Sovereignty and Conflict in the Arctic Due to Climate Change:
Duncan E.J. Currie LL.B. (Hons.) LL.M.
As climate change further reduces sea ice in the Arctic region, the Arctic Ocean is showing signs of increasingly being the focus of competing claims, both to claims of the rights of navigation and over resources in the area, including particularly oil and gas. Just as climate change is causing loss of sea ice, threats to polar bears and other wildlife and food and security issues to indigenous inhabitants, climate change is bringing conflict over sovereignty and legal access to the Arctic. International disputes include disputes over maritime access through the Northwest Passage and a recently escalated dispute over the Lomonosov Ridge, which bisects the Arctic Sea, which Russia claims, and most recently where Russian submariners planted a flag on the seabed, and which Danish officials have indicated may be claimed by Denmark. Canada has also claimed sovereignty over the area. 
The Arctic is warming nearly twice as rapidly as the rest of the globe, with average Arctic temperatures rising at almost twice the rate of the rest of the world in the past few decades, according to the final report of the Arctic Climate Impact Assessment, a four-year study conducted by hundreds of scientists. Average winter temperatures have increased as much as 3-4°C in the past 50 years in Alaska, Western Canada, and Eastern Russia; and the Arctic region is projected to warm an additional 4-7°C by 2100.
The average sea-ice extent has decreased by 8% over the last 30 years, and the melting trend is accelerating. Sea-ice extent in late summer has declined even more, with a loss of between 15 and 20%. Arctic sea-ice has also become 10-15% thinner overall, and some areas have shown reductions of up to 40%. The assessment projects that at least half the summer sea ice in the Arctic will melt by the end of this century, along with a significant portion of the Greenland Ice Sheet. These changes threaten the survival of some arctic animal species such as polar bears, walrus, ice-living seals and some marine birds, and pose challenges to the health, food security and culture of indigenous people.
Sovereignty in the Arctic
The United States, Canada, Iceland, Greenland, Denmark, Norway and the Soviet Union all border the Arctic Sea. Despite the longstanding presence of the Inuit people, States have clashed over sovereignty in and access to the Arctic Ocean. Sovereignty over Greenland is exercised by Denmark and Greenlanders are viewed by the Danish government as an indigenous people within Denmark. Sovereignty is the right in international law to exercise State functions over a given territory to the exclusion of any other State. Even though some speculated the North Polar region could be occupied following Admiral Peary’s raising of the United States flag at the North Pole, it consists of ice, rather than land, and the practical reality is that the ice is continually shifting due to wind and currents, and may shift even more as climate change takes hold. Arctic ice cover has been thinning over large areas during the last twenty years, and there is sometimes open water at the North Pole. Impacts of climate change in the Arctic detailed in the Arctic Climate Impacts Assessment were discussed earlier.
The Legal Status of the Arctic Ocean
The legal status of the Arctic Ocean is determined by the international law of the sea, which is now largely codified by the 1982 UN Law of Sea Convention, which entered into force in 1994. The Arctic Ocean features internal sea waters, territorial seas, contiguous zones, exclusive economic zones, the high seas, the continental shelf, and seabed areas beyond the limits of the continental shelf. The main dispute centres on Canada’s claim that the waters in the Arctic Archipelago are internal waters and thus not subject to navigational rights, and in particular, on the Northwest Passage.
The Northwest Passage
Disputes over the Northwest Passage centre on whether there is a right of transit passage through the Northwest Passage. The Northwest Passage links the Pacific Ocean in the west with the Atlantic Ocean in the east, and promises a shorter passage between Europe and Asia than the Panama Canal or around Cape Horn. Norwegian Roald Amundsen was the first to navigate the passage by ship in Gjøa in 1905, taking three years to do so. In the early 1940s, the Canadian vessel RCMPV St Roch was the first vessel to transit the Northwest Passage in one season and through the northern deep water route, and was also the first to sail it in both directions.
Claims to the Lomonosov Ridge
The Lomonosov Ridge is the major submarine ridge of the Arctic Ocean. The ridge is the highest undersea ridge in the world, and runs 1,800 km from a point near Ellesmere Island on the continental shelf of North America, north to a point near the North Pole and then continues south to a point near the continental shelf of the New Siberian Islands. It is named after the Russian author, grammarian, poet and scientist Mikhail Vasilyevich Lomonosov (1711-1765).
