Who gets the oil?: Arctic energy exploration in uncertain waters and the need for universal ratification of the United Nations Convention on the Law of the Sea.

• Author: Wilder, Meagan P.

1. INTRODUCTION TO THE ARCTIC II. OIL AND GAS IN THE ARCTIC AND THE IMPLICATIONS OF CLIMATE CHANGE A. Arctic Geography B. Oil in the Arctic C. Scientific Projections on the Arctic III. EMERGING ARCTIC TERRITORIAL DISPUTES IV. THE LANGUAGE AND HISTORY OF THE LAW OF THE SEA. A. Legal Background on the Law of the Sea B. The Content of the U.N. Convention on the Law of the Sea C. Existing Legal Framework for Claims to Territory under UNCLOS V. ONE OPTION FOR RESOLVING ARCTIC TERRITORIAL DISPUTES UNDER UNCLOS A. Abandoning UNCLOS Is Not Necessary B. Specific Recommendations VI. CONCLUSION AND CALL TO ACTION "International law in most important particulars never has been impartially just and never has been stable, but always has been and always will be a product of the interplay of national interests, prejudices and pressures, and therefore has been unstable, uncertain, and controversial." (1)

1. INTRODUCTION TO THE ARCTIC

   Less than two weeks before President George W. Bush left the White House, the Bush Administration issued a Presidential Directive asserting that "[t]he United States is an Arctic [N]ation." (2) Though this declaration might have seemed surprising, it was the Administration's final attempt to position the United States to stake a claim in the Arctic--the last large piece of non-jurisdictional territory on Earth. (3)

   Isolated on top of the planet, the North Pole and the vast Arctic region surrounding it contain valuable oil and natural gas deposits. (4) Despite the region's valuable resources, until fairly recently, the international community has paid little attention to the Arctic. (5) As the Earth's atmosphere has warmed and the Polar Ice Cap has thawed, Arctic waters have become more navigable, causing fossil fuels in the Arctic to become more accessible. (6) The result has been a flurry of international competition. (7)

   The Arctic has been international territory since 1997 when 152 nation-states ratified the United Nations Convention on the Law of the Sea (UNCLOS). (8) Today, UNCLOS governs territorial claims in the Arctic. (9) Under UNCLOS, each of the five nations bordering the Arctic--the United States, Russia, Canada, Denmark, and Norway--has limited jurisdiction extending up to 200 nautical miles from its respective coastal baseline. (10) Despite these limitations, UNCLOS also permits a country to extend its so-called offshore exclusive economic zone (EEZ) where it can demonstrate "that the Arctic seafloor's underwater ridges are not a separate feature, but a geological extension of the country's own continental shelf." (11)

   This rather obscure clause in UNCLOS has sparked an international race to the Arctic, dubbed the "Cold Rush." (12) Arctic nations now find themselves competing among one another for enormous wealth by submitting extended continental shelf claims to the United Nations. (13) These extended territorial claims have led to what some consider '"the last big shift in ownership of territory in the history of the Earth."' (14) The resolution of these disputes will determine which nations own a piece of the Arctic, and answer the ultimate question: "Who gets the oil"?

   This Comment will evaluate the effectiveness of UNCLOS at resolving Arctic territorial disputes. Part I will provide background information on Arctic geography and recent climate change in the region. Current Arctic territorial disputes under UNCLOS will be discussed in Part II, with a focus on Russia's current extended continental shelf claim. Background information on early maritime law and the law of the sea will be provided in Part III, as well as an outline of the relevant provisions of UNCLOS. Part IV will recommend one option for resolving extended continental shelf claims under UNCLOS. Specifically, Part V will argue for universal ratification of UNCLOS and posit that UNCLOS signatories amend Article 298 to permit binding resolution of boundary disputes pursuant to Article 287. Part VI will conclude this Comment, emphasizing the need for immediate action among Arctic nations to resolve current and future Arctic territorial disputes.

2. OIL AND GAS IN THE ARCTIC AND THE IMPLICATIONS OF CLIMATE CHANGE

   1. Arctic Geography

      "Arctic" refers to the region immediately surrounding the North Pole. (15) The region has been defined in numerous ways. (16) It is the region north of the Arctic Circle (66[degrees] 33'N), and the area with a 10[degrees] C (50[degrees] F) July isotherm. (17) Approximately half of the Arctic is "deep basin," depressed area on the earth's surface, mostly covered by ice. (18) The other half of the Arctic is "continental shelf," "shallow extensions of the bordering countries' land." (19)

