Arctic Diplomacy

20 december 2009

© "Russia in Global Affairs". № 4, October - December 2009

History Lessons for Settling Disputes on Litigious Territories

Alexander Oreshenkov is an expert in the international legal aspects of Arctic issues. He holds a Doctorate in Law.

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Arctic Diplomacy
An analysis of the historical and legal aspects of the current sovereign jurisdiction of land surface areas that serve as points of departure in measuring the boundaries of exclusive economic zones and the continental shelf beyond them may have significance for the delimitation of maritime areas between Russia and its Arctic neighbors.
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Resume: An analysis of the historical and legal aspects of the current sovereign jurisdiction of land surface areas that serve as points of departure in measuring the boundaries of exclusive economic zones and the continental shelf beyond them may have significance for the delimitation of maritime areas between Russia and its Arctic neighbors.

Countries in the Arctic region are about to start dividing the Arctic shelf areas. Problems pertaining to the international legal status of territories in the Arctic have not sprung up out of nothing. In the 19th and 20th centuries, the Russian Empire and the Soviet Union had an opportunity to reaffirm or establish their jurisdiction over a much larger part of the Arctic littoral land, and yet they lost Alaska, the Svalbard islands, and the so-called “common region” between Russia and Norway.

An analysis of the historical and legal aspects of the current sovereign jurisdiction over land surface territories that serve as points of departure in measuring the limits of exclusive economic zones and the continental shelf beyond them may have significance for the delimitation of maritime areas between Russia and its Arctic neighbors. For Russia, the Crimean War of 1853-1856 was the starting point for the loss of the bulk of the named regions.

HOW ALASKA DRIFTED AWAY FROM RUSSIA

Before the sale of Alaska to the U.S. in 1867, the Russian-American Company, not the Russian government, was owner of land in North America. The Russian-American Company, owned by Russian nationals, was set up by Emperor Paul I in 1799. The tsarist administration did not pass any formal acts to include in the Russian Empire the territories that belonged to the Russian-American Company. This type of ownership was quite common in the 18th and 19th centuries – examples are the East India Company and the Hudson’s Bay Company. Still, the law of the time considered such regions as being under the sovereignty of the countries whose companies occupied the relevant part of the land surface.

Before the sale of Alaska to the U.S., the number of Russians living there fluctuated between 600 and 800. This was not enough to defend the peninsula even against a small enemy fleet, given the peninsula’s area of 1.5 million square kilometers. For the sake of comparison, let us recall that the Aland Islands, a small archipelago in the Baltic Sea between Finland and Sweden, was defended by a 2,000-strong Russian garrison during the Crimean War. It was outmatched at Bomarsund by a Franco-British task force of 10,000, which drew on support from a Franco-British naval squadron.

The Crimean War depleted the Russian treasury and exposed the vulnerability of Russia’s Far Eastern and American possessions to British naval attacks. Alaska might have become easy prey for either Britain or the U.S. At the time, the Russian leadership viewed Russia much more as a continental than a maritime power and it believed that strengthening the country’s positions in the Far East was a priority task. The potential risk of Alaska’s seizure by the rapidly-developing United States became the main official argument in favor of selling Alaska.

Count Nikolai Muravyov-Amursky was the first Russian official to propose, even before the Crimean War, selling Alaska and using the money from the sale to consolidate Russia’s positions in the Far East. Grand Duke Konstantin, the 30-year-old brother of Emperor Alexander II who had returned to Russia in 1857 from a vacation in southern France, strongly supported this idea right after the war.

The issue was studied for several years until December 16, 1866, when a decision on the transaction was taken in strict secrecy at a conference that Alexander II held in the Foreign Ministry. The list of participants included Grand Duke Konstantin; Foreign Minister Prince Alexander Gorchakov; Finance Minister Count Mikhail Reutern; Naval Minister Nikolai Krabbe; and Russia’s minister to the United States, Eduard de Stoeckl. The arguments cited in favor of selling Alaska were: to prevent the loss of Alaska through British or American aggression; to rule out future territorial conflicts with the U.S. given the absence of a practical opportunity to defend the possessions; and to bring in at least some money for developing the Russian Far East. The last, but not least, argument was the importance of normal and even friendly relations with the U.S. that might be a counterweight to Britain in that part of the Pacific Ocean.

