The Legal Status of the Arctic Region and Analysis of the Russia-USA Competition Under International Law

Abstract

The Arctic Region, which is one of the politically and legally disputed regions, is not subject to any regulation by international law and a definite sovereignty has not been established over it by the riparian countries. As a result of the global climate change in recent years, the melting of the glaciers in the region and consequently making it more accessible has turned the Arctic region into a competitive arena between important powers. This situation has led to a change in the competitive conditions of Russia and the USA. This study will analyze the legal situation of the Arctic Region and the rivalry of Russia-USA in the Arctic Region and the policies of these two states towards the region from the framework of International Law.

Keywords: Arctic Region, International Law, Russia-US Relations, International Relations, Geopolitics.

Özet

Siyasal ve hukuksal olarak ihtilaflı bölgelerden olan Arktik Bölgesi uluslararası hukuk tarafından bir düzenlemeye tâbi olmadığı gibi kıyıdaş ülkelerce de üzerinde kesin bir egemenlik kurulmuş değildir. Son yıllardaki küresel iklim değişikliğinin bir sonucu olarak bölgedeki buzulların erimesi ve bunun sonucunda daha erişilebilir hale gelmesi Arktik Bölgesi’ni önemli güçler arasında bir rekabet alanına dönüştürmüştür. Bu durum özellikle Rusya ve ABD’nin rekabet koşullarının değişmesine neden olmuştur. Bu çalışma, Arktik Bölgesi’nin hukuki durumunu ve Kuzey Kutbu Bölgesi’ndeki Rusya-ABD rekabetini ve bu iki devletin bölgeye yönelik politikalarını Uluslararası Hukuk çerçevesinde analiz edecektir.

Anahtar Kelimeler: Arktik Bölgesi, Uluslararası Hukuk, Rusya-ABD İlişkileri, Uluslararası İlişkiler, Jeopolitik.

Introduction

As a result of global warming caused by climate change, melting of glaciers in the region and opening of new sea routes, and as a result of finding new energy sources, the importance of the Arctic Region has increased, and the region has turned into a new field of competition between important powers. Such changes in the Arctic Region have allowed new problem areas to emerge with new opportunities, and the Arctic Region has turned into a new area of ​​competition between states. This situation triggered the need to analyze the sovereignty rights of neighboring states within the scope of international law as well as to determine the status of the region. This need has arisen especially from the increasing policies of Russia and the USA towards the region and their competition with each other.

The Arctic Region includes eight states (Russia, United States, Canada, Denmark, Iceland, Norway, Sweden, and Finland), but the Arctic Five, which is directly riparian to the Arctic, is Russia, the United States, Canada, Norway, and Denmark.

1. Legal Status of the Arctic Region

The most important international regulation in solving the problems between the states claiming the Arctic Region and determining the boundaries of the region is the 1982 United Nations Convention on the Law of the Sea (UNCLOS). Decisions to be made by the committees established with UNCLOS are very important in solving this problem on a legitimate basis. The United States signed the convention, but the convention has not yet been ratified by the Senate.

UNCLOS has an important place in solving the legal and political problems of the Arctic Region. Currently, Denmark, Norway, Canada and Russia use UNCLOS to articulate their legal claims on the Arctic Ocean and the seabed. By not being a party to the treaty, the United States lacks the official position in this important initiative to the advantage of other nations. UNCLOS provisions, which enable arrangements to be made especially in the continental shelf, exclusive economic zones, international seabed and open sea areas, offer a number of benefits in order to strengthen the claims of the contracting countries on these issues (Yılmaz & Çiftçi, 2013: 8). According to Article 76 of the 1982 Convention on the Law of the Sea and its annexes, it is possible to expand the continental shelf by fulfilling certain conditions. If the continental shelf of any of the states bordering the Arctic expands, its sovereignty area will also expand (http://www.un.org) (Intext hatası). But for this, it is necessary to determine the continental shelf area. In order to expand the continental shelves in the Arctic, scientific examination of the ocean floor is required (Yılmaz & Çiftçi, 2013: 9).

