International Affairs · Law · Public Policy

A Glance at UNCLOS

Coastal States have the right to adopt and enforce non-discriminatory laws and regulations for the prevention, reduction and control of marine pollution from vessels in ice-covered areas within the limits of the exclusive economic zone, where particularly severe climatic conditions and the presence of ice covering such areas for most of the year create obstructions or exceptional hazards to navigation, and pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance. Such laws and regulations shall have due regard to navigation and the protection and preservation of the marine environment based on the best available scientific evidence.”

The above mentioned Article of the United Nations Convention on Laws of the Sea (UNCLOS) authorizes coastal States to develop and administer special regulations dealing with human activities in ice-covered waters. Article 234 stands as the sole provision in the Convention used to govern international activities in ‘frozen seas’ which includes the Arctic region. Although some sections grant countries sovereign rights to areas based on the differentiation into territorial waters, exclusive economic zones, extended continental shelf etc such as Article 77 with respect to Canada, Article 234 explicitly deals with ice-covered waters. In this article, I endeavour to elaborate, analyze and present my arguments against the relatively weak and non-binding legal mechanisms in place for regulation of the Arctic region.

Currently, the only internationally recognized Convention used as reference for a control of activities in the Arctic is the UNCLOS. Before proceeding to examine other multi-state mechanisms, it is critical to establish certain facts.

Firstly, the UNCLOS was not built keeping in consideration the Arctic and only a few sections can be interpreted for those purposes.

Secondly, ‘ice-covered’ areas in Article 234 have been not clearly defined. The legal status of ice-covered areas can differ based on its location and whether it’s a land mass or sea.

Thirdly, the legal regime of the Arctic currently focuses on ‘soft law’ and thus, acts more as a guide to environmental protection than a robust system to monitor activities by nations.

Fourthly, the United States of America (USA) has not ratified the UNCLOS which means if they were to engage in say, a drilling program in the Arctic, the maximum they could be subjected to is criticism and condemnation from the international community.

From the aforementioned points, it is clear that the Arctic region is not governed by the UNCLOS but in fact, the interpretations of it as understood by the Arctic States. To put it simply, given the different and perhaps differing facets of the region, the UNCLOS falls short as the primary legal reference for regulating activity.

The Arctic Council, which acts as the highest forum for multi-state cooperation in the Arctic region consists of Denmark, USA, Russian Federation, Norway, Iceland, Sweden, Finland and Canada. Formed due to the inadequacies of the Arctic Environmental Protection Strategy (APES), the Arctic Council largely faced the same issues and criticisms. The linear focus on environmental issues and not the region as a whole dented its efficiency. Although it can be regarded as a successful platform to initiate discussion, the paucity of solution-centric outcomes renders it a weak institution. The primary argument for the failure of the APES and the Arctic Council in becoming a strong legal mechanism is the merely deliberative nature and absence of binding action on the nations. The absence of security concerns in its objectives and the exclusion of the threat that militarization of the Arctic could pose have led many to widely criticize this body as one that can make a difference to territorial claims and discussions.

It is of critical importance here to mention the Iluissat Declaration of 2008 that rejected the need for a comprehensive legal regime to govern the Arctic Ocean and instead focused on the predominant role of the Arctic States for purposes of environmental protection, safety of maritime navigation, prevention of the risk if ship-based pollution etc.

Therefore it’s evident that UNCLOS forms the pinnacle of the current legal system governing the Arctic. However, in addition to the loopholes mentioned in the beginning that make this Convention a deficient mechanism, certain contextual and environmental factors have arisen which call for a stronger legal regime.

Firstly, barring the Russian Federation, the Arctic Five countries are all part of the North Atlantic Treaty Organization (NATO). This effectively rules out a potential military tension or conflict. However, with the People’s Republic of China recently making a claim on the Arctic and stating that the region belongs to all the people around the world, the hitherto peaceful nature of discussions might transform. Citing population as a basis for the claim, it is needless to say that China’s involvement calls for a reconsideration of the present legal mechanisms.

Secondly, climatic conditions that have resulted in the highest temperatures ever recorded in the Arctic and a constant melting of ice caps call for immediate attention toward environmental protection. With traversing through the Arctic becoming easier due to global warming and resources becoming more accessible by extension, the battle over oil and natural gas reserves is poised to turn ugly.

Lastly, with the threat of huge amounts of nuclear waste lying under the icy water, pervading to other continents, international cooperation and more importantly, a legally binding treaty that focuses on nuclear waste management among other issues could be of great significance.

In conclusion, considering the past and present legal mechanisms of the Arctic as well as examining the novel aspects beginning to surface, a stronger framework for regulation and monitoring has become the need of the hour.

About the Author

ED3Anushka Kaushik is currently pursuing Journalism from Lady Shri Ram College for Women, Delhi University and strongly believes in the power of the media to influence change in matter of public policy. She is of the opinion however that consuming media content is as important as having media awareness. Her interest and professional goal lies in the study of international relations and eventually reporting in such matters for print media.  She is currently pursuing her internship with Alexis Centre for Public Policy and International Relations.

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