Beyond National Jurisdiction: Polar Regions

Polar Regions - Arctic and Antarctic

The polar regions of Earth – the Arctic and Antarctic – are deserts of ice and snow characterized by exceedingly cold temperatures (e.g., - 128.6 F / - 89.2 C) and stark variations in daylight.  Despite being the most inhospitable places on Earth, perfectly adapted flora and fauna inhabit both the land and sea, and, since as early as 325 BCE, humans have explored and learned to survive in such extremes.  The expansion of humans into the polar regions prompted the need to resolve potential conflicting sovereignty claims to the resources.  International legal regimes have been and will continue to be crucial to manage the polar regions, including the areas of the poles that remain beyond national jurisdiction.

The Arctic contains the geographic North Pole and consists of the Arctic Ocean, adjacent seas and parts of eight nations:  Alaska (United States), Northern Canada, Finland, Greenland (Denmark), Iceland, Norway, Russia and Sweden.  The Arctic is partly under the jurisdiction of these eight nations in the Arctic Circle, including six coastal States which, under the United Nations Convention on the Law of the Sea (UNCLOS), have control over natural resources in seabed and the waters out to 200 nautical miles in their respective exclusive economic zones (EEZ).  Several of the Arctic coastal States have presented evidence to the UNCLOS Commission on the Limits of the Continental Shelf to claim exclusive rights to the resources on or below the seabed beyond their EEZs in an extended continental shelf.  Despite conflicting claims to the contrary, as of 2018, no country has established jurisdiction over the North Pole or areas of the Arctic Ocean beyond the coastal States' EEZs. 

Discussions began among Arctic Circle nations in 1989 to formulate a strategy for protection of the fragile Arctic environment. The Arctic Council, formally established in 1996, is a high level intergovernmental forum to promote cooperation among the eight Arctic countries as well as Arctic indigenous communities and other inhabitants on issues of sustainable development and environmental protection of the Arctic.  Among the many challenges to be addressed in the Arctic, climate change is at the top of the list as rising temperatures have, among other things, spurred loss of sea ice, thereby affecting residents' lifestyles and livelihoods, as well as opening shipping routes and access to fisheries and natural resources below the seabed.  The high seas and deep seabed in the Arctic are governed by the UNCLOS.  Three binding treaties have been negotiated under the auspices of the Arctic Council:  the Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic (2011)[i]; the Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic (2013)[ii]; and an agreement in 2017 among nine nations and the European Union to place the central Arctic Ocean – 2.8 million square kilometers – off-limits to commercial fishers for at least 16 years.[iii]

The Antarctic consists of Earth's southernmost continent, Antarctica, surrounded by the Southern Ocean.  Antarctica, the fifth largest continent, is 98 percent covered by ice and hosts the geographic South Pole.  It is Earth's only continent without a native human population.  To defuse potential conflicts over claims to sovereignty to portions of the continent, in 1959 the 12 nations with interests in Antarctica at the time[iv] negotiated and signed the Antarctic Treaty. Rather than divide up the continent into areas of national jurisdiction, the treaty sets up shared sovereignty among the Parties over the continent and reserves the entire continent for peaceful purposes, including scientific investigation and cooperation, which has prompted the establishment of dozens of scientific research stations.  Since 1959, more than 50 countries have become Party to the treaty and several follow-on treaties have been negotiated to protect the Antarctic environment.[v]  As in the Arctic, climate change is causing Antarctic glaciers and sea ice to melt at alarming rates, adversely affecting endemic and other species (e.g., krill, penguins, seals and whales) and posing a threat to coastal communities around the globe due to sea level rise.

iii Hannah Hoag, Nations agree to ban fishing in Arctic Ocean for at least 16 years, Science (Dec. 1, 2017),

iv Argentina, Australia, Belgium, Chile, France, Japan, New Zealand, Norway, South Africa, the Soviet Union, the United Kingdom and the United States.

v See, e.g., Convention for the Conservation of Antarctic Seals (1972); Convention for the Conservation of Antarctic Marine Living Resources (1982); Protocol on Environmental Protection to the Antarctic Treaty (1998).

China's increasing interest in the Arctic raises concerns among regional actors, and its continuous engagement in the region is often viewed with skepticism. On January 26, 2018, the country officially released a White Paper (WP) delineating its Arctic Policy. The document articulates China's official position towards the Arctic, recognizing the sovereignty of the Arctic coastal states, while emphasizing its legitimate rights in the region under international law, such as the freedom of navigation through the Arctic marine areas. It is within this context that this podcast examines the WP from the viewpoint of international law: What are the international legal consequences of this document?

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