An important institution in solving the legal and political problems of the Arctic Region is the Arctic Council. The Arctic Council was established in 1996 as an international organization. The Council also includes intergovernmental cooperation between 8 countries. These countries are Russia, Canada and the USA with the Nordic countries (Norway, Sweden, Finland, Denmark, Iceland including Greenland). The primary focus of the Council is the strategy of environmental protection of the Arctic. The working group of the council is also on sustainable development, with a broad focus on marine issues.

2. Arctic and USA-Russia Competition under International Law

One of the important geopolitical conflicts of Russia and the USA is related to the Northern Sea Route. Russia claims that the Northern Sea Route is an inland waterway that forms part of its country. The USA, on the other hand, defends the idea that the Northern Sea Route is an international route. The USA, which wants to reduce the influence of Russia in the region, opposes the pre-notification requirement applied on the route and the obligation to pay fees. On the other hand, the Moscow argues that the Northern Sea Route was historically dominated by the Russians and the route was not used by foreign ships.

In this period when the price of energy resources is increasing, the opportunity to benefit from the resources in the Arctic is of great importance. In this direction, the problem of determining the maritime borders in the Arctic has an important place in the US-Russia rivalry. Under current international law, no state has political sovereignty over the entire Arctic and Arctic Ocean. Russia made its first claim to the Arctic in 2001 when it applied to the UN to expand its exclusive economic zone beyond 200 miles. Russia demands that the continental shelf be expanded and redefined depending on the scientific data it has revealed. However, this request was rejected in 2002 on the grounds that the scientific data to be submitted to the UN were not sufficient (Yıldız & Çelik, 2019: 71).

Russia perceived the UN resolution as an intervention of the USA and doubled its scientific studies. As a result of these scientific studies, Russia has discovered many previously unexplored areas in the Arctic. These steps taken by Russia in the region led to the exacerbation of the discussions on the Arctic. In the same year, the US National Science Foundation published a study on the location of Alaska at the request of Congress. Accordingly, the USA was accepted as an Arctic state and the scientific and political interests of the country in this region were defended (Akpınar, 2017: 90).

The driving force for the USA to intensify its activities in the Arctic is the desire to prevent Russia from being the dominant power in this region. As such, the Russian-American joint projects for the development of the Arctic have failed and the rivalry between Moscow and Washington has come to the fore. In this direction, it has been observed that mutual military initiatives between Russia and the USA have increased. Since the early 2000s, Russia has opened many military bases in the Arctic and installed an early warning radar system for missiles. Since 2015, Russia has started to develop a versatile inspection system network for Arctic. This system will include unmanned aerial vehicles, space and underwater satellites connected by means of transportation and communication. Thus, it will be possible for the Russian armed forces to monitor the developments in the region on land, in the air, above and below the water. The increase of Russia’s military presence in the region is perceived as a threat by Western states, especially the USA. In this context, especially during the Obama era, the efforts of the USA to enter into a strong military structure in the Arctic gained momentum (Yıldız & Çelik, 2019: 67). Washington, which has published many strategic documents on the Arctic since 2009, has initiated studies for the development of new generation ice-breaking ships and military equipment, which are strategically important in the region. At the same time, it has been observed that the USA is trying to strengthen its presence in the region through NATO. With the large-scale military exercises held in the Arctic within the framework of NATO since 2013, Washington tries to both give a message of deterrence to Russia and to make the organization active in the region (Akpınar, 2017: 93).

Russia interpreted the defense cooperation of NATO countries against it as worrying and established another 14 km² military base in the region in 2015. In addition, Russia is known to conduct nuclear weapons tests on islands in the Arctic. In the same year, a drone base was started to be built 600 kilometers from the Alaska border. In 2017, it was announced that 1.090 modern military equipment, including 5 gunboats, 7 logistics ships, 9 aircraft and 10 air defense radar systems, was put into use in Russia’s Northern Fleet, and a new generation icebreaker designed for the Arctic region was added to the Russian navy. Thus, in recent years, Russia has significantly increased its defense capacity on its northern borders by building new military facilities and sending more troops and equipment to the Arctic (Yıldız & Çelik, 2019: 69).

