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Russia and the UN Convention on the Law of the Sea

By Edited Nov 13, 2013 0 0
arctic claims
Credit: http://www.europarussia.com/posts/982

Since the fall of the Soviet Union, Russia has been struggling with an identity crisis, and its position in the world.  The desperation of Boris Yeltsin during his run for a second term led to the massive sell-off of state property to a small group of wealthy businessman referred to as the “oligarchs” (Thedailycaller.com, 2012).  After Vladmir Putin was elected, Russia began to see a resurgence in her material wealth and exterior power on the world stage.  This power was completely funded and only possible through massive rises in the price of oil and natural gas, of which Russia has an ample supply.  The Arctic is believed to have 13% of the undiscovered oil, 30% of undiscovered natural gas and 20% of undiscovered natural gas liquids (Cold Cliff Blog, 2008).  Russia’s massive Arctic boundaries will give them access to a large percentage of these resources, and ensure their stability and ability to project economic strength throughout the world.  Russia’s renewed interest in the Arctic was poignantly signaled to the world at large, when in 2007 A Russian submarine planted a titanium flag on the Lomonosov ridge (Cnn.com, 2007)

International Framework

            The U.N. Convention on the Law of the Seas (UNCLOS) is the framework upon which Russia is building its case to take part in the great land grab of the 21st Century.  To fully understand Russia’s position and legal framework they are operating under it is necessary to go over UNCLOS in semi-detail. A nation’s territorial sea is measured as 12 nautical miles from the baseline of the coast (UN.org, 1982).  The nation has unfettered territorial rights over that section of the airspace, sea column the seabed and all resources contained within.  Beyond that is the Exclusive Economic Zone (EEZ) which extends no farther than 200 nautical miles beyond the territorial sea.  The nation has sovereign rights over the natural resources of the water column, seabed and subsoil (UN.org, 1982).  The EEZ is the zone upon which the recognized nation’s continental shelf also extends (Van Pay, 2012). A Nation may claim an area beyond the specified 200 nautical miles as their “Extended Continental Shelf” (ECS) if it meets the formula and limit line in UNCLOS article 76 (Van Pay, 2012).  The nation has sovereign rights of the natural resources of the seabed and subsoil of the ECS area (Van Pay, 2012), and this is the reason for Russia’s extensive mapping of the Arctic seabed and the planting of the flag there in 2007 (CNN.com, 2007).

The Lomonsov and Mendeleyev ridges are underground mountain chains that are central to the Russian’s claim to an ECS area.  One the leading international precedents for this claim is the International Court of Justice rulings in the Tunisia/Libya and Libya/Malta Continental shelf cases.  In both cases “The ICJ indicated that the natural prolongation may be defined by reference to either the geology or geomorphology of the seabed.” (The American Society of International Law ASIL insights, 2007).  This however is not an open and shut case for Russia as it is recognized that the prolongation has the potential to be included in the continental shelf of a country, but is not “sufficient legal inclusion in the continental shelf” (The American Society of International Law ASIL insights, 2007).  In short, it helps the case of the Russian Federation, but it is not the smoking gun many in the Federation purport it to be under International Law, since Article 76 also states that paragraphs 4-6 limit this claim (UN.org, 1982).

Another possible criterion for Russian claims is the use of “oceanic ridges” laid out in Article 76, paragraphs 3 & 6 (UN.org, 1982).  Oceanic Ridges appear without any true definition in article three other than “The continental margin…does not include deep ocean floor with its oceanic ridges of the subsoil thereof” (UN.org, 1982).  Although these ridges only fall under this if they are beyond the “outer constraint line” and not part of the continental shelf (The American Society of International Law ASIL insights, 2007). So the case has to be made for the Lomonsov and Mendeleyev ridges are connected to the continental shelf and not separate and part of the Oceanic floor. 