Criminal Jurisdiction in the Arctic Ocean
One aspect of sovereignty is the application of criminal law to events which take place. One example is the Escamilla case. Escamilla, a US national, was in a research party on Ice Island T-3 carrying out research for the Office of Naval Research under the University of Alaska. T-3 was a large fresh-water segment of a former glacier from Ellesmere Island that was some seven miles long. It was not claimed by the US and was 300 miles from Greenland and 200 miles from Canada, in the so-called Canadian sector. The party apparently got drunk on homemade raisin wine and in an ensuing dispute, a gun held by Escamilla went off and the party leader was killed. Escamilla was taken to mainland United States via the US base at Thule, Greenland, and was charged with involuntary manslaughter in the US. He was eventually acquitted, but the point in this case was that the District Court finding that jurisdiction existed was upheld on appeal. The prosecution argued that T3 was simply the high seas in frozen form, despite the obvious problem that the island was in fact formed from glacier ice, not sea ice. Canada sent a note to the Court reserving its position on jurisdiction, but did not object to the United States court treating drifting ice as a ship for the purpose of the proceedings.
It is ironic that both climate change, and the oil and gas that has given rise to climate change, threaten to embroil the Arctic Ocean and bordering States in disputes over sovereignty, access to resources, navigation and the protection of the environment. The use of the Northwest Passage by tankers or other vessels may be facilitated by the melting of Arctic ice due to climate change, but other changes brought about by climate change, including icebergs, movement of ice and changed currents, mean that any such use will bring new risks to the Arctic environment. The 15 years which have elapsed since the Exxon Valdez oil spill may have dulled some memories of the effect of oil spills in northern latitudes, but the more recent Prestige oil spill in 2002 itself brought about moves by States to protect their coastlines from oil pollution, including moves to introduce prohibitions on single hulled oil tankers which international law had not to date sanctioned. Article 234 of the Law of the Sea Convention is restricted to laws enacted by coastal States and to the EEZ. It may well be that international interest in protecting the fragile Arctic marine environment from oil spills will require more than coastal state controls and include prohibitions on transport and mineral extraction, where necessary.
 Canadian External Affairs Minister Peter MacKay said that “"There is no question over Canadian sovereignty in the Arctic. We've made that very clear. We established a long time ago that these are Canadian waters and this is Canadian property.” CBC, “Russia plants flag staking claim to Arctic region”, 2 August 2007, at http://www.cbc.ca/world/story/2007/08/02/russia-arctic.html.
 The Arctic Climate Impact Assessment was a project of the Arctic Council and the International Arctic Science Committee (IASC), at http://www.acia.uaf.edu/. Arctic Climate Change and Its Impacts (2004), Executive Summary and page 10.
 The reasons for increased rate of warming in the Arctic include the emergence of darker surfaces, absorbing heat, less fraction of energy from warming going to evaporation, the shallower layer of the atmosphere that is needed to warm, and increased transfer of heat to the atmosphere in the winter. Arctic Climate Change and Its Impacts, note 2 above, page 20.
 Arctic Climate Change and Its Impacts, note 2 above, page 25.
 Arctic Climate Change and Its Impacts, note 2 above, page 14.
 Arctic Climate Change and Its Impacts, note 2 above, page 11.
 Arctic Climate Change and Its Impacts, note 2 above, page 85.
 Arctic Climate Change and Its Impacts, note 2 above, page 11.
 Some agreements relevant to the Arctic include an agreement on Polar Bears (Agreement on the Conservation of Polar Bears 1973, (Canada, Denmark, the USSR and the USA) 13 ILM (1974) 13, http://pbsg.npolar.no/ConvAgree/agreement.htm) and an agreement on Spitsbergen.(Svalbard Convention (USA, UK, Denmark, France, Italy, Japan, Norway, the Netherlands, Sweden), signed at Paris on 9 February 1920 recognizing Norwegian sovereignty under a special regime. Copy at http://odin.dep.no/jd/engelsk/publ/p10001858/012001-040007/ved001-bu.html). See also the Agreement on Arctic Co-operation, at note 47 below.
 See Gudmundur Alfredsson, Working Paper on Basic choices under International Law, at http://www.namminersorneq.gl/uk/uk_arbsgr4-3-01.htm#noter, drawing on “The Faroese People as a Subject of Public International Law”, I Faroese Law Review, (January 200), pp. 45-57.
 Island of Palmas arbitration (1928) 2 RIAA 829, 839.
 See discussion in Oppenheim’s International Law, (9th ed., 1997), ed. Sir Robert Jennings, Sir Arthur Watts, 692, para. 256. On the Arctic, see Pharand, The Law of the Sea of the Arctic (1973), Pharand and Legault, The Northwest Passage: Arctic Straits (1984).