In this direction, the Arctic Doctrine was adopted in the USA in 2016. According to the doctrine in question, the Pentagon will respond to attempts to restrict the passage of American merchant and military vessels through Arctic waters. It is possible to guess that this threat is directed primarily to Moscow, which holds the right to control the Northern Sea Route. The Government Accountability Office reported that the extent of sea ice in the Arctic Region has decreased significantly since 1981, based on the data of the National Snow and Ice Data Center. Noting that this change will increase trade and maritime activities as well as increase tensions in the region in the light of conflicting sovereignty claims, the report emphasized the need for the USA to strengthen its military presence in the Arctic (Yıldız & Çelik, 2019: 67).

As can be seen, the Arctic has recently become the subject of regional, economic and geostrategic interests of a number of states, especially Russia and the USA. In the light of these developments, it is expected that the tension in international relations around the Arctic and the potential for conflict will increase in the coming years.

3. Russia’s Arctic Policy

In order to establish an active policy regarding the Arctic region, Russia had to regain its former power and eliminate domestic policy problems. That’s why Russia’s time to implement Arctic policies has been delayed. In this context, Russia’s realization of its Arctic policies spanned three important time periods between 2008 and 2020. The first of these is 2008-2010, the second is 2011-2015, and the third is 2016-2020 (Akpınar, 2017: 96).

For this, first of all the need for a legal regulation in the seas arose. The Naval Doctrine, which includes the Arctic policy of the Russian Federation, was signed in 2001. Certain parts of this doctrine were revised and a new Maritime Doctrine was signed in 2015, this time valid until 2030. Apart from such regulations, there are also published Strategy 2008-Strategy 2013 documents related to the Arctic. Strategy-2008 was carried out during the Medvedev presidency and in this document a number of tasks were declared, such as designing the Arctic resources, determining the Northern Sea Route as a national integrated transportation line, ensuring the designation of this region as a future strategic resource base, protecting the unique ecological nature of the region. On the other hand, the 2013 document was prepared during the Putin period and focused more on the development and national security of the Arctic region (Akpınar, 2017: 97).

On the other hand, with the melting of the glaciers in the Arctic region, the Northern Sea Route is expected to bring significant economic gain to Russia. This road is important because it is a much shorter route than the routes accepted as a traditional trade route. Making this road functional will undoubtedly strengthen Russia’s hand in both domestic and foreign trade. Russia’s possession of the world’s most powerful Ice Breaker fleet also gives it an advantage in this regard.

Russia has also reopened Soviet-era military bases in the Arctic region and installed an early warning radar system for missiles in this region. Russia’s increasing presence in the region with both offensive and defensive elements has attracted a lot of attention.

Russia has tried to produce various policies regarding the indigenous population living in the northern regions from past to present. According to the regulations, the 1993 Constitution of the Russian Federation guarantees the protection of the fundamental rights, traditional lifestyles, natural habitats of local peoples in accordance with the generally accepted principles and norms of international agreements. Within the framework of this issue, some laws were also enacted in the Federal law in 1999, 2000 and 2001. These laws also have equivalents in international law.

However, the ease of access to natural riches may cause the region to become more manipulable. In the policies to be implemented, an answer to the question of how this nature should be protected is sought first. They must also give a guarantee that their actions in the area are safe. There are a number of provisions for the protection of the marine environment regarding the 12 Chapters of UNCLOS. Russia, like other countries that have signed and ratified the UNCLOS, has the opportunity to act within the framework of the rules of conducting scientific research at seas in Chapter 13, Sections 3 and 4, considering these issues. If Russia is going to carry out certain actions by basing its presence in the Arctic on UNCLOS, it must carry out these practices in a completely harmonious framework with international law, taking into account the principle of goodwill of international law.

