113 / 532
97
WHAT IS THE LEGAL REGIME OF THE ARCTIC?
1. The issue of territorial claims in the Arctic
When, in 1909, Admiral Peary raised the flag of the USA on the North Pole, the
theoretical question which was discussed to some extent was whether the area
around the North Pole could be the
object of occupation
. According to Oppenheim
it probably could not be
because
it is not land
but merely frozen sea with drifting
ice.
3
Some authors
4
in the past, however, thought that a permanently frozen shelf
could be the object of effective occupation
. The Arctic region is surrounded by shores
of several states – Russia, Canada, the USA, Denmark (Greenland), Norway.
Islands can be found in this area, and so the question on which to base the
territorial claims to these islands or frozen ice surfaces arises. Some states, for
example Russia or Canada, exercised sovereignty over areas of frozen sea and its
parts using the concept of
the
polar sector principle.
5
The polar sector, however,
cannot be considered a new title for exercising sovereignty, which derives from
such titles as title of discovery, effective occupation or contiguity. According to
Brownlie
6
such acts of the state that express effective occupation are necessary.
The application of the sector principle led to the opposition of other states, for
example, Norway or the USA, which claimed that the Arctic sea is regulated by the
same legal regime as the
open sea.
7
The sector principle is not used by Denmark either.
According to Browlie three arguments against the sector principle’s application in the
Arctic can be raised. The sector principle fails in any doctrine based on contiguity. Its
application is a bit absurd if it establishes a claim to sovereignty over a narrow splinter
stretching to the Pole. It also cannot be applied because of the reason that the sector
may include part of the
open sea.
8
Contributing to other
uncertainties
concerning the territorial claims towards
frozen ice surface there is also the fact that the ice surface becomes smaller as a result
of warming. According to findings of the Arctic Council the temperature in the
Arctic rises twice as quickly
9
as is the global average which leads to melting of the
Arctic glaciers. The extent of unfrozen or not permanently frozen sea increases.
Concerning the application of claims towards
the seabed (ocean floor)
a question
could be raised by the Russian placement, through a mini-submarine, of a flag at
the bottom of the sea on the North Pole on 2 August 2007. Placing of the flag is
just a symbolic act and, as Correll writes, it does not have any legal relevance.
10
3
Jennings, R., Watts, A.,
Oppenheim’s International Law
. 9th edition, Volume 1 Peace, parts 2 to 4.
Oxford: Oxford University Press, 1992, p. 692.
4
For example Waldock, Hackworth, Fitzmaurice, Whiteman in: Brownlie, I.,
Principles of Public
International Law
. 7 th edition. Oxford: Oxford University Press, 2008, p. 144.
5
Brownlie, I.,
op. cit.,
p. 144.
6
Ibid
.
7
Dixon, M,.
Textbook on International Law
. 4th edition. London: Blackstone Press Limited, 2000, p. 161.
8
Brownlie, I.,
op. cit.,
p. 144.
9
Arctic Council finding (2005).
10
Corell, H., Common Concern for the Arctic Conference Arranged by the Nordic Council of Ministers,