Border disputes

Some parts of the Arctic are contested not just because their landscape is unusually complex and the law uncertain, but because rival claimants appear to have equally strong claims. This can happen when an island lies exactly halfway between two countries with competing claims, and when there is no clear way of deciding the outcome. In such an inhospitable region, there is rarely a local population that can have a decisive say in the matter by simply casting its vote.

In this situation, most lawyers turn to the 1982 Convention. This lays down that 'where the coasts of two states are opposite or adjacent to each other' then the 'median line' that lies 'equidistant' to the two shores determines the border in the same way that the North Sea, for example, has been divided between Britain, Norway, Denmark and several other European countries (Map 3).37 But this very general rule gives no more than an indication about how to decide a dispute. A government can still point to a 'historic title or other special circumstances' that give it a right to ownership, or claim that its continental shelf runs past the median line.

These types of disputes can be resolved amicably, usually through international arbitration, in the same way that, in 1931, Norway formally recognized Canadian sovereignty over the Sverdrup Islands in the Arctic. But at other times contestants will present their case before the ICJ or, rarely, resort to force of arms.

Beaufort Sea

One of the ongoing controversies in the southern Arctic is whether this 'median line' should determine the demarcation of the Beaufort Sea, which lies off the shores of both Alaska and Canada's Yukon Territory (Map 2).

For Washington, the fairest way of adjudicating the boundary is to apply the widely used 'equidistance principle', which is incorporated by the 1982 Convention and more closely reflects the direction of the respective coastlines. Since the coastline slants from east to west, so too should the maritime border lie at the same perpendicular angle, about 30 degrees to the east. But Canada insists that the equidistance principle does not apply because it runs contrary to the 'special circumstances' (well-established historical practices) that the 1982 Convention mentions. An 1825 treaty between Russia and Great Britain defined the eastern border of Alaska as 'the meridian line of the 141st degree, in its prolongation as far as the Frozen Ocean'. In other words, as far as the thick pack ice that lies miles off shore. The Americans counter-argue that the border should follow the 141st meridian, but only on land: the seas should be divided in a different way and that 'the Frozen Ocean' always referred to the coastline, not the pack ice that lies much further out to sea.

On the map the disputed area of sea looks like an insignificant wedge, but in practice this area of 7,000 square nautical miles could prove hugely important in a region that geologists feel sure is rich in natural resources.38

Hans Island

There are several other disputed areas of the Arctic whose ownership, some rival claimants say, cannot be determined simply by easy reference to the 'equidistance' of the 1982 Convention. What happens, some countries ask, if the continental shelf of only one country extends beyond the equidistant line?

An example is the dispute that surrounds Hans Island in the Arctic Ocean (Map 2). Tiny and uninhabited, measuring barely a mile across, it is in some ways surprising that its status should ever have been a matter of international dispute. But situated in the Nares Strait, and lying exactly halfway between Greenland (which is ruled by Denmark) and Canada's Ellesmere Island, it has long been a source of disagreement between the two governments, which both continue to claim it as their own sovereign territory. The Danes say that the island belongs to them because 'relevant evidence in connection with defining the area of Greenland, such as geological and geomorphological evidence, clearly supports this point of view'.39

Although the island was discovered in the late nineteenth century, the origins of this dispute go back to 1933, when the Permanent Court of International Justice formally declared that Greenland was sovereign Danish territory.40 Denmark soon claimed that Hans Island was geologically just an extension of Greenland and has subsequently undertaken numerous scientific surveys of the Nares Strait to prove its point. But these claims have been strongly disputed by the Canadian government, which since the early 1970s has argued that the island falls under its own jurisdiction. Although in 1973 Canada and Denmark reached an agreement to draw a border between Greenland and Ellesmere Island, the status of Hans Island was left undetermined. The competing claims to the island have never been finally settled in international law and have become much more contentious since the early 1980s, when the area's oil-bearing potential had started to become clear.41

Barents Sea

The setting for some particularly long-lasting and bitter border disputes in the Arctic region is the Barents Sea, which has been the focus of some sharp disagreements between the Russian and Norwegian governments for some years (Map 5).

There are three disputed parts of the Barents. One is the Svalbard archipelago, a cluster of islands that lie 300 miles off Norway's north coast, while further south, along the Russian and Norwegian shores, is another disputed section of the Barents Sea known as the 'Grey Zone'. This is an area covering 19,475 square nautical miles where the border has long been disputed.42

A third disagreement is over the status of the 'Loophole', a large triangular region situated north of the Kola Peninsula, west of Novaya Zemlya, south-west of the Svalbard archipelago and roughly equidistant from all three. It covers 60,000 square miles.

The dispute over Svalbard revolves around an international agreement that was signed in 1920. The Spitsbergen (Svalbard) Treaty recognized Norwegian sovereignty over the islands, but also contained an unusual clause that grants other countries equal rights to any natural resources found on the land. The crucial part of the treaty is Article 3, which states that 'ships and nationals' of the signatory states 'shall be admitted under the same conditions of equality to the exercise and practice of all maritime, industrial, mining or commercial enterprises both on land and in the territorial waters, and no monopoly shall be established on any account or for any enterprise whatever'.43

The big question is what constitutes these 'territorial waters'. Does Russia or Iceland, for example, have an equal right to fish in all of the surrounding seas, whether it is a 200-mile economic zone or the full 350-miles over any outer continental shelf, or only within the 12-mile 'territorial sea'? The lawyers who drew up the treaty would certainly have had a very different idea from their contemporaries of what constitutes 'territorial waters'.44 Could the Norwegians establish an exclusive economic zone, or a restricted fishing area, surrounding the islands beyond that 12-mile limit, which would belong only to them?

