Peer-reviewed article

Arctic Review on Law and Politics
Vol. 13, 2022, pp. 219–231

Canada and the Russian Federation: Maritime Boundaries and Jurisdiction in the Arctic Ocean

Viatcheslav Gavrilov

School of Law, Far Eastern Federal University, Russian Federation

Ted L. McDorman*

Faculty of Law, University of Victoria, Canada

Clive Schofield

WMU-Sasakawa Global Ocean Institute, World Maritime University, Sweden

Abstract

The Arctic region has been the focus of considerable attention in recent years, often concerned with maritime claims and an alleged race for the region’s resources. Against this narrative, the article focuses on the practices of Canada and the Russian Federation with respect to their maritime jurisdictional claims and the delimitation of maritime boundaries with their Arctic neighbours. The article provides an overview of the Arctic region and the international law of the sea with an emphasis on the baselines and maritime claims of the Arctic coastal states. Discussion then turns to the maritime boundary agreements that have been concluded in the Arctic region before overlapping claims to areas of continental shelf underlying the central part of the Arctic Ocean are appraised. The article concludes that Canada and the Russian Federation have enjoyed considerable success in resolving overlapping maritime claims and their pragmatic and innovative approaches coupled with existing regional cooperation bode well for finding peaceful solutions to Arctic Ocean governance challenges in the future.

Keywords: Arctic Ocean, law of the sea, ocean governance, maritime delimitation, continental shelf, overlapping claims

Responsible Editor: Susan J. Rolston, Marine & Environmental Law Institute, Schulich School of Law, Dalhousie University, Canada

Received: May 2021; Accepted: February 2022; Published: June 2022

*Correspondence to: Ted L. McDorman, e-mail: tlmcdorm@uvic.ca

© 2022 Viatcheslav Gavrilov, Ted L. McDorman & Clive Schofield. This is an Open Access article distributed under the terms of the Creative Commons CC-BY 4.0 License. eISSN 2387-4562. https://arcticreview.no.

Citation: Viatcheslav Gavrilov, Ted L. McDorman & Clive Schofield. “Canada and the Russian Federation: Maritime Boundaries and Jurisdiction in the Arctic Ocean” Arctic Review on Law and Politics, Vol. 13, 2022, pp. 219–231. http://dx.doi.org/10.23865/arctic.v13.3233

1 Introduction

Over the last decade and a half, the Arctic Ocean has been a focus of global attention. Much of this attention has focused on disputes over competing maritime jurisdictional claims, maritime boundaries and the so-called “race for resources.” Such narratives are to a substantial extent a consequence of the Arctic region proving to be at the front line of climate change, warming at more than double the global average.¹ This has resulted in dramatic melting and decreases in Arctic Ocean sea ice cover, thus increasing access to and through Arctic waters.² Contrary to much of this discourse, we argue that the Arctic Ocean is not unlike the rest of the global ocean with respect to maritime jurisdictional issues and has been the scene of substantially more scientific cooperation than interstate conflict. Moreover, the Arctic Ocean is clearly subject to the international law of the sea. That is certainly the view of the five central Arctic Ocean states, Canada, Denmark (Greenland), Norway, the Russian Federation, and the United States, who in 2008 issued the Ilulissat Declaration, which states:

[T]he law of the sea provides for important rights and obligations concerning the delineation of the outer limits of the continental shelf, the protection of the marine environment, including ice-covered areas, freedom of navigation, marine scientific research, and other uses of the sea. We remain committed to this legal framework and to the orderly settlement of any possible overlapping claims. This framework provides a solid foundation for responsible management by the five coastal States and other users of this Ocean through national implementation and application of relevant provisions. We therefore see no need to develop a new comprehensive international legal regime to govern the Arctic Ocean.³

The focus of this article is on the practices of Canada and the Russian Federation regarding the assertion of jurisdiction in the Arctic Ocean, as well as the practices of the two states in dealing with overlapping maritime boundaries with its Arctic neighbours. The latter is of particular interest since, as of May 2019, it is clear that Canada and the Russian Federation have overlapping ocean jurisdictional claims to areas of continental shelf beyond 200 nautical miles in the Arctic Ocean.