In establishing Alaska’s selling price, the issue of potential economic benefits from possessing the peninsula was substituted with calculations of financial gains from the operation of the Russian-American Company. The most part of Alaska was still unexplored in terms of natural resources, and that is why the selling price was based on the small dividends that the company’s shareholders received rather than on the resource potential of that part of the Russian Empire.

As a result, the U.S. paid Russia $7.2 million for Alaska, or less than $5 per square kilometer of the peninsula’s mainland. Compare this to the $15 million that the U.S. had paid shortly before to Denmark for the St. Thomas and St. John Islands, which have an approximate total area of just 200 square kilometers.

The greater part of the revenue was meant to replenish Russia’s state treasury. The Russian-American Company was entitled to about $1 million and Minister de Stoeckl received $165,000 for “undeclared expenses,” including bribes. De Stoeckl spent the money entirely at his own discretion. Incidentally, only the latter portion of the revenue was spent appropriately. As for the first two lump sums, they never reached the designated addressees.

Russian sources differ as to the plight of that money. Some of them indicate that the money is still somewhere on the American continent, but others suggest it was loaded in gold bullion onto the ship The Orkney, which sank in the Baltic Sea after an abortive hijacking by a group of conspirators. One more version suggests that people close to Grand Duke Konstantin used the money to purchase equipment for building private Kursk-Kiev, Ryazan-Kozlov and Moscow-Ryazan railways. Other objectives put forth at the meeting where Alaska’s fate was decided – the consolidation of positions in the Far East and the development of friendly relations with America – remained unachieved as well.

HOW SPITSBERGEN “SAILED AWAY”

Russia had lost opportunities to expand its land possessions in the Arctic part of continental Europe even before the Crimean War. I am referring to the part of Scandinavia and the Kola Peninsula located between Russia and Norway, populated by the Sami people. At various times starting from the ninth century, the Sami people of this region paid tribute to the Norwegians, Swedes, Finns, Karelians and Russians. Gradually, this “common region” (as the Norwegians called it) of multiple tributes shrank to dual tributes and came under the territorial supremacy of Russia and Norway.

The Convention on the Borders Between Russia and Norway in Lapland, which the Russian Empire and the Swedish-Norwegian Union signed in 1826, put an end to the centuries-old division of the region. On the Russian side, Lieutenant Colonel Valerian Galyamin chaired the demarcation commission. Although a part of the litigious area was to be incorporated into Russia’s Archangelsk Province, its representatives were not invited to join in the commission’s work, which resulted in Russia losing this land. Practically all the “common region” fell under the sovereignty of the Swedish-Norwegian Union.

Galyamin’s brief biography on the website of the Decembrists’ Museum says that “he received [from the King of Sweden] 2,000 rubles, the Order of the Sword and a diamond-strewn snuffbox for the perfect execution of these instructions.” Archangelsk Province officials were not satisfied with the results of the land dealings and insisted on its revision, but a Russian attempt to revise the convention in 1830 was not successful, prompting the Swedes to sign an agreement with Britain and France during the Crimean War that guaranteed for the kingdom the preservation of its borders in the North as stipulated by the convention’s provisions.

Svalbard is an archipelago in the Arctic Ocean that covers over 61,000 square kilometers. In the 17th and 18th centuries, Russian Pomors, settlers from the White Sea coast, frequently stayed on Grumant, as they called the archipelago. Vasily Lomonosov, the father of the renowned Russian scientist Mikhail Lomonosov, made five voyages there. The number of Russians on simultaneous wintertime sojourns to Svalbard would reach 200 or more, thus testifying to the effective occupation of the archipelago. According to the Ukrainian scientist Leonid Timchenko, this fact made it possible for Russia to claim sovereignty over the archipelago. The Pomor villages were devastated by a British-French naval squadron during the Crimean War and the Pomors never returned to the archipelago after that.

Sweden made a perfect ploy of this, as it proposed in the early 1870s to impart sovereignty over Svalbard to Norway. Although a number of Western powers treated the proposal favorably, Russia objected to it and proposed, on its part, declaring the archipelago “terra nullius,” that is, a no-nation’s land. Norway resumed attempts to bring Svalbard under its sovereignty after gaining its independence from Sweden in 1905. Russia was the first to recognize an independent Norway, but it did not support its aspirations regarding Svalbard.