Such questions surfaced in 1970, when Norway argued that the treaty gave other countries an equal right to fish only in the high seas and not within their own maritime zone that they claimed surrounded the islands. The Norwegian government announced the establishment of an exclusive economic zone, but in 1977 made a more modest claim, declaring that there was a fisheries protection zone - one that allowed other signatory countries to fish there provided they complied with Norwegian regulations - within the surrounding 200 miles. Every one of the signatories to the 1920 agreement accepted Norway's claim with one exception: Russia, whose fishing industry had always found these waters a highly fruitful source of stock.

Russia has always recognized that without the 1920 agreement and under the 1982 Convention alone, it would have no right to the fish stocks or any other natural resources in Svalbard's surrounding waters. Instead, the Russians know that the ICJ would simply draw a 'median line' between Svalbard and Franz Josef Land, which has been Russian territory since 1926, unless they could prove that it has the 'historic title or other special circumstances' that the Convention requires. Given the ambiguity that surrounds the 1920 agreement this is very far from certain, and the Russians have only quietly protested at the Norwegian claim because since 1977 they, like everyone else, have still been allowed to fish there on the same terms as everyone else. But such uncertainties have not prevented the Norwegians from strictly enforcing their claims, even opening fire in 1994 at an Icelandic trawler that was fishing there illegally.45

Nonetheless, the meaning of the 1920 treaty is becoming more important than ever because the waters of the Barents Sea are now thought to be particularly rich not just in fish, but also in oil and gas. Today the Norwegian government still claims that the 1920 agreement has only ever applied to resources that are discovered on land and therefore does not include offshore deposits of oil or natural gas, which it argues will be inside its territorial waters. But other countries, including Britain, take a different view. In 1986, the Foreign Office in London claimed that 'in our view Svalbard has its own continental shelf, to which the Treaty of Paris (Svalbard Treaty) applies. The extent of this shelf has not been determined'.46 London also sparked a minor diplomatic row in the summer of 2006 when it failed to invite Norway to a meeting with the United States, Russia and other member states of the European Union to discuss the future of the islands. The UK and other countries wanted their own oil companies to have equal access to Svalbard's waters in the event that the Norwegian government opened up these areas to tender.47

Hundreds of miles to the south is the Grey Zone, which is the setting for another simmering border dispute. This revolves around the same issue as the Beaufort Sea controversy: the question of how to determine the maritime boundary of waters between states with adjacent coasts. The Norwegians claim that drawing a 'median line', equidistant to the nearest part of each state's mainland, gives the fairest outcome. But the Russians have long argued that the median line is inappropriate because there are 'special circumstances'. This claim is based largely on a Soviet order of 1926, decreeing that the border should follow a more westerly line that runs all the way from the Russian-Norwegian border straight up to the North Pole, while bypassing the Svalbard archipelago. Tensions between Russia and Norway over the disputed Grey Zone surfaced in the early 1970s, but were abated in 1978 when they both agreed to share fishing rights there, even though the ownership of the disputed region was not finally settled.48

The third and final dispute in the Barents Sea concerns an area known simply as the 'Loophole'. This large triangular region is the subject of disagreement because it falls beyond the 200-mile limit that both Russia and Norway can claim as their exclusive economic zone. Strictly speaking, its waters are therefore 'high seas' and will remain so defined unless a coastal state can demonstrate that its outer continental shelf reaches beyond the 200-mile limit.

Fishing vessels have a right to go to the 'high seas' of the Loophole but have to cross Russian or Norwegian waters to get there. Some trawlers are tempted to take fishing stocks en route, or to exploit this particular area so heavily that a much wider area is affected. The same problem - of 'high seas enclaves' that are surrounded by national waters - bedevils several other areas. The Donut Hole, for example, is an enclave in the central Bering Sea that is surrounded by Russian and American waters. For many years international fishing vessels journeyed through these waters to reach the Hole and fish in this small enclave. When the stock of Bering Sea pollock diminished sharply in the early 1990s, both Washington and Moscow sought to crack down on unregulated fishing and in 1994 brokered the Donut Hole Agreement, which imposed strict quotas on foreign vessels.

The issue between Russia and Norway over the Loophole, however, is based on the question of whose continental shelf extends over it. In November 2006, 10 years after it had ratified the 1982 Convention, the Norwegian government formally submitted a claim to the UN, arguing that its continental shelf extended into three areas. One of these was the Loophole, while the other two were the Western Nansen Basin in the Arctic Ocean and a region, known alternatively as 'the Herring Loophole' or 'Banana Hole', which lies in the Norwegian Sea.49

As the underwater mission of Sagalevich and Chilingarov made so clear, the Russians are making their own comparable claim about the size of their continental shelf. Drawing a more westerly line through the Grey Zone than the Norwegians, they extend it northwards beyond their 200-mile economic zone and follow it through the Loophole, beyond Franz Josef Land up as far as the North Pole. This is the same course as the borders that were drawn by the Soviet authorities in 1926.

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