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January 09, 2023

The Arctic: Shrinking Ice, Growing Importance

By: Stanley Fields and Kevin Lunday
Shrinking Ice

Shrinking Ice

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Over the past decade, the Arctic has emerged as a new maritime frontier with the dynamic opening of navigable ocean brought about by the continuing reduction in sea-ice coverage due to climate change. Cong. Rsch. Serv., R41153, Changes in the Arctic: Background and Issues for Congress (2022). Dramatic change in the Arctic has accelerated the introduction of more human activity, from marine transportation and military activities to scientific research and natural resource extraction. The strategic competition between the United States and other major powers that continues to evolve in other geographic regions is also impacting the Arctic, raising unique legal questions but having no less consequential implications for global security.

Arctic Boundaries - Arctic Research & Policy Act

Arctic Boundaries - Arctic Research & Policy Act

Arctic Boundaries as defined by the Arctic Research & Policy Act-ARPA, Circumpolar Map

Other than the established boundaries of the Arctic Ocean, definitions vary as to what constitutes the Arctic as a region. Most international bodies and their members define the Arctic as the region north of the Arctic Circle (66.34’ North). See Arctic Region Map, Central Intelligence Agency. However, the United States defines the Arctic in the Arctic Research and Policy Act of 1984, Pub. L. No. 98-373, § 112, 98 Stat. 1242, 1248 (1984), as “all United States foreign territory north of the Arctic Circle and all United States territory north and west of the boundary formed by the Porcupine, Yukon, and Kuskokwim Rivers; all contiguous seas, including the Arctic Ocean and the Beaufort, Bering, and Chukchi Seas; and the Aleutian chain.” See Arctic Boundaries as defined by the Arctic Research & Policy Act Map, U.S. Geological Survey

The Past Decade: Rapid Physical Changes, Glacial Legal Ones

While the past decade saw significant reduction in sea ice coverage that has allowed increased maritime transportation and human activity in the Arctic, maritime law has remained relatively stable with only incremental changes in international governance. However glacial, these changes have been important.

The United Nations Convention on the Law of the Sea (UNCLOS), opened for signature Dec. 10, 1982, 1833 U.N.T.S. 397 (entered into force Nov. 16, 1994), remains the principal governing international law for the Arctic. The convention established international legal principles for both coastal states and flag states, such as territorial sea definitions and rights as well as the right to innocent passage for ships. The United States, while not a party to UNCLOS, nevertheless accepts most of the treaty’s provisions as reflective of customary international law and thus binding on all states. National Security Decision Directive 83, United States Oceans Policy, Law of the Sea and Exclusive Economic Zone (Mar. 10, 1983). The Arctic Research and Policy Act of 1984, supra, and corresponding executive orders describe U.S. domestic law and national policy regarding the Arctic. Not much has changed regarding the U.S. application of UNCLOS since 1983, when President Reagan stated that “the United States is prepared to accept and act in accordance with the [treaty’s] balance”. Cong. Rsch. Serv., R41153, Changes in the Arctic: Background and Issues for Congress (2022) (citing Ronald Reagan Presidential Library & Museum, “Statement on United States Oceans Policy”).

Most recent progress in international maritime law affecting the Arctic has been made through conventions and regulations of the United Nations’ International Maritime Organization (IMO), of which the United States is an active member. Zhao Long, Arctic Governance: Challenges and Opportunities (Nov. 29, 2018). In 2014, the IMO reached agreement on a Polar Code, which amended the International Convention for the Safety of Life at Sea (SOLAS) (entered into force May 25, 1980) and the International Convention for the Prevention of Pollution from Ships (MARPOL) (entered into force Oct. 2, 1983), for ships operating in the polar regions. The Polar Code provides international standards for ship design, construction, equipment, and operations, including crew training. Its amendments to SOLAS and MARPOL included specific provisions for ships and flag states operating in the Arctic, such as “ship design, construction and equipment; operational and training concerns; search and rescue; and, equally important, the protection of the unique environment and eco-systems of the polar regions.” International Maritime Organization, International Code for Ships Operating in Polar Waters (Polar Code) (entered into force Jan. 1, 2017).

