Areas of high seas

These measures - and others that a number of organizations have called for to protect the environment - could be taken without any serious or radical overhaul of the existing framework of international law.15 In order to defuse mistrust between nations and to prevent disputed areas in the Arctic region from becoming a future frontline for superpower rivalry, nothing very ambitious is necessarily required. Effective measures can be undertaken much more simply, and as a result, far more quickly without overturning existing structures of local government, such as the Arctic Council, or introducing new legislation. This is true not just of sharing the region's natural resources in an equitable manner, and preventing any confrontation from breaking out, but also of preventing environmental damage. As Joe Borg, the EU's commissioner for Fisheries and Maritime Affairs has argued, 'we don't need to reinvent the wheel to build a governance system for the Arctic. Indeed the structures we need already exist'. The existing framework, continues Borg, merely needs to be properly enforced and some gaps properly filled in: fishing stocks in large areas of the Arctic Ocean are still relatively unprotected, for example, and could potentially be covered by an extension of the Northeast Fisheries Commission.16

More difficult, however, is the task of preventing international rivalry and defusing mistrust in those areas that lie beyond outer continental shelves. These regions might turn out to be very small if the claims made by the 'Arctic Five' over the size of their outer continental shelves are accepted, but could be considerable if one or any are rejected in whole or in part.

Some such calls for drastic action have been made, and one academic has argued that:

we need to create an institution imbued with sovereign powers to develop the massive fuel sources in the Arctic Circle. It would be a far-reaching step, but the stakes warrant a special attempt to take it. . . Existing international law cannot deal with all forthcoming disputes. The sheer number of international bodies that claim some jurisdiction - including the Arctic Council, the Law of the Sea Convention, the United Nations International Maritime Commission - is a recipe for institutional competition, polarisation and delay.17

This, continues the argument, justifies the establishment of a new organization 'to which sovereignty is ceded by the nations around the Arctic Circle'.

Hopefully such drastic measures will also prove to be unnecessary. Instead it might prove possible to merely strengthen and clarify the role of the ISA. A new agreement, comparable to the 1959 Antarctic Treaty System, could certainly be struck over these areas of high seas, one that would temporarily resolve such issues as the exploitation of natural resources and the distribution of their proceeds, as well as the demarcation of overlapping continental shelves. As one distinguished international lawyer has argued, 'a relatively short framework treaty addressing some fundamental sovereignty and dispute resolution mechanisms which included a set of overarching regional management principles would provide a sound foundation for the regime'.18 Conceivably such a treaty could eventually cover the entire Arctic Ocean, not merely areas of high seas and overlapping shelves, although this would of course be very much harder to broker.

Of course any such agreement would far from guarantee a peaceful future for the Arctic region, or stop foreign governments from rushing to stake their claim to its waters and resources. It is hard not to be reminded of the Berlin Conference of 1884, which is the most obvious single example of how such deals can sometimes even prove wholly counterproductive: European countries were racing to claim for themselves the newly discovered lands that lay south of the Sahara, but far from slowing them down, as it was intended to, the conference merely helped to create a 'Scramble for Africa'. All these years later, every effort also needs to be made to avert a latter-day scramble in the world's last great wilderness.

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