A total of three conferences were held from 1910-1914 in Kristiania (the official name of Oslo from 1624-1924 – Ed.) on designing a Convention for Svalbard and on giving the latter the status “of a territory of common use exempt from the sphere of state sovereignty.” The convention would also specify an international legal regime for the archipelago. However, World War I frustrated the completion of the process.

The issue of Svalbard’s status was finally resolved at the Paris Peace Conference. In spite of objections from a number of countries that had numerous reasons to believe that Norway’s territorial acquisition of the archipelago had nothing to do with the results of World War I, a treaty recognizing the sovereignty of the Norwegian Kingdom over it (the Spitsbergen Treaty) was signed on February 9, 1920. Russia was not present at the signing.

Under the treaty, the signatory countries agreed to recognize Norway’s sovereignty over the islands on certain conditions. The toughest ones requiring the development of a supplementary international gentlemen’s agreement on the Mining Code for Spitsbergen were introduced in the text at the urging of Great Britain. The current text of the treaty contains them in the original form, although the Norwegian Justice Ministry considers them to be incompatible with the dignity of a sovereign country. As a result of Britain’s proposals, the key issues of Svalbard’s regime ended up in the hands of two English “law officers of the Crown” who resolved these issues – for unknown reasons – in favor of Norway rather than English companies.

The young Soviet Russian state desperately needed international recognition after the end of its Civil War (1918-1921). Britain recognized the Soviet Union on February 1, 1924 and Italy followed on February 7. It was also at this time that the Soviet Plenipotentiary Representative Alexandra Kollontai demanded that Norway recognize the Soviet government in exchange for recognition of Norway’s sovereignty over Svalbard.

Norway recognized the Soviet Union de jure on February 15, 1924. Kollontai handed the Norwegian authorities a note on February 16 that stated: “The Soviet government recognizes Norway’s sovereignty over the archipelago of Spitsbergen, including Bear Island, and in connection with this it will not raise any objections in the future over the Spitsbergen Treaty of February 9, 1920 and the Mining Code appended with it.”

Article 8 of the treaty envisioned sending out draft mining regulations to the signatory countries before they took legal effect, but after the treaty came into force. If at least one of the signatories raised objections to the regulations, Norway would be obliged to convene an international conference to refine the text and approve the document. Although the signatories did make objections, the Norwegian government did not call a conference. Norway settled the dispute on a bilateral basis instead and enacted the Mining Code as a piece of national legislation on August 14, 1925 (simultaneously with the Spitsbergen Treaty) and not as an international accord.

In this connection, the legal foundations of the Soviet government’s note regarding the Mining Code has remained an open question for more than 80 years. Why, in fact, did it make a pledge to refrain from making objections against the Code, which was not fully drafted, let alone endorsed, at the time, and why did it overlook the duplicity of that document’s juridical status (a national legislative act or an international agreement)?

Article 10 of the Spitsbergen Treaty envisioned the possibility that the Soviet Union would join the Treaty after all the signatory countries had recognized the Soviet government. The U.S. was the last country to extend its official recognition, and the Soviet Union undersigned the Spitsbergen Treaty on February 27, 1935. An analysis of the terminology of its official translation into Russian induces the conclusion that some of its key provisions were mistranslated, which complicates the understanding of legislative realities pertaining to the activity of foreign parties on the archipelago.

There is no qualified translation of the Mining Code into Russian to date. The lack of a translation does not allow practical workers to build a proper line in relations with the Norwegian administration of the archipelago so as to take account of all the specific traits of Svalbard’s regime. Questions about the legal character of the Mining Code also remain unanswered.

The foreign policy committee of the Storting, or the Norwegian parliament, found it necessary to issue an explanation in 2001 that the Mining Code is an act of Norway’s national legislation and not an international accord. This provides one more piece of testimony to the absence of legal transparency in Norwegian legislation stipulating the legal regime for Svalbard, as well as the maritime and shelf zones generated around the archipelago whose area totals about a million square kilometers.