 Studies have shown a mean reduction in arctic ice thickness of 42%, from 3.1 to 1.8m from the period 1958-1976 to 1993, 1996 and 1997. IPPC Third Assessment Report, “Climate Change 2001: The Scientific Basis,” 126.96.36.199 Sea-ice extent and thickness, at http://www.grida.no/climate/ipcc_tar/wg1/062.htm.
 See page 2 - 3 above.
 See discussion of Canadian claims to the arctic in the Canadian Encyclopedia, “Arctic Sovereignty”, at http://www.thecanadianencyclopedia.com/index.cfm?PgNm=TCE&Params=J1SEC626050.
 Brownlie, Principles of International Law (4th ed., 1990) 151. Norway stated in an Exchange of Notes in 1930recognizing Canadian sovereignty over the Sverdrup Islands that the recognition was “in no way based upon any sanction whatever of what is named the ‘sector principle’. TS No. 25 (1931), Cmd. 385, cited in Oppenheim, para. 256, note 3.
 Oppenheim’s International Law, para. 256, page 693.
 The Legal Status of Eastern Greenland (1933) PCIJ Ser. A/B No. 53, 22, 47, 50. See R. Y. Jennings, The Acquisition of Territory in International Law (1966), 4-6.
 Clipperton Island Case (1932) 2 UNRIAA 1105, (1932) 26 AJIL 390, where mere annexation was accepted as sufficient for French sovereignty Island of Palmas Arbitration (1928) 2 UNRIAA 829, and Minquiers and Ecrehos (1953) ICJ 47 at http://www.icj-cij.org/icjwww/idecisions/isummaries/ifuksummary531117.htm. The UK implicitly recognized France’s claim to Adelie Land based on discovery and annexation: D. P. O’Connell, 2 International Law (1965), 520.
 United Nations Convention on the Law of the Sea, Article 1. Signed at Montego Bay, Jamaica, 10 December 1982, entered into force 16 November 1994, UN Doc. A/CONF.62/122 (1982), 21 I.L.M. 1261 (1982) (Law of the Sea Convention), at http://www.un.org/Depts/los/convention_agreements/texts/unclos/closindx.htm. Norway ratified the Convention on 24 June 1996, Russia ratified the Convention on 12 March 1997, Canada ratified the Convention on 7 November 2003, and Denmark on 16 November 2004. The United States has not signed or ratified the Convention. Article 5.
 R. R. Churchill and A. Lowe, The Law of the Sea, (3rd ed., 1999), 106. See D. Pharand, Canada’s Arctic Waters in International Law (1988), 159 ff.
 Law of the Sea Convention, article 7(1).
 Huebert, 11, and Rob Huebert, “The Return of the Vikings: New Challenges for the Control of the Canadian North,” (2003), at http://www.naval.ca/article/Heubert/The_Return_of_the_Vikings.html.
 See “Martin gives pharmacare proposal cold shoulder,” Globe and Mail, August 12 2004, and debate last year in the Canadian 37th Parliament at http://www.parl.gc.ca/37/3/parlbus/chambus/house/debates/032_2004-03-30/ques032-E.htm.
 Rob Huebert, “Security in the Canadian North: Changing Concerns and Options,” at http://www.fraserinstitute.ca/admin/books/chapterfiles/May04ffHuebert.pdf. The United States reportedly offered four zones within the disputed waters for lease in August 2003, thus asserting sovereignty, 10-12.
 Huebert, 11.
 See page 8 below.
 See account at http://www.framheim.com/Amundsen/NWP/NWPassage.html.
 See page 8 below.
 The Manhattan was chartered by Humble Oil & Refining Company which later became Exxon and Atlantic and Richfield Company, which later become ARCO. See Ships of the World: Manhattan, at http://college.hmco.com/history/readerscomp/ships/html/sh_058700_manhattan.htm.
 See account by Larry Gedley and Merritt Helfferich, “Voyage of the Manhattan,” at http://www.gi.alaska.edu/ScienceForum/ASF6/639.html.
 Time, September 26, 1969, “the Manhattan’s Epic Voyage”, available at http://www.time.com/time/magazine/0,9263,7601690926,00.html.
 L. Henkin, “Arctic Anti-Pollution: Does Canada Make or Break International Law?” 65 AJIL (1971, 131, 135, and cf. J.A. Beesley, “Rights and Responsibilities of the Arctic Coastal States: The Canada View,” 3(1) Journal of Maritime Law and Commerce (1971), 11.
 Law of the Sea Convention, article 234.
 See Johnston, Douglas M. “The Northwest Passage Revisited,” 33 Ocean Development and International Law 145-164 (2002), examining the case for a transit management regime for the Northwest Passage.
