Where geography, politics and law meet in the Arctic Ocean

The idea that geopolitical tensions are swirling around the Arctic Ocean is overblown, according to Professor Philip Steinberg, UArctic chair in political geography at Durham University and director of IBRU: Durham University’s Centre for Borders Research.

“I spend an awful lot of my time telling journalists they need to just chill out about what’s happening in the Arctic,” Steinberg says in an interview with Insurance Day. “The Arctic is actually a place where international law is largely working and not an area to be particularly worried about.”

Philip Steinberg, Durham University

Many misconceptions about political conflict in the Arctic Ocean come from a lack of understanding about how a nation extends its continental shelf.

The UN Convention on the Law of the Sea (Unclos) stipulates a state’s sovereignty reaches out 12 nautical miles from its coastline, with the provision ships are allowed innocent passage through its territorial waters. “Innocent passage means you’re not engaging in military manoeuvres, you don’t call into a port, you don’t stop and fish, you just don’t stop, basically,” Steinberg says.

“Canada, Denmark and Russia can all argue the Lomonosov Ridge is an extension of their continent…what looks like an aggressive, even excessive, claim to distant areas of the ocean is simply a coastal state using established procedures of international law to assert some specifically defined rights to the seabed”
_{Professor Philip Steinberg
Durham University}

The area from 12 nautical miles out to 200 nautical miles is the exclusive economic zone (EEZ). Coastal states can claim specific sovereign rights to living and non-living resources in the EEZ, which include exclusive rights to fish and also to drill and mine the seabed. From a navigational perspective, however, the EEZ is classed as high seas, a global commons where the resource of navigation is available to all and where coastal states have no special authority. Beyond the 200 nautical mile limit of the EEZ, the water column is considered high seas for all purposes – fishing as well as navigation.

A final zone, which applies only to the seabed, lies beyond the limits of the EEZ – the extended continental shelf (ECS). Unclos states that, in instances where the continental shelf goes out further than 200 nautical miles from the coast – which is not always the case because, in many places, it stops before 200 nautical miles – then the coastal state can retain exclusive rights to seabed minerals and sedentary living resources.

In addition to setting out a number of legal and geological mechanisms for determining the limit of the continental shelf, Unclos says in converting a continental shelf into an ECS claim a state must abide by one of two limiting factors: the limit of the ECS may be no more than 350 nautical miles from the coastline; or it may not be more than 100 nautical miles beyond the point where the sea is 2,500 metres deep (the 2,500-metre isobath). Coastal states can choose which of those two limiting factors to use when defining their ECS.

Disputed regions

That is where things get interesting in the Arctic context, Steinberg says. The Central Arctic Ocean – the high seas area of the Arctic Ocean – is a relatively deep ocean but it has some areas with very high ridges – and hence shallow waters. A notable example is the area defined by the Lomonosov Ridge, which runs between the continental shelf of Siberia and that of Greenland and Canada.

There has been a lot of media coverage of the three-way geopolitical tug-of-war over which of these countries owns this vast undersea mountain range. According to Denmark, the terrestrial ridge is an extension of its autonomous territory of Greenland; to Russia, it is an extension of the Siberian landmass; and, to Canada, it is an extension of Ellesmere Island in the Canadian territory of Nunavut.

Steinberg says: “Canada, Denmark and Russia can all argue the Lomonosov Ridge is an extension of their continent and, because the ridge is fewer than 2,500 meters deep, the three countries can make claims that go all the way to the other side, without applying Unclos’s rule that restricts claims to 100 nautical miles from the 2,500-meter isobath.” Thus, Steinberg stresses, “what looks like an aggressive, even excessive, claim to distant areas of the ocean is simply a coastal state using established procedures of international law to assert some specifically defined rights to the seabed.”

Additionally, he points out: “Nobody has any real interest in mining seabed minerals out there because it’s really not a good place to work. Even under the most aggressive models of climate change, nobody’s talking about a winter-free, ice-free Central Arctic Ocean. It’s still going to be dark and really cold for half the year, no matter what. And of course, it’s far from land.”

He continues: “There are a lot of more attractive places to extract minerals than the Central Arctic Ocean, not because of any inherent political risk in the Arctic, but simply because of environmental and geological factors.” From a political standpoint, it may seem meaningful to lay claim to the North Pole, but in terms of economic value, it is “not worth fighting over”, he stresses.

Misunderstood process

Steinberg also highlights much of the drama concerning ECS claims in the Central Arctic Ocean stems from a lack of understanding of the process by which claims are filed and recognised. Making a claim to extend a continental shelf involves extremely expensive and extensive research, including intensive geological and bathymetric mapping. This research is then used to make a filing with the UN’s Commission on the Limits of the Continental Shelf (CLCS).

“The CLCS, which is an expert body of geologists who meet several times a year, very slowly goes through these incredibly detailed submissions, which are proprietary data so the submissions themselves are not public,” Steinberg says. So slow is the review process that the CLCS has a 20- to 30-year backlog, which is generally accepted because “nobody’s been rushing to actually mine there”. However, while in geological terms, a 30-year backlog is insignificant – the underlying data will not change – it does add uncertainty to political calculations of risk and opportunity. In political terms, 30 years is a long time – for instance, it is impossible to know whether in 30 years Russia will still be akin to a dictatorship or, at some point in the future, a true democracy.