HOW THE BORDERS WERE DRAWN

Russia’s continental shelf covers an area of 6.2 million square kilometers, of which about four million square kilometers conceal potential oil and gas riches. If the UN Commission on the Limits of the Continental Shelf grants Russia’s request to extend its continental shelf, the latter will expand by another 1.2 million square kilometers. If an international legislative foundation existed for the affirmation of Arctic countries’ sovereign rights to regions within the Arctic sectors, the shelf areas under Russia’s control would grow by another 0.5 million square kilometers. In this case, the history of establishing limits for polar sectors and using them for delimitation of areas in the Arctic Ocean is of definite interest.

Durham University researchers have compiled a map showing lines that were established in the Arctic area back in the 19th century and that are still taken account of in the process of delimitations. For instance, the delimitation line between Russian Alaska and the British Dominion of Canada was determined on the basis of an Anglo-Russian convention signed on February 16, 1825 (or February 28 according to the Gregorian calendar). Article 3 of the Convention says the line delineating the Russian and British possessions in the Arctic Ocean stretched from the Beaufort Sea along the 141st meridian northwards “as far as the Frozen Ocean.” The U.S. and Canada refined the delimitation of their mainland territories by signing conventions in 1903 and 1906, in which the above-said line was not corrected.

The same line of delimitation is mentioned in Article 1 of the March 18 (30), 1867 Russo-American Treaty concerning the Cession of Russian Possessions in North America to the United States. The article specified the line of delimitation of Russian and American possessions in the Arctic that stretched from the Bering Strait to the North Pole.

Article 2 of the June 1, 1990 U.S.-Soviet Maritime Boundary Agreement specifies: “From the initial point, 65° 30' N., 168° 58' 37" W., the maritime boundary extends north along the 168° 58' 37" W. meridian through the Bering Strait and Chukchi Sea into the Arctic Ocean as far as permitted under international law.”

This means that the delimitation lines between the U.S. and neighboring nations were established at the international legislative level back in the 19th century thanks to Russia. This may be part of the explanation for why the U.S. did not find it necessary to pass national legislative acts that would define the status of areas within the U.S. Arctic sector, although officials might raise the problem occasionally.

Another reason for this is to be found in the regimen of the maritime zone within the U.S. Arctic sector. Russia played a definite role in the resolution of that problem too. In 1821, an Imperial decree was issued on imposing a Russian 100-mile nature conservation zone in the Bering Sea and prohibiting sea-hunting by foreign ships. The decree was subjected to a meticulous examination by an arbitration tribunal on August 15, 1893 with regard to seal hunting in the area. The tribunal’s rulings set a precedent for future approaches towards the delimitation lines drawn up in the 19th century. The arbitrators’ decision implied that the Russian-U.S. treaty of 1867 applied to land surface areas only.

The limits of the Russian and Canadian Arctic sectors were established in the 19th century and only on one side. In 1926, the Soviet Union and Canada passed national legislative acts finalizing the status of land areas within their national sectors and, correspondingly, their western and eastern limits. A rectangular depression stemming from the geographic coordinates featured in the Spitsbergen Treaty emerged on the western limit of the Russian Arctic sector.

The Spitsbergen Treaty is based on the drafts of a convention which Norway, Russia and Sweden drew up before World War I. Article 1 of a draft convention proposed by Russia in 1910 at a conference in Kristiania spoke of the islands between 10°/35° E. and between 74°/81° N. The Paris Conference mechanically transferred the Russian proposals to the text of the treaty and the Soviet government replicated them later in its decisions.

The Russian draft convention contained a proposal to extend the environmental conservation measures developed for the territory of the archipelago to the sea areas surrounding it. However, it was not supported by other countries, as it ran counter to the common international practices of the time, so it was not featured in the final draft.

After World War II, the international community realized the importance of the international legal settlement of issues related to littoral countries’ rights to the sea areas adjoining their shores, and this realization was reflected in the 1958 Geneva Conventions on the Law of the Sea. However, neither in the Geneva Conventions, nor in the 1982 UN Convention on the Law of the Sea provided a sufficient international legal basis for dividing the Arctic Ocean, which is covered by ice but not by water, into arctic sectors. The rapid thawing of the Arctic icecap may push the issue of their regime off the international agenda altogether.