In addition to the IMO, international regional forums have reached collective agreement on certain areas of common concern. The Arctic Council, created in 1996 as a consensus-based governance body of Arctic coastal states and other states adjacent to the region, has been the primary source of change in international regimes over the past decade. It has focused on achieving agreement among members on non-controversial issues. Arctic Council, About the Arctic Council. In 2011, the Arctic Council concluded the Arctic Search and Rescue Agreement, which divided the region into zones with respective areas of responsibility for coordination of search and rescue activities between coastal states. Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic, May 12, 2011. In 2013, the Arctic Council concluded the Arctic Marine Oil Pollution Preparedness and Response Agreement (MOSPA), providing for the application of the MARPOL to the region. Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic, May 15, 2013. In 2017, the Council concluded a scientific cooperation agreement. Agreement on Enhancing International Arctic Scientific Cooperation, May 11, 2017. There have been no significant agreements since the United States completed its two-year chairmanship of the Arctic Council in 2017. In 2021, Russia assumed the chairmanship from Canada for a two-year term ending in 2023. About the Arctic Council, supra. After the February 2022 Russian invasion of Ukraine, the United States and six other members suspended cooperation with Russia in the Arctic Council. Media Note, U.S. Dep’t of State, Joint Statement on Arctic Council Cooperation Following Russia’s Invasion of Ukraine (Mar. 3, 2022). Meanwhile, China, not an Arctic coastal state and only an observer to the Arctic Council, declared itself a “near-Arctic state” in 2018, a dubious political claim without legal basis. Elizabeth Wishnick, Will Russia Put China’s Arctic Ambitions on Ice? The Diplomat, June 5, 2021.

The Arctic Coast Guard Forum (ACGF) is an additional venue of international collaboration. Comprised of specialized operational components (“coast guards”) of eight member states, including the U.S. Coast Guard, the ACGF serves as a forum for cooperation and an arena for exercises on issues of mutual interest, including search and rescue and maritime pollution response. See The Arctic Coast Guard Forum; Arctic Strategic Outlook, U.S. Coast Guard (Apr. 2019); Emily Russell, US, Russia Agree on Shipping Standards for Bering Strait, Alaska Public Media, June 6, 2018; Coast Guard News, US and Russia Sign Joint Contingency Plan for Pollution Response, Feb. 2, 2021.

These consensus-based, multinational forums have provided opportunities for states to communicate and cooperate on matters of common interest and importance. Until the global disruptions of the COVID-19 pandemic and, more recently, the 2022 Russian invasion of Ukraine, they offered promise for increased dialogue and cooperation for maritime governance in the Arctic.

