By: Daniel Wiltshire
Disclaimer: The views expressed herein are those of the blogger and are not to be construed as official or reflecting the views of the Commandant or of the U.S. Coast Guard.
In 2014, the MV Nunavik became the first cargo ship to successfully transit the Arctic via the Northwest Passage. The transit is notable because it was the first instance of a large commercial vessel making the journey without a dedicated ice breaker to clear the way, indicating that the Arctic was becoming a viable commercial thoroughfare between the Atlantic and Pacific oceans. The pace of transit through the Arctic has quickened. On August 17, 2017, the Russian-flagged liquid natural gas carrier Christophe de Margerie transited from South Korea to Norway via a route that had previously was blocked by ice. Most recently in September 2018, the Venta Maersk transited through the Northern Sea Route with only limited icebreaker support. Formerly an impassable expanse, climate change has turned the Arctic into a viable path for commercial traffic. What’s more, the Arctic’s continental shelf is rich with unexploited natural resources including up to 30 percent of the world’s natural gas reserves, and the nations that border the Arctic seek to expand their territorial claims. Russia and China, the latter of which lacks an arctic border, have recently transgressed U.S. territorial claims in the region.
Russia has advanced new claims to the UN extending its continental shelf well beyond the North Pole, and has backed those claims with increased military and economic presence in the region. The United States is poorly situated to exercise legal remedies to contest Russian claims adverse to U.S. interests.
Maritime boundaries are defined by the UN Convention on the Law of the Sea (UNCLOS), which states that each coastal state has the right to exploit the natural resources of its continental shelf. Such boundaries are unusually complicated in the Arctic where the continental shelf extends throughout most of the region, thereby failing to provide a clear geographic limit to each nation’s territory, causing territorial claims to be subject to negotiation.
In other regions where maritime claims are disputed, like the South China Sea, the United States has successfully relied on its Freedom of Navigation Program (FON) to refute excessive territorial claims, as exemplified by recent interactions between United States and Chinese warships. During FON operations, the United States deliberately operates military vessels within the disputed claim of another country to assert the UNCLOS-assured right of Innocent Passage to navigate those waters or, as in the case of artificial islands made by China, to rebut another nation’s claim of sovereignty over the associated Exclusive Economic Zone.
However, the United States is poorly positioned to rebut increasing Russian claims in this manner. FON exercises work inthe South China Sea because they are repeatable demonstrations of U.S. reliance on internationallaw that rebut the disputed claims of the claimant nation, supported by a robust fleet of ships able to transit in the excessive claims of other states. Unfortunately, the United States lacks thecapacity to conduct meaningful FON operations in the Arctic. The U.S. Navy lacks icebreakers and the rest of its fleet is not “hardened” to operate in polar ice. The U.S. Coast Guard – the only military branch with icebreaking capability – operates just two functional U.S. flagged icebreakers capable of operating in the Arctic. The current plan to ameliorate this shortfall involves construction of three new Polar Security Cutter icebreakers, with the first of the new class entering service in 2023. However, even if the Coast Guard’s icebreaker fleet were increased by three ships, U.S. capacity in the Arctic would still pale in comparison to Russia, which has forty-six icebreakers in operation- some of them nuclear powered – with eleven under construction and four planned.
Unable to exercise Article 17 of UNCLOS through physical presence, the United States is similarly limited in its ability to do so through reliance on treaties. The United States is not a signatory to UNCLOS, though it treats the convention as customary international law. However as a non-signatory, the United States arguably lacks standing before the UN Commission on the Limits of the Continental Shelf (CLCS), the critical body tasked with making recommendations on the boundaries of states’ continental shelf claims. Consequently, the United States is ill-situated to appeal any adverse territorial rulings.
Russia’s claim of sovereignty over the North Pole has not yet been settled, and there is no indication that it will disregard the UN’s ruling should the ruling not go Russia’s way.
However, should temperatures continue to rise between the United States and Russia regarding Arctic territorial claims, the United States lacks the tools needed to address the issue through physical presence or reliance on UNCLOS.
Absent more ambitious U.S. shipbuilding policy or ratification of UNCLOS, the United States will remain at a significant military and legal disadvantage in the Arctic.