2 The Arctic and the international law of the sea

Little direct attention was given to the Arctic Ocean in the negotiation of the 1982 United Nations Convention on the Law of the Sea (LOSC),⁴ which sets out the framework for coastal state offshore jurisdiction, such as the 12 nautical mile territorial sea, the 200 nautical mile exclusive economic zone (EEZ) and the continental shelf beyond 200 nautical miles. The one clear exception is Article 234, which was carefully negotiated between Canada, the United States and Union of Soviet Socialist Republics (USSR). This article provides to Arctic coastal states the right “to adopt and enforce non-discriminatory laws and regulations for the prevention, reduction and control of marine pollution from vessels in ice-covered areas within the limits of the exclusive economic zone.”⁵

Based on the LOSC, Canada and the Russian Federation have established 12 nautical mile territorial seas and 200 nautical mile EEZs in Arctic waters. Canada has a 200 nautical mile Arctic Pollution Prevention Zone based on rights asserted by Canada pursuant to Article 234 of the LOSC. Similar legal grounds are used by Russia to justify its right to control navigation in the Northern Sea Route adjacent to its Arctic coast.⁶ It is worth noting that the 200 nautical mile zones established by Canada and the Russian Federation in the central Arctic Ocean are not based on the so-called sector theory (straight lines that extend from the landmass converging at the North Pole) historically associated with these two states.⁷

The seaward delineation of the limits of the territorial sea and 200 nautical mile zones are determined by baselines. In the case of Canada, the baselines in the Arctic, enclosing the Canadian Arctic archipelago, define the seaward extent of Canada’s claimed historic internal waters, which includes the Northwest Passage.⁸ In the case of the Russian Federation, the main point of contention concerning the Arctic baselines relates to their potential impacts on navigation as they enclose waterways claimed by Russia as being historic waters (e.g., the Dmitry, Laptev and Sannikov Straits). The United States has officially protested the Arctic baselines and the historic water claims of both Canada and the Russian Federation, taking the view that the Northwest Passage and the Russian straits are “straits used for international navigation” and, therefore, open to vessel traffic without interference from the adjacent state.⁹

Where the geology and geomorphology allows, coastal states also have under their exclusive jurisdiction the mineral resources and sedentary species in the areas of the continental margin beyond and adjacent to their 200 nautical mile zones.¹⁰ The shelf areas are subject to the exclusive jurisdiction of the adjacent state regardless of whether that state has expressly proclaimed or asserted authority over the area.¹¹ As regards the precise spatial extent of such continental shelf rights beyond 200 nautical miles, the LOSC obliges a state to delineate its proposed outer continental shelf limits based on the complex criteria set out in Article 76 and to submit information on its proposed outer limit of the shelf beyond 200 nautical miles to the Commission on the Limits of the Continental Shelf (Commission). The Commission, composed of scientific and technical specialists, reviews the submitted information and provides recommendations on the proposed outer limits to the submitting state.¹²

It is important to note that submissions by states to the Commission and the work of the Commission is “without prejudice” to bilateral maritime boundary delimitation of the continental shelf between states with opposite or adjacent coasts.¹³ Pursuant to the Rules of Procedure of the Commission, where a submission involves an area in dispute with another state, the disputing state must consent to the Commission considering the submission.¹⁴

The Commission does not have the legal authority to determine or impose its views respecting the location of the outer limit of the continental shelf of a coastal state. It is the coastal state, and not the Commission, that establishes the outer limit of its continental shelf beyond 200 nautical miles. As stated in the 2012 Bay of Bengal case, “the limits of the continental shelf beyond 200 [nautical miles] can be established only by the coastal State.”¹⁵ This pronouncement is consistent with the reality that the determination and delineation of the outer limit to the continental shelf is a political act of a coastal state. Nevertheless, the outer limit recommendations of the Commission, in particular for the Arctic coastal states, will validate the extent of the legal shelf beyond 200 nautical miles in the central Arctic Ocean. Moreover, it can be observed that the outer limits to the continental shelf seawards of 200 nautical miles from baselines that have been delineated following receipt of recommendations from the CLCS have been consistent with the Commission’s findings. Thus, while legally it is clear that the Commission does not delineate these outer continental shelf limits, there is little doubt that its recommendations are highly influential in helping to determine their final location in practice.

