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Published online by Cambridge University Press: 17 November 2015
1 Byers, Michael, International Law and the Arctic (Cambridge: Cambridge University Press, 2013).CrossRefGoogle Scholar
2 Molenaar, Erik J, Oude Elferink, Alex G & Rothwell, Donald G, eds, The Law of the Sea and the Polar Regions: Interactions between Global and Regional Regimes (Leiden, Netherlands: Martinus Nijhoff, 2013).CrossRefGoogle Scholar
3 The capacity to extract seabed petroleum in deep, ice-covered waters; the certainty of states’ maritime jurisdictions; and stable capital investment have fostered greater willingness to exploit Arctic petroleum reserves. However, production costs remain high in comparison to existing large-scale sources, as illustrated by the decline in petroleum prices after October 2014.
4 The United States has not ratified the UN Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 3 (UNCLOS). However, it is conducting surveys as if it will pursue an extended continental shelf (ECS) claim.
5 The Antarctic continues to be subject to claims for maritime areas. Consider Australia’s 1994 claim to a 200 nautical mile exclusive economic zone and its 2004 ECS claim adjacent to the continent.
6 Ilulissat Declaration, 48 ILM 362 (2008). The Arctic Council states added: “We therefore see no need to develop a new comprehensive international legal regime to govern the Arctic Ocean.”
7 Byers, Michael, Who Owns the Arctic? Understanding Sovereignty Disputes in the North (Vancouver: Douglas & McIntyre, 2009).Google Scholar
8 Byers, supra note 1 at 5. Byers is forceful in the assertion that: “In short, there is no state-to-state competition for territory or resources in the Arctic, and no prospect of conflict either. Instead, the Arctic is becoming a region marked by cooperation and international law-making, during a period of significant geopolitical, environmental, and economic change.”
9 Denmark acceded to UNCLOS in 2004. Its 2014 claim encompasses the geographic North Pole. The claim is premised on establishing the Lomonosov Ridge as extending from Greenland. See The Northern Continental Shelf of Greenland: Executive Summary, Partial Submission of the Government of Denmark and the Government of Greenland to the Commission on the Limits of the Continental Shelf (Copenhagen: Geological Survey of Denmark, 2014) at 12.
10 As of early 2015, Canada had not completed its Arctic ECS claim. In 2013, it submitted a claim to an ECS in the Atlantic. See Steven Chase, “Arctic Claim Will Include the North Pole, Baird Claims As Canada Delays Full Seabed Bid,” Globe and Mail (9 December 2013): “Prime Minister Stephen Harper made a last-minute intervention in Canada’s planned submission to the United Nations commission that is accepting claims for seabed rights in regions such as the Arctic. Mr. Harper asked Canadian bureaucrats to go back to the drawing board and craft a more expansive claim for ocean-floor resources in the polar region after the proposed submission they showed him failed to include the geographic North Pole.”
11 Byers, supra note 1 at 127. Cooperation among states in the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) fisheries regime should be recalled. There are objectively only resource — seabed petroleum — interests engaged by Arctic ECS claims, with a stable legal and political basis for development essential to the parties’ economic interests.
12 See Ted McDorman, Salt Water Neighbors: International Ocean Law Relations between the United States and Canada (Oxford: Oxford University Press, 2009). McDorman is the leading commentator on the status of the Northwest Passage.
13 Byers, supra note 1 at 170.
14 WTO Appellate Body, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/AB/R (22 May 2014).
15 Molenaar, supra note 2 at viii. Contributors were asked to consider the application of: (1) global institutional frameworks created through the law of the sea; (2) other relevant global “institutional frameworks” such as the International Maritime Organization; (3) “multilateral instruments that have a maritime focus” relevant to the polar regions; and (4) “basic principles of international environmental law” on the law of the sea in the two regions.
16 Antarctic Treaty, 1 December 1959, 402 UNTS 71.
17 See Convention on the Conservation of Antarctic Marine Living Resources, 1 August 1980, 19 ILM 841. Environmental protection for ships in the Southern Ocean is partly regulated by an informal antecedent to the Polar Code. Whaling is governed by the 1946 International Convention for the Regulation of Whaling, 2 December 1946, 161 UNTS 72; see Whaling in the Antarctic (Australia v Japan; New Zealand Intervening), 31 March 2014, International Court of Justice, General List No 148, online: ICJ <http://www.icj-cij.org/docket/files/148/18136.pdf>.
18 Molenaar, supra note 2 at 34.
19 Ibid at 57.
20 Ibid at 110. Canada has a single marine protected area in the north, in the western Arctic at the McKenzie River Delta. It is primarily for conservation of beluga whales. Convention for the Protection of the Marine Environment of the North-East Atlantic, 22 September 1992, 2354 UNTS 67.
21 The consensus is far from uniform. Recent efforts to establish large marine protected areas adjacent to the continent have been unsuccessful. They are proposed as “no take” areas in the Ross Sea and off East Antarctica under the CCAMLR. Protocol on Environmental Protection, 30 ILM 1455 (1991).
22 Molenaar, supra note 2 at 161.
23 Convention on the Conservation of Migratory Species of Wild Animals, 23 June 1979, 1651 UNTS 333.
24 Molenaar, supra note 2 at 190.
25 Molenaar refers to high seas fisheries areas in the Arctic as “pockets”: the Norwegian Sea “Banana Hole,” the Barents Sea “Loophole,” the Bering Sea “Donut Hole,” and the central Arctic Ocean.
26 Whaling in the Antarctic, supra note 17.
27 Convention on International Trade in Endangered Species of Wild Fauna and Flora, 3 March 1973, 993 UNTS 243.
28 Molenaar, supra note 2 at 321.
29 Agreement on Cooperation on Marine Oil Spill Preparedness and Response in the Arctic, 15 May 2013, online: <http:www.arctic-council.org>. The International Code of Safety for Ships Operating in Polar Waters was expected to be made final in May 2015 and will likely enter into force on 1 January 2017.
30 Molenaar, supra note 2 at 387.
31 Ibid at 400: “Fragmentation, overlaps and gaps in international regimes result from the tendency for international regimes to develop incrementally in response to new and emerging problems, technological developments, advances in sciences as well as changing needs and views of individual states or the international community as a whole, rather than by means of pro-active and all-encompassing frameworks.”
32 Ibid at 410.
33 Ibid at 417.