Once a review has been completed, the CLCS makes its recommendation on the geological limits of that country’s ECS, but the enabling legislation of Unclos recognises in many instances there will be overlaps. The CLCS’s role in the process stops at this point, as overlaps are for the opposing or adjacent states to the claimant to solve.

“It’s up to those states to negotiate how to either divide the overlapping ECS or maybe have a joint development zone, where they share the proceeds according to some formula,” Steinberg says, adding it is these overlaps that make journalists “panic”. He points as an example to IBRU’s map of maritime jurisdictions in the Arctic, where viewers can see the area around the Lomonosov Ridge claimed by Canada, Denmark and Russia.

Reflecting on how this legal situation has an impact on risk and perceptions of risk, Steinberg concludes  the Central Arctic Ocean presents political opportunities as well as political risks. “This is all a matter of international law that countries can violate if they want to, but it’s in every country’s interest to follow the rules,” he says.

“The rules are complicated, many people don’t understand them and the stakes are quite low, in terms of the actual economic gains or military gains, and so a country can take this opportunity to show it is a member of the international community, in good standing. At some point, a country could pull out and say, ‘no, we’re just going to start mining’, but would they really want to, considering the political risk, economic risk and investment risk?”

New shipping routes

On the prospect of new shipping routes opening up through the Arctic Ocean as a result of receding sea-ice caused by global warming, Steinberg highlights Article 234 of Unclos. Even though Unclos normally does not grant coastal states authority over navigation in their EEZ, Article 234 grants coastal states the right to implement non-discriminatory environmental protections to protect shipping in ice-covered areas of their EEZ.

That is because ice-covered waters are exceptionally hazardous and also because an accident there, such as an oil spill, could have severe environmental consequences.

Article 234 has allowed Russia to establish extensive – and costly – regulations for shipping across the Northern Sea Route, Steinberg says, requiring, for instance, certified pilots and icebreaker escorts, as well as restricting navigation to certain times and between certain ports.

While the Northern Sea Route across Russia’s coast has been opening up, things have been moving much more slowly in the Northwest Passage, through the Canadian Arctic archipelago. There have been many models of shipping economics of the Northwest Passage, enlisting the expertise of climatologists, oceanographic modellers and shipping economists, but it is “nobody’s favourite” future route.

Steinberg continues: “It’ll be one of the last areas to be ice-free. It’s shallow and filled with islands, which means ships would need to reduce their speed. Also, even with projections that describe the Arctic Ocean as ‘ice free’ in the summer season by 2030 or 2040, this can technically still mean there’s a fair amount of ice shifting around, just not in solid, land-fast chunks.”

Additionally, drift caused by ocean currents in the region means a lot of this ice will end up stuck between the islands of the Canadian Arctic archipelago. “So, it’ll be unpredictable year to year, even day to day, where the ice is going,” he adds.

Shippers would want to avoid that unpredictability. Being able to “go over the top” of the Arctic Ocean, which is also a more direct route, is therefore an appealing prospect. “It’s a simpler topographic environment that will presumably become more attractive than the Northwest Passage. There are no legal barriers to this because it would be passage through high seas,” Steinberg says.

Also, it is crucial to remember there are indigenous and non-indigenous people who use the Arctic Ocean all year round. Receding ice is not only problematic for them in creating potential shipping routes that could interfere with travel across the ice, but it will also change the region’s ecology. And this will have consequences that are unanticipated.

Ice melt impact on EEZs

Turning back to EEZs, another issue is how melting Arctic ice affects Article 234. “Will Canada and Russia lose the ability to enact special environmental provisions in their EEZs if the waters are no longer ice-covered for most of the year? Unclos does not precisely define what ‘ice-covered’ means,” Steinberg says.

He continues: “International law is, surprisingly, blind to the fact the physical geography underlying the legal geography is changing. The classic examples of that blindness are outside the Arctic. For instance, do Pacific islands, when they’re completely covered by water, still have an EEZ if there’s no territory people live on anymore? Or what about coastline changes due to climate change? None of that is clear at all in Unclos. It’s debated by lawyers to this day and that all has implications for the Arctic as well.”

Summing up, Steinberg sees the Arctic less as a region of threats or opportunities than one of uncertainty. Here, he sees some inspiration in the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean, which has been signed by nine deep-water fishing nations and the EU, and which went into force in 2021. “The agreement places a 16-year moratorium on commercial fishing in the region while the ecology of the area is studied, so we can better understand what the impacts of fishing in such a rapidly changing environment might be.”

He concludes: “I think we might need something similar with shipping, to work out what legal mechanisms can and should be implemented to achieve a broader understanding of the risks and the opportunities. This should involve the International Maritime Organization and also the indigenous peoples and the Arctic Council, which is already providing a forum for consultation and decision-making in the region. And that’s needed before we even start talking about constructing new shipping routes through the Arctic Ocean.”