Navigational implications of climate change.

The UN Secretary General has noted that in the last three decades there have been declines in the extent of Arctic sea ice of 8.9 percent in September and 2.5 per cent per decade in March; sea-ice thickness has also continued to decline since the 1950s (report dated 31.8.07 to the UN General Assembly on oceans and the law of the sea).

The end result will be a mainly ice-free Arctic Ocean in summer by 2100 or earlier with the following implications for navigation: 1. Increased tanker and other traffic within the region resulting from increased oil and gas activities since these resources will be rendered more accessible. 2. Ice melt will open up passages for navigation (eg by-passing Panama Canal in navigating between North America and China, cutting as much as 6500km from the journey). A round-trip from London to Tokyo would reduce to 9950 miles from 13,000 via Suez or from 14,300 via Panama. 3. Increased governmental activity: the Canadian government announced the commission of up to eight patrol vessels capable of navigating even in icebound conditions to ‘defend their Arctic sovereignty’. The US and Canada differ over the legal character of the Northwest Passage; and Canada and Denmark have disputed claims over Hans Island (in the Kennedy Channel between Greenland and Ellesmere Island) Disputes over Arctic sovereignty, and passage through Arctic waters, are not new. Several transits by US vessels through the Northwest Passage have led to measures to buttress Canadian claims to the Arctic. In 1969, when the USS Manhattan in 1969, an icebreaking tanker, traversed the Northwest Passage, then Prime Minister Trudeau affirmed the Canadian view that the islands of the Arctic archipelago are subject to Canadian sovereignty and the waters between them internal, whilst acknowledging that not all countries accepted this view. The USS Manhattan was accompanied by a Canadian icebreaker (and its journal established that the route was not financially viable and the Alaska pipeline was built instead). One year later the 1970 Arctic Waters Pollution Prevention Act was passed, asserting pollution prevention jurisdiction over Arctic waters north of the 60th parallel up to 100 miles from the mainland and Arctic islands. In August 1985 the USS Coast Guard icebreaker Polar Sea which made a westerly transit of the Northwest Passage through the Prince of Wales Strait on its way from Thule, Greenland, to the Chukchi Sea. Canada was notified of the impending transit, and informed the US that authorization to transit the Arctic archipelago as ‘historic internal waters’ was required. The US refused to make such a request (apparently viewing the Northwest Passage as an international strait). The governments agreed that the passage would take place without prejudice to their respective legal positions. One year later, Canada established straight baselines around the Arctic archipelago, with effect from 1 January 1986. In 1988 an Agreement on Arctic Cooperation was concluded which preserved the ambiguity: the US pledged that all navigation by US ice breakers within waters claimed by Canada to be internal would be with Canadian consent, while at the same time providing that the agreement did not affect the respective positions of the US and Canada Governments. Canada continues to claim the status of the waters as internal, and the US continues to assert that they (at least the Northwest Passage) are international. There thus persists some uncertainty as to the nature of Canada’s arctic claim: historical internal waters, or coastal archipelago enclosed with straight baselines? It could be argued that there was no right of innocent passage through the waters of the Canadian Arctic archipelago, whether ice-bound or fully navigable, once enclosed by straight baselines. But Canada’s claims of sovereignty, especially over the Northwest Passage, are not fully recognised. Northwest Passage Before the drawing of straight baselines the Northwest Passage (various routes through it) was a combination of territorial sea and fishery zone and high seas (an exclusive economic zone had not been proclaimed at the time the baselines were claimed). Regardless of the route taken, passage through the strait entailed entry into Canadian territorial waters after the extension of these waters to 12 miles in 1970. The question is whether the Northwest Passage amounted to an international strait with a non-suspendable right of innocent passage. In the Corfu Channel case, the ICJ looked for a history of actual use for international navigation . In the Northwest passage all foreign transits have been with express or implied Canadian consent except for the Polar Sea in 1985. If the Passage was not a strait at the time of the drawing of the baselines, could it become one? The extent of internationalization could depend on the importance of navigation for foreign flags and the effectiveness of measures taken by Canada to control such navigation. It is a remote part of the world, and no alternative route exists. A new regime of transit passage under customary international law and the Law of the Sea Convention (UNLOSC) would arise. Canada is a party to UNLOSC (as are all Arctic states save for the US, but transit passage regime is arguably now customary international law in any event). Apart from Article 234 on control of marine pollution from vessels in ice-covered areas within the limits of the EEZ (the ‘Canadian’ article), UNLOSC makes no distinction between ‘frozen’ and open water. Part III of the Convention, on straits used for international navigation, has been exhaustively analysed. The definition of strait found therein refers merely to ‘straits used for navigation’. ‘Used’ is not qualified by words such as ‘traditionally’ or ‘customarily’, despite efforts during negotiations by states such as Canada. Thus all use may be relevant – civil and military - including recent or novel use, as well as evidence of