In 2001, the Russian Federation was the first state to make a submission to the Commission.¹⁶ The submission included proposed outer limits of the continental shelf beyond 200 nautical miles in the central Arctic Ocean. The Commission recommended that the Russian Federation make a resubmission providing additional scientific data to supplement what was in the 2001 submission. Russia made its resubmission in 2015, which refined and adjusted the outer limits that had been indicated in the earlier submission.¹⁷ According to the later submission, the area of continental shelf beyond 200 nautical miles in the Arctic Ocean covers almost 1,200,000 square kilometres, that is, approximately 100,000 square kilometres more than in Russia’s 2001 submission.¹⁸

In December 2014, Denmark delivered to the Commission a submission on establishment of outer limits of the northern continental shelf of Greenland. In May 2019, Canada submitted to the Commission its proposed outer limits of the continental shelf in the Arctic. On 31 March 2021, Russia filed two addenda to the 2015 submission, which added a further 205,000 square nautical miles.¹⁹ As a result of these amendments, the revised Russian continental shelf limits extended up to the outer limits of the Canadian and Danish continental shelves.²⁰

The United States, a non-party to the LOS Convention and, therefore, not obligated to make a submission to the Commission, indicated in a 1987 statement that it intended to use paragraphs 1 to 7 of Article 76 to delineate its outer limit, which it said reflected the applicable customary international law. Further, it indicated that it would deposit charts with the United Nations Secretary-General to put other states on notice of the spatial extent of its rights.²¹ Thus, the United States can be expected to make a claim to an area of continental shelf beyond 200 nautical miles adjacent to Alaska.

3 Maritime boundary agreements

As explained below, there are no fully delimited maritime boundaries in the central Arctic Ocean involving the Russia Federation or Canada. The two states have entered into three bilateral agreements with neighbours that provide for partial delimitation of Arctic Ocean areas, but each of the agreements is incomplete in some manner.

3.1 Russian Federation–Norway

As a result of a number of bilateral agreements between Russia and Norway stretching over 50+ years, the Arctic maritime boundary between Russia and Norway is essentially resolved.

The first offshore boundary agreement in the Arctic Ocean region was the 1957 Norwegian–Russian Federation Agreement,²² which delineated the territorial sea and continental shelf boundary between Norway and the Russian Federation for a distance of 24.35 nautical miles adjacent to the Varanger Fjord. The 1957 Agreement was essentially replaced by a 2007 Agreement that refers to and utilizes the 1957 line, extending it to a total distance of 39.41 nautical miles that delimits the territorial sea, EEZ and continental shelf in the area.²³

The establishment by Norway and Russia of 200 nautical mile zones in the 1970s resulted in an overlapping disputed area in the Barents Sea of approximately 155,000 square kilometres and a second area of overlap in the Arctic Ocean of approximately 20,000 square kilometres.²⁴ The Barents Sea is framed by the Norwegian mainland, Svalbard, the Russian mainland, and the Russian islands of Novaya Zemlya and Franz Joseph Land. The Arctic Ocean area includes the area between Franz Joseph Land and Svalbard and the area north of these islands.

After 40 years of negotiation, in 2010 the two states announced a maritime boundary agreement for the Barents Sea and Arctic Ocean areas.²⁵ The agreed boundary effectively cuts the disputed areas in half.²⁶ To the north of Svalbard and Franz Josef Land, the maritime boundary delineates areas of continental shelf beyond 200 nautical miles. Respecting the so-called loophole in the Barents Sea, the 2010 Agreement delimits the shelf beyond 200 nautical miles. As a result of the delimitation line, an area of 3,400 km² within 200 nautical miles of Norwegian baselines, but beyond the 200 nautical mile limit from Russian baselines, sits on the Russian side of the line.²⁷ The 2010 Agreement includes creative transfer of jurisdiction provisions allowing the Russians to exercise EEZ jurisdiction in this “Special Area” on the Russian side of the line that would otherwise be within Norway’s 200 nautical mile zone.²⁸ This innovative arrangement allowed the parties to divide the entirety of the EEZ area within 200 nautical miles of their coasts but not necessarily within 200 nautical miles of the baselines of the state on whose side of the line a particular area of EEZ is located. This practice is analogous to that of the United States and USSR (Russia) in the Bering Sea and Arctic Ocean, where four such Special Areas were created.²⁹ Importantly, the existing close relationship between the two states regarding fishing was maintained, as were other cooperative structures.³⁰

The incomplete aspect of the 2010 Agreement maritime boundary is minor. The northwestern terminal point of the boundary for the continental shelf beyond 200 nautical miles is conditioned on the Russian Federation establishing the western point of their shelf “in accordance with Article 76 and Annex II of the [LOS] Convention.”³¹ The maritime boundary will become complete when the Russian Federation receives and implements the recommendations of the Commission.