The Next Decade: Catching Up, Looking Ahead

The next ten years will see a different Arctic and one that will present a unique challenge to historic ideas and paradigms regarding the region. Alan Cunningham, Underneath the Ice: Undersea Cables, the Arctic Circle, and International Security, The Arctic Institute, Center for Circumpolar Security Studies, Mar. 29, 2022 (stating that reduced sea-ice will provide for increasing use of undersea cables in the Arctic); Lillian Alessa et al., Asymmetric Competition in the Arctic: Implications for North American Defense and Security, Journal of Indo-Pacific Affairs 21-23 (Winter 2021) (arguing that the increasing strategic importance of the Arctic requires a deliberate process of prioritizing competing lines of effort). First, the increases in maritime trade and natural resource extraction will continue to expand over the next decade. Now that technology and climate change have made the Arctic a more viable location for shipping and natural resource extraction, Arctic nations and other states will strive to exert greater influence and exercise more claims to Arctic resources. U.S. Dep’t of the Navy, A Blue Arctic: A Strategic Blueprint for the Arctic 1, 7 (2021) (“Despite containing the world’s smallest ocean, the Arctic Region has the potential to connect nearly 75% of the world’s population”); U.S. Dep’t of the Army, Regaining Arctic Dominance: The U.S. Army in the Arctic, 2, 5-6 (Jan. 19, 2021). The opening of more shipping lanes and increased opportunities for natural resource extraction (e.g., fisheries, oil, gas, rare earth minerals) have elevated the strategic value of the Arctic. See Eric Brewer et al., Deep Dive Debrief: Strategic Stability and Competition in the Arctic, Center for Strategic and International Studies (Jan. 6, 2021); Law of the Sea: A Policy Primer 64 (John Burgess et al. eds.,Tufts University, The Fletcher School of Law and Diplomacy) (2017). Approximately 90% of all global trade is conducted by seaborne transportation, and that volume is expected to double over the next 15 years. U.S. Dep’t of the Navy, supra. Consequently, if commercial transportation can increase profits by gaining efficiency and speed using Arctic Ocean navigation routes, such as the Northern Sea Route, then the region will attract additional traffic. Increased vessel traffic in the Arctic is already resulting in greater frequency of vessel casualties, search-and-rescue cases, and marine pollution events. U.S. Dep’t of Homeland Security, U.S. Coast Guard, Preliminary Findings, Port Access Route Study: In the Chukchi Sea, Bering Strait, and Bering Sea, Docket Number USCG-2014-0941 and USCG-2010-0833, Dec. 23, 2016.

With greater access to resources and more efficient transit routes, the Arctic will be a new arena for strategic competition. Both Russia and China have made efforts to increase their influence in the region and this trend will continue. See Shaheer Ahmad & Mohammad Ali Zafar, Russia’s Reimagined Arctic in the Age of Geopolitical Competition, Journal of Indo-Pacific Affairs (Mar. 9, 2022); Alessa, 1-3, 10-11, 24, supra; David Auerswald, A U.S. Security Strategy for the Arctic, War on The Rocks, May 27, 2021; Brewer, supra; U.S. Dep’t of the Navy, 1, 7, supra; U.S. Dep’t of the Army, 1-2, 5-6, 7, 10-12, supra. The United States has interpreted significant Russian military investments in the Arctic as a “multilayered militarization” of the region and indicated that Russia has “increase[d] the potential for competition and conflict.” U.S. Dep’t of the Navy, 7, 9, supra.

The strategic importance of the Arctic will undoubtedly grow over the next ten years as polar ice continues to recede and technological advancements in shipping allow easier access. The attractions of the region are too much for the nations of the world to ignore: quicker, cheaper transits for commercial transportation, greater ability to access oil and other mineral resources, and increased access to fish stocks. As commercial transportation gains more efficiency and speed utilizing the Northern Sea Route and Northwest Passage, military forces will similarly take advantage of easier movement through the Arctic into Europe, Asia, and North America. Indeed, Russia has recently demonstrated the capability to project forces from the Arctic into the North Atlantic and Pacific. See Brewer, supra; Vladimir Isachenkov, Russian Nuclear Submarine Test-fires 4 Missiles, Associated Press, Dec. 12, 2020; Hearing on Coast Guard Arctic Operations Before the S. Comm. on Commerce, Science & Transportation, 116th Cong. 2 (Dec. 8, 2020) (testimony of Adm. Charles W. Ray, Coast Guard Vice Commandant).

The United States and partner nations will seek to improve presence, coordination, and domain awareness in the Arctic. Auerswald, supra; Brewer, supra; Megan Eckstein, New Arctic Strategy Calls for Regular Presence as a Way to Compete With Russia, China, U.S. Naval Institute, Jan. 5, 2021; U.S. Dep’t of the Navy, 18-19, supra; U.S. Dep’t of the Army, 19-20, 23, supra. Improving communications and domain awareness is a challenge the United States shares with its allies, and its Arctic partners should be incorporated into those efforts. U.S. Dep’t of the Army, 19-20, 23, supra; U.S. Dep’t of the Air Force, Arctic Strategy 8, 11-12 (Jul. 21, 2020).