4. USA’s Arctic Policy

His interests in the Arctic region of the USA have been mostly on environmental issues and the freedom of passageways for ships. The USA has not had energy discussions over the Arctic region. Although Alaska already has large oil fields along its coastline, it has been observed that 48 states of the USA prefer shale gas and oil fields that can be extracted more easily and cost-effectively. Due to the shale gas reserves, it has been observed that the USA follows different policies on energy and is more insensitive to the issue of energy resources in the Arctic.

The USA has determined its Arctic policy only with the National Security Presidential Directive 66/ Homeland Security Presidential Directive 25 issued on January 9, 2009. Arctic policy was also included in the National Security strategy document in 2010 and 2013. The National Security Implementation Plan in the Arctic Region, published in 2014, and the Executive Order on Increasing Coordination in Arctic Initiatives, published in 2015, form the basis for the legal studies in the region (Akpınar, 2017: 102).

Recently, the United States has made it clear that it wants to put itself at the center of the discussion that will take place in the Arctic Ocean in the future. One of the actual indications of this has been the US sending two nuclear submarines 150 miles north of the Prudhoe Bay area in Alaska. Although it has not ratified the UNCLOS, the fact that it has a claim in this area shows that the USA continues to see its domestic legal resources as a source of International Law. This situation gives rise to security concerns in the region.

In addition, the USA insists on taking other security measures, especially in the American Arctic region. The deployment of 2 new F-35 fighter squadrons at Eielson Air Force Base in 2020 has further increased Alaska’s geostrategic importance. Considering the US military presence in Alaska as an effective combination of air and naval power; It will form the basis for him to gain superiority in this region for years (Akpınar, 2017: 105).

Another issue is the protection of indigenous peoples and their rights. It is noteworthy that the American Congress has variable policies regarding the indigenous peoples living in Alaska. Sometimes it considers these people as an exclusive minority group within the category of Native Americans and judges it to be unstable. Sometimes it is observed that he simply sets out separate legislation dealing with the affairs of Alaska’s indigenous people. While the negative attitude of the USA to the issue of indigenous peoples is known by the whole world, the policies that it will take about the people living in and around Alaska are important. As a result, it is expected that the USA will take serious steps regarding the indigenous peoples living in Alaska.

It can be said that America has recently started to take an interest in the Arctic. In short, the USA is not very interested in the social-human dimension of the Arctic Region, which it sees first as an economic and military security area. The efforts of the USA to enter into a strong military structure in the Arctic stem from the suspicion that Russia has against its increasing presence in this region. In other words, the USA builds its military security policy in the Arctic on the perception of the threat it hears from Russia.

Conclusion

The Arctic Region, which is one of the regions where a definite sovereignty has not been established in the world, has not been regulated by international law and is still subject to the rules of the United Nations Convention on the Law of the Sea dated 1982. The region, whose status has not been clarified with a special treaty, becomes a source of tensions from time to time due to this uncertainty. With the melting of the glaciers, both the emergence of new energy raw materials and the advantages to be obtained in terms of sea transportation have increased the interests of the countries in the region and serious conflicts have arisen about the international status and sovereignty areas of the Arctic. The exploration of Arctic reserves has become a strategic priority for Russia, one of the world’s largest oil and gas exporters. On the other hand, the USA, which sees Russia’s presence in the Arctic as a threat, strives to have a say in the region.

In short, the advantages to be gained in terms of new energy resources and maritime transportation indicate that the region will turn into a new field of struggle. It is observed that the USA, which is a superpower, and Russia, which aims to regain its superpower status, come to the fore. The security concerns of the two countries and the actions that will cause distrust in each other cause the rapid militarization of the Arctic. It is obvious that there is a legal vacuum in the face of the inadequacy of the 1982 UNCLOS. If the current legal vacuum is not resolved by the reconciliation of the countries and reaching a common point, it can be said that there will be larger international conflicts in the Arctic axis in the near future.

Göksenin SARAY

Uluslararası Hukuk Staj Programı

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