There are a number of reasons why the legal challenges of determining the ownership of the Arctic's disputed regions are formidable. Sometimes it is simply because the scope and meaning of international law is itself unclear, for although a great deal of law has been codified into various treaties, the ICJ in The Hague still looks to vague, and occasionally contradictory, sources to pass judgement. International treaties are only binding on their signatory parties, and crucially the world's great superpower, the United States, has (at the time of writing) still not ratified the 1982 United Nations Convention on the Law of the Sea.
However, the disputes in the Arctic are likely to be particularly controversial for a number of reasons. One is that some parts of the region were once claimed by a number of explorers from several different countries. The Svalbard islands were probably first discovered by Vikings but were then occupied by both Norwegian and Russian explorers as early as the sixteenth century; their natural resources were unearthed much later. Another reason is that the Arctic has a uniquely complex geography: geographers and lawyers alike are not entirely sure if whole areas of the region, covered as it is for much or all of the year by thick ice, constitute 'land' or 'sea'.8 Sheet ice on the land is no different from any other piece of territory, but the status of other types of ice, such as fast ice, which is formed by seawater and clings to the coastline on a seasonal basis, and the vast floes of pack ice that move on the ocean for much of the year, are much harder to define. A Soviet naval officer, serving in the Northern Sea Route Authority, gave a description of this complex picture:
The ice cover of the Central Arctic is not a continuous massif of old ice.
It consists of ice fields and fragments of different thickness and age, with open leads between all the mobile floes, no matter what their thickness, degree of hummocking, geographical position or season of the year.9
Some international lawyers have wondered if the 1959 Antarctica Treaty can help shed light on this, or any other issue. But this agreement is unhelpful because it leaves open the question of whether ice can ever be the subject of a territorial claim, and because none of the countries that did make any such territorial claims under the Treaty ever referred to ice shelves. In any case it is uncertain how helpful any legal comparisons between the Arctic and Antarctic really are. The Antarctic is a continent, surrounded by a vast maritime belt, that rests on one thousand feet of land covered by a solid ice cap about three thousand feet thick. By contrast, the Arctic is an ocean that is surrounded by a vast and nearly continuous continental belt, and the North Pole rests on extremely deep water that is covered by thick, moving ice.
All sorts of other legal questions remain unanswered. Does the entire Arctic fall into a special category of 'ice-covered areas' that the 1982 Convention seems to create?10 And how can any ice-laden waters ever be described as 'high seas', over which ships always have certain freedoms, in the same way as any other?11 Without a precise definition it is impossible even to determine what the rules are, let alone how they should be applied.
These are some of the general questions that underwrite the variety of border disputes in the Arctic, while more particular issues arise in the context of the southern regions on the one hand and the uninhabitable High North on the other.
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