Russia has also attempted to establish new norms in the Arctic through its claims to the Outer Continental Shelf and its management of the Northern Sea Route. See Andrea Kendall-Taylor et al., Navigating Relations with Russia in the Arctic: A Roadmap for Stability, Center for a New American Security, Nov. 18, 2021; Auerswald, supra; Burgess, 61-62, supra. One of the most significant issues over the next ten years is how Russia will participate in developing legal frameworks and governance in the region. Russia has invested significantly more in the Arctic than any other state, which is unsurprising given Russia has more Arctic territory than any other state, and a large portion of its economic independence depends on its Arctic territory. Brewer, supra; U.S. Dep’t of the Army, 7-9, supra. Russia owns approximately 53% of the Arctic coastline. Brewer, supra. Predictably, Russia’s 2020 Arctic Strategy identifies the Arctic as a key component to its national security and articulates a national strategy for the region. Ekaterina Klimenko, Russia’s New Arctic Policy Document Signals Continuity Rather Than Change, Stockholm International Peace Research Institute, Apr. 6, 2020. Moreover, Russia’s Military Doctrine states that “ensuring the national interests of the Russian Federation in the Arctic” is one of the primary missions of the military. Russian Federation, Военная доктрина Российской Федерации (Military Doctrine of the Russian Federation), para. 32(s), Dec. 25, 2014. This links the military directly to securing the Russian Arctic, a region that is considered vital to Russia’s national security strategy.

Russia’s invasion of Ukraine has significantly disrupted the geopolitical environment. It is unclear how the Arctic will be impacted as established international norms and governance are being challenged. In theory, the Arctic could be one area where Russia, China, and the United States find opportunities for communication and dialogue over shared interests, despite tensions elsewhere. The Arctic presents a unique opportunity for constructive dialogue and cooperation between Russia, the United States, and the other Arctic nations. Russia seeks to establish the Northern Sea Route as a globally recognized transportation corridor that significantly reduces the distance, travel time, and fuel costs between European and Asian markets, thereby allowing goods to be transported faster and cheaper. Ahmad and Zafar, supra; James Kraska, International Security and International Law in the Northwest Passage, 42 Vanderbilt J. of Transnational L. 1109, 1124 (2021). Moreover, Russia’s economic viability and energy independence hinges on the Arctic because 75% of its oil reserves and 95% of its natural gas reserves are in the region. U.S. Dep’t of the Army, 10, supra. To serve its own interests, Russia could choose a more collaborative approach to establishing or reinforcing norms for maritime law in the Arctic. Ahmad and Zafar, supra. However, the Arctic is more likely to turn into another theater of strategic competition with increasing risk of conflict as Russia and China aggressively challenge established international norms. Given the recent disruptions to diplomatic efforts with Russia across a range of issues, and China’s apparent diplomatic alignment with Russia, and with no apparent near-term end to the conflict in Ukraine, it seems prospects for international cooperation in the Arctic are beyond the horizon. Zachary Basu, China Lays Out 5-point Position on Russia's Invasion of Ukraine, Axios, Feb. 25, 2022.

A change that can be expected within the next ten years is further development of the Northern Sea Route and Northwest Passage as viable trade routes. Ahmad and Zafar, supra. As a consequence, there will be a growing need for clarification on how Article 234 interacts with the general framework of UNCLOS and impacts various issues, such as the ability of coastal states to implement reporting and escort requirements for vessels that transit through their territorial seas, contiguous zones, and Exclusive Economic Zones. For example, the United States officially regards Russian and Canadian management of the Northern Sea Route and Northwest Passage as improper because they are contrary to U.S. interpretation of how Article 234 should be applied. However, both Russia and Canada take the position that they have designed regulatory frameworks based on governing international law, or at least their interpretations of it. See Burgess, 61, supra; Stanley P. Fields, Article 234 of the United Nations Convention on the Law of the Sea: The Overlooked Linchpin for Achieving Safety and Security in the U.S. Arctic, 7 Harvard National Security J. 80-86 (2016), but see Ahmad and Zafar, supra. It is incumbent on the United States as the world’s dominant naval power and an Arctic coastal state to assess its own position on Article 234 and adopt a clear policy position on the article’s application in the larger context of UNCLOS, particularly regarding international straits and transit passage. See U.S. Dep’t of the Army, 1-2, supra; Fields, 59-61, 81-93, supra; Agreement Between the Government of Canada and the Government of the United States of America on Arctic Cooperation, Can.-U.S., Jan. 11, 1988, E101701-CTS No. 1988/29. As maritime activity in and the strategic value of the Arctic increases, there will be an increasing need for clarity and consensus on coastal state rights pursuant to Article 234 in particular and international agreements in general.