The term “Submarine ridges” also appears in paragraph 6 of Article 76 and can be considered part of the natural prolongation and thus applicable to their claim.  These cannot exceed the 350 nautical mile limit measured from the baseline, “even if these parts of the…ridges satisfy the 2500 meters isobaths +100 mile formula.” (The American Society of International Law ASIL insights, 2007).  Thus no part of the submarine ridges can apply to a claim beyond the 350 nautical mile limit.  The last section is also laid out in paragraph 6 of Article 76, and these are “Submarine Ridges” (UN.org, 1982).  These are considered “Natural components of the continental margin such as a plateau, rises, caps, banks and spurs” (UN.org, 1982).  These elevations can be included in the continental shelf claim, but also they have no 350 mile outer limit constraint as long as they meet the 2500 meter isobaths + 100 miles formula (The American Society of International Law ASIL insights, 2007).  

With the submission process under a guise of confidentiality it is impossible to know exactly what provisions were invoked in Russia’s submissions in 2001 or 2009, but it undoubtedly included the “prolongations” discussed.  The Russian Federation is a member of many of the “Arctic organizations” that have been established to foster dialogue in the Arctic region.  The Russian Federation has become more involved in multinational organizations and international ‘diplomacy’ since the fall of the Soviet Union.  With their massive loss of territory, military strength and power in the international sphere, and fear of NATO and Chinese expansion into their formers spheres of influence Russia has been on a somewhat subtle campaign of passive/aggressive diplomacy. 

Some of these organizations are considered “Soft law”, that is without binding authority, their findings and recommendations are just that, recommendations; however some are “hard law” in that the countries that have ratified the treaty/organization have allowed themselves to be legally bound to the decisions of that organization.  Some of the Organizations involved are

  • The Arctic Council.  Established in 1996, it was established in 1996 in Ottawa, Canada.  The Council was “empowered to deal with common Arctic issues, in particular issues of sustainable development and environmental protection in the Arctic.”  This mandate was very wide as “common issues” can mean nearly any international issue.  The Council is considered a “soft-law” body, in that its rulings, findings are not binding upon participants.  This council however is the main

     International body that deals with the Arctic and the interests of the “Arctic Eight” (Loukacheva, 2010).  

 

  • Russian Association of Indigenous Peoples of the North (RAIPON). Established in 1990 at the first congress of the indigenous peoples of the North, in the former Soviet Union.  Raipon itself is the main body of 35 regional and ethnic organizations that represent 41 groups of indigenous peoples in the North, Siberia and the Far East.  RAIPON is one the permanent participants to the Arctic council alongside the ICC, Saami Council and other organizations representing indigenous peoples throughout the Arctic Nation States.

 

The following are “hard law” institutions that the Russian Federation belongs to, some are actually strictly enforced, while others are often, using a colloquial expression, ‘toothless’.

 

  • The United Nations. 
    • The United Nations have several treaties that pertain to the Arctic, but the main being the Convention on the Law of the Sea (LOSC).  As mentioned earlier, Russia has been aggressively researching their Arctic claims through the guidelines set out in Article 76 of UNCLOS.  UNCLOS mainly focuses on “clarifying the rights and responsibilities of coastal states in the five zones of national jurisdiction, internal waters, the territorial sea, a contiguous zone, the exclusive economic zone (EEZ) and a continental shelf.”  This convention basically gives a framework for claims and resolution of disputes of these claims for waters extending to between 200 and 250 nautical miles from the coasts of all countries.  This is very important in the Arctic, as claims over waters rich in possible resources will and have come into dispute between nations (Loukacheva, 2010). 
    • The United Nations also contains the International Maritime Organization, which oversees the safety and security of shipping as well as the prevention of marine pollution.  This organization enforces the International Convention for the Prevention of Pollution from Ships (MARPOL).  MARPOL is applicable to ships in the Arctic and will become even more important as Global Warming opens new shipping lanes in the Arctic and namely the Northeast Sea route through Russian waters (IMO|About IMO, 2012).
    • The Permanent Forum on Indigenous Issues.  The forum is one of the three UN bodies that are mandated to specifically deal with indigenous peoples issues.  They provide advice and recommendations on these issues to the Social Council, programmes, funds and agencies of the UN through that Council.  This applies to the Arctic because it is one of the avenues that Indigenous tribes, nations and peoples can use to bring awareness to indigenous claims, concerns and rights to arctic nations and the world at large (DSPD Indigenous Issues, 2012).  Russia herself abstained from the voting during the adoption of this declaration (Declaration on the rights of Indigenous Peoples, 2007), but in recent years has been urged and lobbied to adopt this declaration (Russia-Arctic Caucus, 2011).
    • The Agreement on the Conservation of Polar Bears, the Convention on Biological Diversity and the Convention on International Trade in Endangered Species are all other UN instruments and conventions that affect Arctic policy in regards to the wildlife and their protection in their natural habitat in the Arctic (Loukacheva, 2010).
    • International Whaling Commission.  This organization introduced in 1946, is charged with the regulation of commercial and scientific Whaling.  They introduce limits on size and numbers of whales that may be taken, designate areas as whale sanctuaries and prescribe when seasons open or close for whaling.  This organization has jurisdiction and plays a part in Arctic policy as indigenous peoples of the Arctic are allowed and do hunt whales as a part of their subsistence and cultural lifestyles (Home page of the International Whaling Commission, 2012).
    • Fisheries.  There are a multitude of national, bilateral and international arrangements for fisheries that are present in or near Arctic waters.
      • The Bilateral (US and Russia) Intergovernmental Conductive Committee
      • The North Pacific Andramous Fish Commission
      • The Norway-Russian Federation Fisheries Commission
      • The Convention on the Conservation and Management of the Pollock Resources in the Central Bering Sea  (Loukacheva, 2010)