The U.S., which has not joined the UN Convention on the Law of the Sea to date, now has the most advantageous position (including within the limits of its Arctic sector) among the Arctic countries from the point of view of freedom of maneuvering as regards access to the shelf areas. When it comes to delimitating the areas in the Beaufort Sea with Canada, Washington insists on applying the median line principle, while the Canadians insist on abiding by the line featured in the 1825 Anglo-Russian convention.

At the same time, when the maritime border with Russia in the Bering Sea is concerned, the U.S. finds it more advantageous to apply the delimitation line stipulated in the March 1867 convention. The median line will be more appropriate for Russia there. The latest research shows that the median line principle might also be quite advantageous for Russia if applied to delimitation with the U.S. in the Arctic Ocean. This controversy explains why the U.S. Congress quickly ratified the June 1, 1990 U.S.-Soviet Maritime Boundary Agreement (the so-called Baker-Shevardnadze line), while Russian MPs have not done so to date.

Russian experts on the Arctic, few as they are, think that Russia lost rather than gained from the signing of the 1990 agreement. Political scientists believe the agreement was underpinned by the Soviet government’s willingness to consolidate relations with the U.S., while experts specializing in international legislative regulations for the Arctic Ocean say Moscow thus sought to exert influence on the progress of talks on the division of maritime areas with Norway. Neither hope came true, however.

The Norwegian government firmly espouses the median line principle in its approach to the delimitation of maritime areas with neighboring states. For instance, this purely mathematical approach, coupled with a more beneficial geographic position, gives the Norwegians an advantage. Norway’s Varanger Peninsula, which serves as the starting point for the delimitation line, “moves” this very line into the Russian sector. Moscow argues that the delimitation line should be drawn according to the principle of equity, taking due notice of the existing special circumstances and the use for this purpose of the western limit of Soviet Arctic possessions as stipulated by the April 15, 1926 resolution of the USSR Central Executive Committee’s Presidium.

The same principle should be used in the zone covered by the Spitsbergen Treaty where Norway pledged to provide an equitable regime, which imply equal rights to engage in trade and research for Norwegian nationals and for private individuals and companies from foreign signatory countries likewise. At the same time, taxes levied there should be used for the archipelago’s needs instead of replenishing the Norwegian budget. To bypass these “awkward” provisions, the Norwegian government uses specific legal techniques. As a result, an international agreement and national acts derived from the Spitsbergen Treaty and regulating relations in the Svalbard zone do not have the necessary legal transparency.

The signatories to the Spitsbergen Treaty recognized Norway’s sovereignty only over the land surface territory of Svalbard and Bear Island and, as specified in Article 8 therein, the application of the Mining Code is limited to these areas as well. Still, back at the beginning of the 1960s, long before the establishment of the territorial sea boundaries around Svalbard (1970), Norway took a unilateral step to spread the legal embrace of the Mining Code to the islands’ geological shelf. Officials claim that the shelf legislation effective for the country’s continental part was applied to Svalbard as of 1963. Meanwhile, none of the signatory countries has taken notice of the unilateral change of the sphere of legal effectuation of the Code, while the Norwegians should have obtained their consent to it.

Norwegian legislators thought the above-said specific extension of the Spitsbergen Treaty’s territorial application to the territorial sea around the islands was sufficient. As they drafted the 1985 petroleum law, which established Norway’s jurisdiction over its shelf, they excluded Svalbard’s land territory and the geological shelf within the boundaries of its territorial sea from the spatial sphere of application of this law. By doing this, Norwegian MPs evaded the commonly accepted procedure for extending the jurisdiction of a littoral state to the adjoining maritime areas, substituting it with claims that the Spitsbergen Treaty’s application is limited only to the territory of the archipelago. However, when the Paris Treaty was signed in 1920, there were no international legal norms yet that would allow the littoral countries to exercise their sovereign rights beyond the boundaries of territorial waters.

Britain’s Foreign Office made an attempt in June 2006 to clean up this political mess. It brought together foreign ministry experts of the Spitsbergen Treaty signatory nations (minus Norway), but the meeting did not produce any results.

The UN Commission on the Limits of the Continental Shelf in 2009 unanimously endorsed recommendations on establishing the outer limits of Norway’s shelf. It did not consider the regime of shelf areas around Svalbard, however. Following the Norwegian motion to file an application with the UN Commission in 2006, Russia made a special declaration to the UN Secretary General stating that Norway’s actions should not damage issues related to the delimitation of the continental shelf between Russia and Norway, while the Commission’s recommendations should not contradict the 1920 Paris Treaty and the regime of the maritime areas adjoining the archipelago.

