Frozen Assets: Ownership of Arctic Mineral Rights Must Be Resolved to Prevent the Really Cold War

I. INTRODUCTION Forget the Cold War; the really cold war is lurking. The looming debate over the natural resources in the Arctic is primed to explode. The glacial Arctic waters that harbored U.S. and Soviet submarines during the Cold War1 may prove to be battleground again if nothing is done to determine who has jurisdiction over the vast mineral deposits in the Arctic. Allocation of mineral rights in the Arctic is becoming increasingly important as global warming eases access to the area, the global demand for energy continues to rise, and advances in technology make extraction of these minerals possible.2 The harmonization of these three factors, coupled with competing international claims to the Arctic's continental shelf, may yield dispute of epic proportions to conclusively determine which nation, or nations, has the best claim to the untapped natural resources beneath the Arctic seabed. The Arctic region, specifically the North Pole, contains significant oil and gas reserves. Based on recent estimates, this area may contain close to twenty-five percent of the world's undiscovered oil and natural gas resources.3 Given the mineral potential of the area, the time to settle ownership of the Arctic seabed is now. And the countries with competing claims know this. The Russian Federation recently planted flag on the North Pole,4 Canada plans to build an Arctic military force,5 and the other Arctic coastal states-Denmark (through Greenland6), Norway, and the United States-are all seeking to establish an Arctic presence.7 As one commentator noted, the Arctic is a perfect storm seeded with political opportunism, national pride, military muscle flexing, high energy prices and the arcane exigencies of international law.8 Facially, it appears that the United Nations Convention on the Law of the Sea (UNCLOS), comprehensive international maritime treaty establishing rights, responsibilities, and procedures for settling claims in the world's oceans and seas, should be the proper mechanism to determine jurisdiction in the Artic.9 UNCLOS, however, is not viable option because not all of the interested parties have ratified the treaty and the UNCLOS component that recommends limits of the continental shelf has not achieved the status of customary international law.10 While the United Nations should take steps to address these shortfalls, it is highly unlikely that any amendment to the present regime will be proposed and accepted before anarchy on the high Arctic seas ensues. UNCLOS, therefore, is not the answer. This Note analyzes the present issue in five parts. First, it examines the history of competing discovery and ownership claims to the North Pole and the surrounding area. Second, it assesses the current mineral and environmental situation in the Arctic. Third, it reviews the traditional mechanisms that are typically employed to settle maritime and seabed delimitations. Fourth, it examines pending submissions to commissions created under UNCLOS in which interested countries seek to gain jurisdiction of disputed areas of the Arctic continental shelf. And, fifth, it analyzes the viability of UNCLOS to settle the Arctic boundary and resource disputes. The role of UNCLOS in settling the mineral situation in the Arctic is far from certain, and this Note highlights the characteristics that make it ill-suited to address the problem. In its place, this Note proposes an alternative method to allocate jurisdiction of the continental shelf. This proposal seeks to create new Arctic regime by combining elements from the International Court of Justice (ICJ), the mineral resource provisions in the Antarctic Treaty System (ATS), and the common heritage of mankind principles11. Unlike these systems, this new regime must be narrowly tailored in manner that encourages all Arctic coastal states to agree to abide by the terms of the treaty. The ultimate goal of this regime is to allocate once unattainable resources in fair and effective manner. …

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