      The Arctic Ocean is the world's smallest ocean. (20) Spanning only fourteen million square-kilometers, it is less than twice the size of the United States. (21) For most of the year, a large Polar Ice Cap covers the surface of the Arctic Ocean. (22) The five "Arctic nations" that have territory within the Arctic Circle include the United States (via Alaska), Russia, Canada, Denmark (via Greenland), and Norway. (23)

   2. Oil in the Arctic

      In July 2008, the U.S. Geological Survey (USGS) released the first petroleum resource estimate of the entire Arctic region. (24) According to this study, the "area north of the Arctic Circle has an estimated 90 billion barrels of undiscovered, technically recoverable oil, 1,670 trillion cubic feet of recoverable natural gas, and 44 billion barrels of recoverable natural gas liquids in 25 geologically defined areas...." (25) However, in updated findings released in May 2009, the USGS estimates the Arctic may hold twice the amount of oil previously thought. (26) As Donald Gautier, lead author of the survey states, '"[b]ased on our study, there are 40 [billion] to 160 billion barrels of oil north of the Arctic Circle."' (27) Reports have confirmed that these resources account for an astonishing "30% of the world's undiscovered gas and 13% of the world's undiscovered oil...." (28)

      Exploration for petroleum in the Arctic has already led to the discovery of "more than 400 oil and gas fields north of the Arctic Circle," (29) an area approximately ten times larger than Iraq. (30) These oil fields alone account for "approximately 40 billion barrels of oil, more than 1,100 trillion cubic feet of gas, and 8.5 billion barrels of natural gas liquids." (31) With such great wealth at stake, Arctic countries have found expensive oil exploration to be increasingly worthwhile. (32)

   3. Scientific Projections on the Arctic

      Scientific research suggests the Arctic climate is warming at a rapid pace. (33) Such warming has caused the Arctic to accelerate towards an ecological state that has not existed for more than one million years. (34) The U.N. General Assembly has repeatedly reported that the Arctic climate is warming rapidly. (35) In fact, the Arctic "has warmed nearly twice as fast as the remainder of the world over the past twenty years." (36) Results of such warming include melting ice, thawing of permafrost, and shortening of the snow season. (37)

      Western scientists have estimated that the Arctic Polar Ice Cap is melting at 3% a year. (38) As such, it is believed that the Arctic has lost approximately 10% of "its ice per decade since 1953." (39) Accordingly, ice in the Arctic has receded approximately 40% since 1979. (40) Notably, in the summer of 2007, Arctic ice was at an all-time low. (41) A near-record ice low in the summer of 2008 followed. (42)

      Concerning the future of the Arctic, "computer projections suggest that the average temperature in the Arctic could rise between 3[degrees]C and 9[degrees]C during the next century, twice as much as the average rise in the rest of the world." (43) At that rate, according to a study sponsored by the U.S. National Science Foundation and NASA, the Arctic could have an entirely ice-free summer as early as 2037. (44) Although not all scientists and government officials agree that global warming is occurring, (45) policy makers of Arctic nations do, and are currently positioning their nations to take advantage of the new Arctic environment. (46)

      As the Arctic continues to melt, the region has become "more navigable for commerce and more accessible for mining." (47) Spurred by prospects of vast fossil fuel reserves beneath the Arctic seabed, Arctic nations have begun to explore the region to assess what might be at stake. (48) Motivated by the availability of these untapped fossil fuels, the "Cold Rush" has begun. (49)

3. EMERGING ARCTIC TERRITORIAL DISPUTES

   In the race to the Arctic, Russia, already the largest country in the world, has taken the lead. (50) In August 2007, Russia sent two twenty-six foot-long submersibles, Mir-1 and Mir-2, to the Arctic. (51) Antatoly Sagalevich, head of the Deep Manned Submersibles Laboratory at the Russian Academy of Science's P.P. Shirshov Institute of Oceanology, was the arctonaut at the helm of Mir-1. (52) When the submersible reached the North Pole, Sagalevich used a robotic arm to plant a small titanium Russian flag at the bottom of the Arctic Ocean. (53) In doing so, Russia became the first country to literally plant a flag on the North Pole, symbolically claiming the land and all its resources as its own. (54) According to Artur Chilingarov, a member of the Russian parliament, the purpose of the flag-planting was to '"stake the place for Russia."' (55) As Chilingarov expressly declared, "[t]he Arctic has always been Russian." (56)

   Strengthening its symbolic act, Russia has gathered evidence to suggest that its continental shelf extends to the Arctic. (57) Pursuant to UNCLOS, in order for Russia to establish a valid legal claim to any Arctic territory, Russia must establish that its continental shelf connects to the North Pole. (58) To date, Russia has gathered substantial scientific evidence to suggest that the Lomonosov Ridge, an underwater mountain range along the Arctic Ocean, connects the North...