past use. In the 1949 Corfu Channel case the ICJ declined to adopt a test based on the volume of traffic but preferred as the decisive criterion the geographic situation of the strait connecting two parts of the high seas and the fact of its being used for international navigation (even if much of the traffic was local, it was sufficient that some was ‘international’). It is difficult to argue that employing the past tense in the UNLOSC provision – ‘used’ –means that it is only past use which is pertinent to status as an international strait since the French text has ‘servant’, indicating that the question of use ‘at the time when the question arises’ is what really matters. It is actual, not potential, use which is to be considered. Anticipated further oil and gas projects in the Arctic mean that commercial traffic may occur. There is nothing in UNLOSC to suggest that international straits were in some sense solidified in ‘legal aspic’ such that no new international straits could emerge through use. The Northwest Passage already satisfies the geographic criterion as a strait and its use for navigation looks set to increase. Over the past months there have been increased patrols of the Canadian Arctic (snow mobile) and further vessels commissioned. There have also been reports of increased unnotified submarine traffic through the Arctic Archipelago. A recent report by Chatham House’s own Energy, Environment and Development Programme in June 2007, ‘How climate change is pushing the boundaries of security and foreign policy’ (Cleo Paskal) notes that ‘Over the summer of 2005 it was reported that a US military submarine probably passed through the region on its way to the North Pole, where crew members played a quick game of American football for the cameras’. The answer whether the North West passage is an international strait may await the responses of other states to the claim that it is Canadian internal waters. A number of states have protested at the drawing of Canadian straight baselines. Russia has closed off the NE passage but that is not of course of such interest to shipping. In discussion, the question was asked whether the sovereignty issue for Canada was a real one since whether or not the waters were internal, Canada – and the rest of the world – ought to want to protect the area from environmental harm. If shipping were to increase, it would be highly desirable for regulations to be drawn up requiring ships to use special fuel, regulating emissions etc. This could best be done by the IMO, whatever the status of the waters. Another suggestion was that the matter could be discussed by the Arctic Council, although this would not be able to impose decisions upon other states using the waters. The point was made that recently there had been voices from the US stating that the North West passage should after all be Canadian because ships going through could then be searched. There will be a high seas pocket whatever the status of the rest of the waters, but even that could be made subject to environmental regulation in the region. However, any attempt to negotiate new environmental regulation would come up against other governments’ opposition to having to replace sometimes rusty shipping which would use the waters. The point was made that the Canadian public was very supportive of the government’s sovereignty claims and would resist concessions of sovereignty. Another speaker gave the view that there may be some confusion among at least some groups of Canadians as to what ‘sovereignty’ meant in this context. One speaker mentioned that the Northwest Passage was not as attractive to shipping as might be thought from the fact that the mileage of particular journeys would be reduced by thousands of miles if the Passage were used. The route was a tortuous one, the weather atrocious; container ships would not be able readily to use it. However, it was hoped that liquefied gas and oil might be able to be transported from the area once it was possible to extract them. The Continental Shelf The continental shelf (CS) is the natural prolongation of the landmass ‘to the outer edge of the continental margin’, over which the coastal State exercises ‘sovereign rights for the purpose of exploring it and exploiting its natural resources’ (Art 77 (1) UNCLOS). The CS is defined as ‘the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.’ (Art 76(1)) Irrespective of the actual location of the outer edge of continental margin, coastal States have, subject to delimitation issues, certain minimum entitlements and maximum rights in respect of a continental shelf claim: there is a deemed, or legal minimum, shelf out to 200 nm – no factual evidence is needed. There is also a maximum outer limit for claims, meaning a State may be prevented from claiming its continental shelf all the way out to the margin. However, there is a possible limited exception to the maximum limit rule where ‘submarine elevations’ are concerned. The Russian claim (see below) appears to rest on its characterisation of certain oceanic ridges as ‘submarine elevations’. Art 76(3) tells us: ‘The continental margin comprises the submerged prolongation of the land mass of the coastal State, and consists of the seabed and subsoil of the shelf, the slope and the rise. It does not include the deep ocean floor with its oceanic ridges or the subsoil thereof.’ To define these physical features UNCLOS gives a set of definitions as to where the outer limit of this continental margin lies. The outer limit may be delimited by a series of points, so long as each point satisfies one of two rules. An outer limit point may be either: one at ‘which the thickness of sedimentary rocks is at least 1 per cent of the shortest distance from such point to the foot of the continental slope’; or ‘not more than 60 nautical miles from the foot of the continental slope’. Those points may then be joined by a series of straight lines, provided each line is less than 60 nm long. This provides the legal definition of where we find the physical outer limit of the continental margin. However, there is a further constraint under Art 76(5). A State may not delimit and claim rights in its continental shelf beyond a distance of either 350 nautical miles from the baselines from which the breadth of the territorial sea is measured or 100 nautical miles from the 2,500 metre isobath, whichever is the greater. Thus, a claim may not extend up to the edge of the continental margin, if it breaches these maximum outer limits. However, in respect of certain submarine features the Art 76(5) rule may apply differently, as a result of Art 76(6): First sentence: ‘Notwithstanding the provisions of paragraph 5, on submarine ridges, the outer limit of the continental shelf shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured.’ Nothing here extends the definition in respect of ‘submarine ridges’; indeed, they’re constrained by the 350 nm rule and do not benefit from the 2,500 metre isobath plus 100 nm rule. Second sentence: ‘This paragraph does not apply to submarine elevations that are natural components of the continental margin, such as its plateaux, rises, caps, banks and spurs.’ There are thus three categories: • the ‘oceanic ridges’ of the ‘deep ocean floor’ in Art 76(3), which cannot be part of the CS; • ‘submarine ridges’ which may be part of the shelf but are subject to the 350 nm limit; and • ‘submarine elevations’ such as ‘plateaux, rises, caps, banks and spurs’ which are not subject to the 350 nm limit and which may form part of a continental shelf claim so long as they satisfy the 2,500 metre isobath plus 100 nm rule – thus providing a limited exception to the restraints of Art 76(6). One example of a ‘submarine elevation’ may be the Chukchi plateau off Alaska’s north coast, which the US – though not an UNCLOS party - has consistently claimed would fall within the Art 76(3) second sentence exception. Where a State makes a CS claim beyond 200 nm, it must submit that claim to the Commission on the Limits of the Continental Shelf (CLCS). The Commission may make recommendations to the State, and where the State makes a delimitation of its shelf based on the Commission’s recommendations, that delimitation is final and binding on UNCLOS parties. The CLCS consists of an expert body of 21 members which meets as a plenary body several times a year and in seven member subcommissions to consider submission made by UNCLOS parties proposing to delimit a continental shelf beyond 200 nm. All States intending to claim a shelf beyond 200 nm are obliged to submit particulars and supporting technical and scientific data. While submissions are confidential, executive summaries are circulated to all UN members for comment. The Commission meets several times a year and is a very small body for a large and technical workload; it is underresourced. It has made recommendations as to submissions, but has not yet made final recommendations upon which the outer limits of a CS have been based. Notably, its recommendations are without prejudice to delimitation issues between neighbouring states. There have been submissions to date from the Russian Federation, Brazil, Australia, Ireland, New Zealand, a joint submission by France, Ireland, Spain and the United Kingdom, Norway, France, and Mexico. The Russian claim, made in 2001, appears to include two ridges: Lomonosov and Alpha-Mendeleev. Several responses to the Russian submission have been made (all are on the Commission website), most emphasising that the Russians had provided too little technical data to allow an assessment. The US response provides 6 paragraphs of technical detail as to why Alpha-Mendeleev is a geological feature (volcanic ridge), the defining characteristics of which do not extend into the Russian continental shelf. The US response is, however, laconic in simply asserting Lomonosov a free-standing feature with no connection to any continent. In 2002 the Commission recommended to Russia: ‘As regards the Central Arctic Ocean, the Commission recommended that the Russian Federation make a revised submission in respect of its extended continental shelf in that area based on the findings contained in the recommendations.’ The CLCS will need additional resources if claims are to be resolved in a reasonable time period. The effect of climate change on the continental shelf in the Arctic was discussed. First, lower levels of ice may reduce some of the technical barriers to exploitation of Arctic resources, although this is still a long way from being feasible. Second, there will be rising sea-levels which will affect the positions of coastlines and other relevant features, such as the 2,500 m isobaths; the question is whether these in turn lead to revisions to baselines and continental shelf limits. Outer CS delimitations made pursuant to a CLCS recommendation are ‘final and binding’ (Art 76(8)). UNCLOS and Commission rules do not appear to contemplate any possibility of a revision process. This is not an immediate problem, but for future generations. It was suggested in discussion that as well as making submissions to the Commission, there is a need for bilateral discussions to determine shelf boundaries in the region. There were partial boundaries between Denmark and Norway and between Russia and US, but none between Russia and Norway. It was also highlighted that despite extensive claims to the shelf beyond 200nm, there will remain two areas which will be deep seabed, the common heritage of mankind, falling under Part XI of UNCLOS.

A summary of the Chatham House International Law discussion group meeting held on 14 February 2008. Introductory speakers were Professor Catherine Redgwell and Douglas Guilfoyle, both of University College, London University. The meeting was chaired by Elizabeth Wilmshurst. Participants included legal practitioners, academics, NGOs, and government and embassy representatives. The event was sponsored by Clifford Chance.