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.