       

    • The Inuit Circumpolar Council, which represents Intuits of Alaska, Four regions in Canada and Chukotka in Russia and Greenland.  The stated goals of the ICC are:
    • To strengthen unity among Inuit of the Circumpolar region
    • To promote Inuit rights and interests on the international level
    • To ensure and further develop Inuit culture and society for both the present and future generations
    • To seek full and active participation in the political, economic, and social development in our homelands
    • To develop and encourage long-term policies which safeguard the Arctic environment
    • To work for international recognition of the human rights of all Indigenous Peoples. (ICC-Inuit.org:Front, 2012)

    Russia’s main focus is to secure as much of the Arctic for her own economic interests as possible.  Russia knows that there economy is not one that is diversified and able to handle uncertainty or a shift in global economics.  The share of Russia’s GDP that oil and gas have has risen from 12.7% in 1999 to 31.6% in 2007, which Natural resources accounting for 80% of their exports (economist.com, 2008).  Russia knows that their precarious rise back to being a major player on the world stage is wholeheartedly funded and steadied by high demand and price for their oil and gas.  Russia’s future is oil and gas; her future is not in her people, but what lies below their land and sea.  This is the danger in the coming race for the Arctic, nations whose very existence hang in the balance, bolstered only by the money that flows in from an ever decreasing supply of oil and gas, can be very dangerous when backed into the corner of their empty gas tanks. 

Russia will continue to play the multilateral game of international negotiation and cooperation in the Arctic.  But Russian policy is hard to nail down since the fall of the Soviet Union.  Russian private enterprise and government are so convoluted and mixed together there really is not true public government or private enterprise.  Putin has installed and helped the rise of many former KGB/FSB men throughout Russia’s most powerful and richest companies.  As seen in recent elections, it is in the interest of those in power throughout the State/industry to keep in power those who put power and money into the collective kitty so to speak.

 

The future of the Arctic will reflect to a degree the polarized schema of the world, but in itself it will be a multi-polar world unto itself.  The U.S. does not have the largest hand in the game, and with its declining economy and power throughout the world, their ability to sway energy producing nations like they have in the Middle East will be less effective in the Arctic.  Russia will see a resurgence in her power, but it will never amount to the same as they wish it to be as it was during the Cold war.  Energy will still be the currency of power in the future, whoever controls larger stakes will control larger pieces of the power pie, and Russia will hold a large piece of it.  The Russian view of the world is not completely Western in its origin, but a mix of East and West, due to her intriguing past and exploits in the Far East.  In the West we see things as linear, a beginning, middle an end, a country rises a country falls, while in the east, it is seen as cyclical, a snake chasing its own tail.  The best way to view the Russian mind is in an old Proverb.

 

“Бе́шеной соба́ке семь вёрст не крюк.”

“For a mad dog, seven versts [one mile] is not a long detour”

russian claims
Credit: http://www.russiablog.org/2007/08/short_facts_about_russian_nort.php
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