Russian Territorial Claim Collides with Convention on the Law of the Sea

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A new Cold War is taking shape in the Arctic’s vast, silent expanse of polar bears and sea ice, as the Russian Federation stakes aggressive new territorial claims that appear to stretch the limits of international law. [1] While Russia is no longer one of the world’s two preeminent superpowers, its most recent filing with a United Nations commission aims to cement its position as the superpower in the Arctic.[2] Melting ice[3] has opened new shipping lanes through the Arctic[4] and improved access to valuable natural resources.[5] In 2013 alone, seventy-one vessels successfully passed through the Northern Sea Route, a navigable stretch of the Arctic running along Russia’s northern coast and connecting the Pacific Ocean to the Atlantic.[6] The result: competition for control of the region is heating up just like the Arctic itself.[7]

As with other significant bodies of water, the Arctic’s legal regime is based on the 1982 U.N. Convention on the Law of the Sea (“UNCLOS”). [8] UNCLOS defines nations’ rights and responsibilities in the world’s oceans, providing guidelines for business, the environment, and the management of marine resources.[9] The Convention establishes for every coastal nation an Exclusive Economic Zone (“EEZ”), beyond and adjacent to the territorial sea, extending “[two] hundred nautical miles from the baselines from which the territorial sea is measured.”[10] Within its EEZ, a nation-state has “sovereign rights for the purpose of exploring and exploiting . . . the natural resources . . . of the waters superjacent to the seabed and of the seabed and its soil[.]”[11] Thanks in part to this concept of the EEZ, American oil companies extract some 1.5 million barrels of crude oil per day from the Gulf of Mexico.[12]

Can a country acquire nautical territory so as to increase its EEZ? Perhaps surprisingly, yes. Article 76 of UNCLOS allows “geographically advantaged” nations to assert claims for control over maritime terrain when a submerged, natural prolongation of the country’s landmass extends beyond the 200-mile EEZ. [13] These “submarine elevations” become components of the EEZ if they exhibit continuity of geologic and tectonic origin with the coastal landmass.[14]

An Article 76 claim is made as follows: First, a claimant must ratify UNCLOS. [15] The country then conducts fact-finding missions to gather data and study the subterranean territory in question.[16] If viable information results, the nation submits its claim to the Commission on the Limits of the Continental Shelf (“CLCS”).[17] CLCS was established by UNCLOS as a twenty-one-member panel of experts in geology, geophysics, and hydrography,[18] to evaluate and make binding recommendations on claims.[19] CLCS does not, however, have the power to adjudicate disputed claims; those “must be resolved through negotiation or recourse to an international court.”[20] If the claim is unchallenged, CLCS assesses the scientific findings’ validity, votes on the submission, and then makes a recommendation.[21] The claimant then possesses sovereign control over the shipping, mining and drilling rights of the newly added territory.[22]

In accordance with that procedure, the Russian Federation submitted a revised Article 76 claim, on August 3, 2015, to CLCS for territory in the Arctic Ocean. [23] The submission asserts that the Lomonosov Ridge, a band of continental crust that stretches across the Arctic Ocean and runs under the North Pole,[24] is a continental extension of the Russian landmass.[25] A successful claim would allow Russia to control all drilling and navigation rights from its coastline to the North Pole and perhaps farther.[26]

Aside from diplomatic efforts, the Russian Federation has also expanded its military influence in the Arctic region to achieve policy goals. [27] Russia has “constructed ten . . . search-and-rescue stations, sixteen deep-water ports, [and] thirteen airfields . . . across its Arctic coast” in the past couple of years alone.[28] Additionally, Russian explorers symbolically claimed the Arctic for the Motherland by planting their national flag on the seabed beneath the North Pole.[29] Not only do these Russian actions hint at possible territorial aggression in the Arctic, the words of their statesmen do as well. The deputy commander of Russia’s Aerospace Defense Forces, Kirill Makarov, asserted in a June 2015 address that the purpose of the infrastructure buildup is to “defend . . . [Russia’s] interests in the Arctic.”[30]

