.
There are many different positions on how geopolitics should be played in the Arctic. All offer a possible solution. The answer could be found in one or more historical theories, which have proven themselves in the past. To give an example, there is the Sector Theory, which would basically slice up the Arctic Ocean as a pizza, taking the North Pole as the centre. Each coastal State would be allocated a 'slice', based on its territorial claim. Another theory is that of uti possidetis. This theory allows territorial claims by the previous mother country. However, due to its ambiguity, this doctrine might only create more complications in the Arctic region, as the North West Passage (currently Canadian territory) has previously been under control of France as well as Great Britain. The International Court of Justice has contributed to the creation of the Straight Baseline Theory. Under this theory, States can claim that coastal waters are internal waters under certain provisions.
Some scholars share the opinion that the solution for the Arctic situation is to amend UNCLOS. What would require change is the 'opt-out exception' in Article 298 of the Convention. This allows States to abstain themselves from certain clauses. To better ensure efficient and effective resolution of Arctic territorial claims, UNCLOS signatories should not be able to opt out of arbitration.
Other observers claim that creating a new agreement similar to the Antarctic Treaty would be best. The striking point in this Treaty is Article IV, which denies a State's rights in Antarctica, thereby rejecting all claims to territory. This indeed would take away the political problems rising in the Arctic region. But the matter of valuable resources will still not be solved. Moreover, the Antarctic Treaty is only in force until 2041. Applying a comparable treaty for the Arctic raises the question of what will happen afterwards. Will not the same situation arise when the treaty date expires?
Finally, the last possible solution in this research is to create a new Arctic Treaty. The greatest challenge here lies in convincing the eight Arctic States that it is in their collective benefit and long-term interest to have a regional and binding body. (Huebert, 2009, p.27) A potential Arctic Treaty should meet certain requirements: practical means to resolve differences need to be established, preferably in the form of a hard-law organ with binding decisions. Security of protection of the fragile environment and its resources is also key.
On the assumption that UNCLOS is not the answer, but merely the beginning of the search for the right solution, it does not matter in what form a solution will be found. What does matter is that a Cold Rush for the Arctic is approaching and that something needs to be done.

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OrganisatieDe Haagse Hogeschool
AfdelingESC Europese Studies / European Studies
Jaar2012
TypeBachelorscriptie
TaalEngels

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