Another possible development is progress on an international fisheries agreement to regulate commercial fishing in the Arctic. See Victoria Herrmann, Preparing for an Arctic on the Move: Developing Integrated, International Partnerships for the Ted Stevens Center for Arctic Security Studies, Journal of Indo-Pacific Affairs, Oct. 25, 2021; Burgess, 64, supra. The growing global population and rising demand for protein food resources have already sent fishing fleets throughout the world in search of new fishery resources. See, e.g., Steven Lee Myers, et al., How China Targets the Global Fish Supply, N.Y. Times, Sep. 26, 2022. Illegal, Unregulated, and Unreported (IUU) fishing has proliferated globally and there is growing concern about ensuring sustainable fisheries in the face of mounting IUU. U.S. Dep’t of State, Illegal, Unreported, and Unregulated Fishing.

With regard to international law, UNCLOS still provides the foundational legal framework for the Arctic, but there remains disagreement in the international community about how specific articles of the convention interact in the unique context of ice-covered waters in the Arctic. Burgess, 59, 61, supra. The world’s largest volume of resources under competing and contested claims are in the Arctic. Burgess, 62, supra. Nonetheless, the basic framework of UNCLOS, together with the Arctic Council and the International Maritime Organization, present proven and effective methods for developing international frameworks. Kendall-Taylor, supra; Kraska, 1129-30, supra.

As an Arctic nation and global power, the United States has vital interests in the Arctic that bear directly on U.S. national security and economic prosperity. Ahmad and Zafar, supra; Burgess, 64, supra. Historically, the Arctic has not been a key geographic focus of U.S. national security policy. It should be. The United States should set clear objectives and prioritize diplomatic, economic, and military activities essential to maintaining its sovereignty, and promoting Arctic maritime governance that reinforce established international norms that have proven essential to global stability and security.

The views expressed herein are those of the authors and do not represent the official position of the Commandant, the U.S. Coast Guard, the Department of Homeland Security, or the Department of Defense.

Kevin Lunday

Vice Admiral, U.S. Coast Guard

Kevin Lunday, Vice Admiral, U.S. Coast Guard, assumed the duties as Commander, Atlantic Area in May 2022 and is responsible for directing all Coast Guard operations in the inland navigable waters east of the Rocky Mountains, the Great Lakes, Gulf of Mexico, Caribbean Sea, and Atlantic Ocean, including the eastern Arctic, Atlantic basin, and the Middle East. He previously commanded Coast Guard operations in Oceania and the South Pacific as well as Coast Guard Cyber Command. He is a former Special Advisor to the Standing Committee on Law and National Security. He is licensed to practice in the Commonwealth of Virginia and State of Arizona.

Stanley Fields

Commander, U.S. Coast Guard

Stanley Fields, Commander, U.S. Coast Guard, serves as the Staff Judge Advocate at Joint Interagency Task Force-South, Naval Air Station Key West, Florida. His previous assignment locations include Alaska, Rhode Island, Afghanistan, Virginia, and Georgia. He is a graduate of Western New Mexico University, Eastern New Mexico University, the University of New Mexico School of Law, the U.S. Army Judge Advocate General's Legal Center and School, and Air War College. 

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The views expressed herein represent the opinions of the authors. They have not been approved by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the position of the Association or any of its entities. Nothing contained in this publication is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. This publication is intended for educational and informational purposes only.

The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.