Why does Russia care so much about these resources? A closer look at the 2009 revision to its published national security strategy, which dictates policy until 2020, suggests an answer. Former President Medvedev highlighted the “importance of [achieving] energy security by 2015. [31] This policy has been pursued through the acquisition of drilling rights in the Arctic, as well as a $270 billion agreement for Rosneft, a state-owned petroleum conglomerate, to export crude oil to China.[32] However, with the dramatic decline in the global price of oil in the past several months,[33] the Russian economy has begun to sink into recession.[34] Losing billions of dollars in revenue with every dollar-per-barrel decline in the price of oil, Russia is in a bit of a pickle.[35]

Russia is now faced with a crucial trade-off that could dictate geopolitical conversations for the foreseeable future: Will it allow international law and protocol to run their course, or will it forcefully seize control of vital Arctic resources like it seized Crimea? [36] The combination of Russia’s oil-induced recession, state-sanctioned purchase of Arctic drilling permits, and recent acts of territorial aggression[37] suggest that it may pursue a speedier resolution to the Arctic question than can be provided through the CLCS. If this prediction holds true, the term “Cold War” may take on a whole new meaning.


[1] See The New Cold War, Guardian paras. 1–4 (June 16, 2015), http://www.theguardian.com/environment/ng-interactive/2015/jun/16/drilling-oil-gas-arctic-alaska.

[2] Submission to the Comm’n: Partial revised Submission by the Russian Federation, United Nations para. 1 (August 6, 2015) http://www.un.org/depts/los/clcs_new/submissions_files/submission_rus_rev1.htm (noting the original submission was made on December 20, 2001) (emphasis added).

[3] The maximum extent of sea ice during the 2014– 2015 winter, covering 5.61 million square miles, is about 50,000 square miles less than the previous low measurement, which was recorded in 2011. Laura Smith-Spark, Arctic Sea Ice Hits Lowest Winter Maximum on Record, CNN paras. 1–8 (May 14, 2015) http://www.cnn.com/2015/03/21/world/arctic-sea-ice.

[4] See Jeremy Bender and Michael Kelley, Militaries Know That the Arctic is Melting - Here’s How They’re Taking Advantage, Bus. Insider paras. 11–12 (June 3, 2014), http://www.businessinsider.com/the-competition-for-arctic-resources-2014-6.

[5] The New Cold War, supra note 1, at paras. 15–18 (estimating “30% of the world’s undiscovered gas and 13% of oil [are] waiting to be found inside the Arctic [C]ircle”).

[6] Bender, supra note 3, at paras. 11–12 (noting that nautical passage from the Pacific to Atlantic Ocean is thirteen days shorter via the Northern Sea Route than the Suez Canal).

[7] See The New Cold War supra note 1, at para. 4; see also Member States, Arctic Council para. 1 (June 29, 2011), http://www.arctic-council.org/index.php/en/about-us/member-states (bordering nations include Canada, the United States, Russia, Finland, Iceland, Norway, Sweden, and Denmark).

[8] U.N. Convention on the Law of the Sea 1833, U.N.T.S. 3; 21 I.L.M. 1261 (1982).

[9] See id. at 25.

[10] Id. at 43–44.

[11] Id. at 43.

[12] Jennifer Larino, Gulf of Mexico on Brink of Oil Production Boom, Government Says, Times-Picayune (New Orleans) para. 2 (March 3, 2015) http://www.nola.com/business/index.ssf/2015/03/gulf_of_mexico_boom_oil_produc.html.

[13] Convention on the Law of the Sea, supra note 8, at 53–54.

[14] Id. at 54; see also Article 76, http://arcticcontroversy.weebly.com/article-76.html (last visited Sep. 17, 2015) (analyzing Article 76 of the UNCLOS).

[15] Convention on the Law of the Sea, supra note 8, at 146.

[16] Id.; see also From Claim to Right,http://arcticcontroversy.weebly.com/from-claim-to-right.html (last visited Sep. 17, 2015) (noting examples of potential testing to include seismic surveys and tectonic model analysis).