Official press releases on annual Russian-Norwegian talks on the delimitation of areas in the Barents Sea and the Arctic Ocean only provide scant information. Furthermore, Russian and Norwegian leaders have spoken publicly about the possibility of different approaches to delimitation. The Norwegians have factored contemporary norms of the Law of the Sea into their position on how to draw delimitation line in the contiguous area of the Barents Sea between Russia and Norway. They meticulously seek to avoid a concurrence of historical, political and economic aspects of the problem. As for Russia, the feeling of historical equity prompts it to shelve recollections of plans to change Svalbard’s status which the Soviet Union harbored at the end of World War II (the plans suggested that the archipelago’s main part, including the island of Spitsbergen, should be governed jointly by Norway and the Soviet Union as a condominium, while Bear Island should go over to Soviet jurisdiction). Moscow also wanted to establish its sovereignty over a territory stretching to the Norwegian river Tana so as to rectify provisions of the 1826 convention that the Soviet Union found cumbersome.

The Norwegians were the first to take practical steps towards combining the economic, political and legal aspects of bilateral relations linked to Svalbard and Barents Sea hydrocarbon resources in a key advantageous to themselves. On the day that Norway’s StatoilHydro corporation joined a consortium for developing the Shtokman offshore gas condensate deposit in 2007, Norwegian petroleum authorities invited bids for blocks in the zone covered by the Spitsbergen Treaty. Gazprom retaliated with a refusal to include the Norwegians, previously viewed as the favorites, in the list of Shtokman developers, and the problem of who would supply services and products hung in midair. The Russian reaction triggered doubts inside StatoilHydro about the rationality of its participation in the project, but they were quietly suppressed by an order from the political level.

THE BENEFITS OF INTERNATIONAL LAWSUITS

Russia may follow the U.S. example in defending its interests in the East and West. The Americans use variegated principles for delimitating areas with their Arctic neighbors. Also, it might make sense to turn to international courts. But before turning to them for assistance in the West, it is important to get a clear understanding of the doctrinal essence of the Spitsbergen Treaty and a wide scope of other, unexplored issues linked to it.

Russian companies have a purely practical interest in this. If the delimitation line crosses a deposit located on the Russian shelf and on the shelf embraced by the Spitsbergen Treaty, the developing companies will have to pay part of the taxes to the Russian government, while another part (amounting to one percent of the cost of the hydrocarbons produced) will be paid to meet Svalbard’s needs.

In addition to the negotiations that have been going on since the Soviet era, a transfer of litigious problems to international courts would reaffirm once again Russia’s commitment to the use of international legal norms for resolving problems around disputed Arctic areas. The importance of this approach is featured, for instance, in the decisions of a conference of foreign ministers of five Arctic states who met in Greenland in May 2008.

Importantly, it is not necessarily the UN International Court of Justice in the Hague that should resolve issues related to maritime areas around Svalbard. The signatory countries are debating the geographic limits to which the treaty should apply, but they disregard private individuals and companies, whose rights Norway encroaches on by its unilateral actions.

The countries that signed the Spitsbergen Treaty agreed to recognize Norway’s sovereignty over the islands, and Norway agreed to accept it on condition that it would create a favorable treatment for nationals of the signatory states. If the Norwegians do not observe this stipulation, then they violate the rights of private individuals and corporations, and violations of this kind are examined by international arbitration courts, rather than the International Court of Justice which considers only interstate legal disputes.

Courtroom settlement of disputes with neighboring states over litigious areas and over the regime of the areas around Svalbard is a game worth playing for Russia, since the disputed Arctic shelf areas encompass more than 200,000 square kilometers and hypothetically contain more than two percent of global oil and gas reserves. The skillfulness of military commanders would have predestined the fate of such territories in wars of the past, but now it is experts in international law, politicians and diplomats who must play first fiddle in the process of the delimitation of Arctic shelf areas by Russia and its neighbors. Canada and Denmark can be our natural allies in these efforts. 

Last updated 20 december 2009, 16:01

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