 See account in “On Columbus Day, the Polar Star sails east, to reach west”, October 11, 1988, at http://seattlepi.nwsource.com/antarctica/ship/article_881011columbus.shtml.
 Agreement on Arctic Co-operation, signed and in force January 11 1988, CTS 1988/29, at http://www.lexum.umontreal.ca/ca_us/en/cts.1988.29.en.html.
 Agreement on Arctic Co-operation, article 2.
 Law of the Sea Convention, article 37.
 Corfu Channel case (UK v Albania), ICJ Rep. 1, at http://www.icj-cij.org/icjwww/icases/icc/iccframe.htm. There were 2884 ships during one year and nine months: Corfu Channel, merits, 29.
 Corfu Channel case, merits, 28.
 Law of the Sea Convention, article 20. However, there is no such provision applicable to internal waters, since they are the subject of national laws.
 Churchill and Lowe, note 27, 91, giving the example of a Russian submarine running aground near a Swedish naval base in 1981 and citing other cases of submarines in Swedish and other territorial waters.
 See biography at http://www.allbiographies.com/biography-MikhailVasilyevichLomonosov-19421.html. Lomonosov was the first person to record the freezing of mercury.
 Russia has reportedly lodged a claim: see Geotimes, December 2004, “Vying for the North Pole,” at http://www.geotimes.org/dec04/NN_NorwayArctic.html.
 See Julian Conmand, “Denmark causes international chill by claiming North Pole,” 17 October 2004, at http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2004/10/17/wpole17.xml&sSheet=/news/2004/10/17/ixworld.html, and Daniel Howeden and Ben Holst, “Race for the Arctic”, in The Independent, 5 January 2005, at http://www.truthout.org/docs_05/010605G.shtml.
 Law of the Sea Convention, article 77(1).
 Law of the Sea Convention, article 77(3).
 Sedentary species are organisms which, at the harvestable stage, either are immobile on or under the sea-bed or are unable to move except in constant physical contact with the sea-bed or the subsoil. Law of the Sea Convention, article 77(4).
 Law of the Sea Convention, article 78.
 Law of the Sea Convention, article 76(1). See also 1980 Statement of Understanding about article 76 (applicable e.g. to the southern part of the Bay of Bengal) in the Final Act of the Third United Nations Conference on the Law of the Sea, Statement of Understanding Concerning a Specific Method to be Used in Establishing the Outer Edge of the Continental Margin at http://www.un.org/Depts/los/clcs_new/documents/final_act_annex_two.htm.
 Law of the Sea Convention, article 76(2).
 Law of the Sea Convention, article 76(6).
 The Tenth Meeting of States Parties agreed to defer the final date for presenting a Submission to May 13, 2009. The United States and other non-Parties would have ten years from the date of ratification:
 US v Escamilla 467 f.2d 341, and see E.M. Silverstein, “US Jurisdiction: Crimes Committed on Ice Islands,” 51 Boston L. Rev. (1971), 77, and D. Pharand, “The Legal Status of Ice Shelves and Ice Islands in the Arctic,” 10 Les Cahiers de Droit (1969) 463, D. Pharand, “State Jurisdiction over Ice Island T-3: the Escamilla Case,” 24 Arctic (1971) 83, L.W. Aubry, “Criminal Jurisdiction over Arctic Ice Islands: US v Escamilla, 4 UCLA Alaska Law Review (1978), 419, D. A. Cruickshank, “Arctic Ice and International Law: The Escamilla Case,” 10 W. Ont. L. Rev. (1971), 178, D. Wilkes, “Law for Special Environments: Ice Islands and Questions Raised by the T3 Case,” 16 (100) Polar Record (1972), 23, and T.W. Williams, “Legal Implications: Jurisdiction,” in G.S. Schatz, ed., Science Technology and Sovereignty in the Polar Regions (1974), 55.
 It was apparently last seen in 1983. See A Study of Mail from Ice Islands; featuring T-3, Fletcher's Ice Island, Drift Station Bravo, et al., at http://www.qsl.net/kg0yh/ice.htm. See picture at http://www.south-pole.com/aspp027.htm.
 467 F. 2d 341, 342 (1972).
 The United States could have taken jurisdiction under international law on the nationality principle, as the accused was a US citizen, but the statute apparently did not allow this.
 See Emma Daly, ‘After Oil Spill, Spain and France Impose Strict Tanker Inspections’, New York. Times (27 November 2002), at A5, col. 3. Available at http://query.nytimes.com/gst/abstract.html?res=F30715F73D5C0C748EDDA80994DA404482.