[17] Id. In its 2014 petition, Denmark, through its territorial hold over Greenland, claims that “[t]he Lomonosov Ridge … [is an] assumed natural prolongation of northern Greenland.” If successful, this request to territorially claim an underwater mountain range would allow Denmark to greatly expand its EEZ and assert control over the shipping, mining, and drilling rights within 200 nautical miles of the Ridge. See also GEUS Article, The Right Arctic http://arcticcontroversy.weebly.com/geus-article.html (citing the fifth text box on the left side of the page titled “North of Greenland”).

[18] Convention on the Law of the Sea, supra note 8, at 145.

[19] Convention on the Law of the Sea, supra note 8, at 54.

[20] Arctic Law & Policy Year in Review: 2014 , 5 Wash. J. Envtl. L & Pol'y 97, 139-42, 151 (2015).

[21] Comm’n on the Limits of the Continental Shelf, Rules of Procedure of the Comm’n on the Limits of the Continental Shelf, 21st Sess., March 17–April 18, 2008, U.N. Doc. CLCS/40/Rev.1 (2008).

[22] Id. at 16.

[23] Submission to the Comm’n, supra note 2; Vladimir Isachenkov, Russia to UN: We are Claiming 463,000 Square Miles of the Arctic, Bus. Insider para. 1 (August 4, 2015), http://www.businessinsider.com/russia-to-un-we-are-claiming-463000-square-miles-of-the-arctic-2015-8.

[24] James R. Cochran et al., Morphology and Structure of the Lomonosov Ridge, Arctic Ocean, 7 Geochemistry, Geophysics, Geosystems (Issue 5) 1, 1 (2006) available at http://onlinelibrary.wiley.com/doi/10.1029/2005GC001114/full.

[25] Arctic Law & Policy Year, supra note 20, at 151.

[26] Cochran, supra note 21, at 1.

[27] Jeremy Bender, Russia is Reinforcing 3 Crucial Geopolitical FrontlinesBUS. INSIDER at paras. 6-10 (Jan. 13, 2015) http://www.businessinsider.com/russia-reinforcing-geopolitical-frontlines-2015-1.

[28] Jeremy Bender, Russia is Deploying Advanced Aerial Weapon Systems to the Arctic, Business Insider para. 5 (June 22, 2015) http://www.businessinsider.com/russia-deploying-advanced-weapons-to-arctic-2015-6.

[29] Russia Plants Flag on Arctic Floor, Reuters para. 1 (Aug. 4, 2007), available at http://www.cnn.com/2007/WORLD/europe/08/02/arctic.sub.reut/index.html

[30] Bender, supra note 28, at para. 3

[31] Roger McDermott, Russia’s National Security Strategy, Jamestown Found. para. 7 (May 19, 2009), http://www.jamestown.org/single/?no_cache=1&tx_ttnews[tt_news]=35010#.Ve_Q5p26fR0 (emphasis added).

[32] See Derek Mead, Russian Oil Behemoth Rosneft has Unlocked the Arctic, Vice paras. 4–5 (July 9, 2013) http://motherboard.vice.com/blog/russian-oil-behemoth-rosneft-has-unlocked-the-arctic.

[33] Clifford Kraus, Oil Prices: What’s Behind the Plunge? Simple Economics, N.Y. Times para. 3 (Sep. 1, 2015) http://www.nytimes.com/interactive/2015/business/energy-environment/oil-prices.html.

[34] Tim Bowler, Falling Oil Prices: Who are the Winners and Losers?, BBC News at paras. 6–14 (Jan. 19, 2015) http://www.bbc.com/news/business-29643612.

[35] Id.

[36] Alan Yuhas, Ukraine Crisis: An Essential Guide to Everything That’s Happened so Far, Guardian paras. 1–2 (April 13, 2014) http://www.theguardian.com/world/2014/apr/11/ukraine-russia-crimea-sanctions-us-eu-guide-explainer.

[37] Bender, supra note 24, at paras. 11–21.


Posted by Joseph A. Fleishman on Fri. September 18, 2015 8:18 AM
Categories: Climate Change, Energy, Natural resources, Russia, Shipping, Territorial disputes

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