The Arctic is a resource that teeters on the brink of exhaustion. The northern polar region is a necessary component of global weather and climate, via the hydrological cycle and the cooling effect of carbon trapping and ice albedo. This environmental role, however, is balanced precariously against the economic value that is trapped under the ice, in the form of fishery stocks, mineralogical wealth, and potential trade routes.
In spite of this delicate balance, the United Nations Convention on the Law of the Sea (“UNCLOS”) gives extraordinary license to just six nations to determine the fate of the Arctic. Their historical exploitation of the Arctic, however, suggests that additional oversight is necessary. Several control mechanisms are considered and a new system is proposed: the use of UNCLOS itself, and the International Tribunal on the Law of the Sea as a governing body to prevent destruction of the Arctic global resource.
When nations first conceived the Arctic as a part of the global commons, they believed the northern ice to be an insurmountable barrier to navigation and fishing.1 In subsequent agreements, these nations assumed the polar ice-cap to be an insurmountable barrier to mineral extraction as well.2
Now, however, the Arctic appears quite different.3 Since 1977, American oil concerns have been drilling for oil under the northern slope of Alaska.4 Recent exploration has included offshore areas, which contain eighty-four percent of remaining exploitable Arctic resources, totaling 90 billion barrels of oil and 1,670 trillion cubic feet of natural gas.5 The melting ice has also cleared an alternate path for shipping, reenergizing the search for the legendary Northwest Passage.6 On the other hand, the effects of climate change have had a dramatic and deleterious effect on the native Alaskan, Canadian, and Greenlander Inuit, as well as indigenous plant and animal species.7 These same effects will be felt across the globe as the polar melt accelerates global warming, decreases ocean salinity, and raises sea levels.8
Tempted by the benefits, and confronted by the responsibilities of managing the Arctic, the question of who has what claims on the northern polar region has become more pressing than ever before. The answer to this question is important for two reasons: first, clarifying polar property rights will prevent confrontations between states who wish to develop Arctic resources; second, establishing a framework for polar property rights-whether vested in a small collection of nations or an international body-will provide a forum in which states that are negatively affected by the impact of melting polar ice may seek redress.
The question of Arctic sovereignty has been explored in the past by many authors, including several in Donald Rothwell and Alex Oude Elferink’s collection of papers titled THE LAW OF THE SEA AND POLAR MARITIME DELIMITATION AND JURISDICTION.9 The authors collected therein explore some of the economic and environmental concerns unique to the Arctic, but ultimately conclude that there “is little about Arctic maritime zone claims which is particularly distinctive to the Arctic … most [claims] reflect a standard law of the sea approach.”10 This opinion, or variants on it, is commonly shared by authors such as Donat Pharand11 and Alex Oude Elferink.12 These authors, and the majority of their counterparts, believe that Article 76 of the United Nations Convention on the Law of the Sea (which permits states to extend their sovereignty beyond 200 miles) is the instrument which ought to exclusively determine polar property rights.13
The thesis of this article, however, is to suggest that the Law of the Sea-as it is currently applied to the Arctic-is ill equipped to deal with the variables unique to that region. Although the Law of the Sea does provide a mechanism to settle competing claims, it does so without respect for the importance of the Arctic environment to non-Arctic nations.14 Because of the strong economic incentives in favor of an ice free Arctic, this regime facilitates, rather than counterbalances, the disappearance of polar ice.15 This article argues that in order to resolve this imbalance, the International Tribunal for the Law of the Sea should extend its existing precedents to impose economic liability for environmental harms prohibited by the Convention on the Law of the Sea.
In reaching its thesis, this article proceeds in four sections. Section I explores the geographical and environmental concerns which particularly impact the Arctic region. Section II considers the Law of the Sea as it is currently applied to the Arctic. Section III examines the economic and mineralogical value of the Arctic region. Section IV considers the tension between the environmental and economic uses to which the Arctic may be put, and explores the effect of Article 76 of the United Nations Convention of the Law of the Sea in balancing those interests; this section also proposes an alternative regime for managing Arctic resources.