The 2010 maritime boundary has been promoted as a model for the resolution of overlapping claims in the Arctic Ocean: “[I]f little Norway … can negotiate a win-win boundary agreement with powerful Russia …, there is no reason for any other Arctic boundary dispute to remain unresolved.”³²

3.2 Russian Federation–United States

The 1990 United States–Russian Federation Agreement,³³ which also deals with the Bering Sea, establishes the boundary for the territorial sea and the 200 nautical mile zones of the two states in the Arctic Ocean.³⁴ The 1990 line is the western limit line in the 1867 Convention through which Russia ceded Alaska to the United States.³⁵ With respect to that part of the boundary dealing with the Arctic Ocean, the key phrase in the 1867 Convention was that from a specified point³⁶ the above-mentioned western limit line “proceeds due north, without limitation, into the … Frozen Ocean.”³⁷ Given U.S. opposition to the concept of so-called sector lines as a basis for division of the Arctic Ocean, the phrase “as far as permitted under international law” was used by the parties as a mutually acceptable alternative.³⁸ This indicates that the United States–Russia boundary line extends into the Chukchi Sea, dividing the parties’ EEZs and their continental shelf rights seaward of their 200 nautical mile limits should the legal continental shelf of both states extend beyond 200 nautical miles. The wording, however, leaves uncertain the terminal point of the boundary between the states in the central Arctic Ocean. Further, as noted above, the 1990 Agreement created four “Special Areas” that are within 200 nautical miles of one party, but located on the ‘other’ side of the line and administered by the other party.³⁹ Three of these Special Areas are located in the Bering Sea, but one, administered by the United States but within 20 nautical miles of Russian rather than American baselines along the coast, is located in the Arctic Ocean. The 1990 Agreement is explicit in indicating that the sovereign rights exercised in these areas are derived “from the agreement of the Parties and does not constitute an extension of its exclusive economic zone.”⁴⁰

Curiously, the 1990 Agreement is not in force between the parties, as the Russian Federation has not formally ratified the Treaty. However, both states abide by the Agreement. The United States and Soviet Union entered into an exchange of notes on the same day the Treaty was signed wherein it is stated that “pending the entry into force of the Agreement, the two Governments agree to abide by the terms of that Agreement as of June 15, 1990.”⁴¹ The Agreement to respect the terms of the 1990 Agreement has and continues to be followed by Russia and the United States.⁴² Further, the Russian Federation, in its 2001 submission and 2015 resubmission to the Commission, indicates that the 1990 Agreement line is both the maritime boundary between the two states out to 200 nautical miles, and but also that the 1990 Agreement line continues respecting the shelf area within and beyond 200 nautical miles.

As a practical/operational matter, the 1990 Agreement is seen as a complete boundary for the two states in the central Arctic Ocean, though it is also incomplete as a result of the entry-into-force situation and there being no definitive end-point of the boundary line between the states in the central Arctic Ocean.

3.3 Canada–Denmark (Greenland)

In 1973 Canada and Denmark (Greenland) agreed upon a continental shelf boundary from Davis Strait in the south to the Lincoln Sea in the north.⁴³ The boundary terminates in the Robeson Channel before entering the Arctic Ocean. There is a small gap in this maritime boundary as a result of the sovereignty dispute over Hans Island,⁴⁴ which is the only disputed land territory in the Arctic region. Providing for a break in the continental shelf boundary such that the boundary line stops just to the south of Hans Island and then continues just to the north of it, allowed Canada and Denmark to side-step the sovereignty dispute over the feature which, in any case, was given no effect on the course of the delimitation line.

As permitted under the 1973 Agreement in Article 4, as a result of new surveys and information, a slight adjustment was made in 2004 to the original 1973 line.⁴⁵ That the 1973 Agreement unusually provided for the readjustment of an international boundary line recognizes the imperfect understanding of the location of baselines in the context of ice-covered coasts, as well as recognizing the technical difficulties associated with undertaking survey work at high latitudes.

In 2012, Canada and Denmark (Greenland) announced that they had reached an agreement-in-principle on a maritime boundary out to 200 nautical miles in the Lincoln Sea.⁴⁶ The announcement stated that equidistance was to be applied and that further technical adjustments were to be made to the 1973 Agreement. Both Denmark’s 2014 Arctic submission and Canada’s 2019 Arctic submission to the Commission portray an equidistance line between Canada and Denmark within 200 nautical miles.

In May 2018, Canada and Denmark announced the establishment of a Joint Task Force to “explore options and provide recommendations on how to resolve outstanding boundary issues … [and] this includes the sovereignty of Hans Island, the maritime boundary line in the Lincoln Sea and the Labrador Sea continental shelf overlap beyond 200 nautical miles.”⁴⁷

4 Overlapping 200 nautical mile claims: Canada–United States

In the Beaufort Sea, defined by the coasts of Alaska and Yukon–Northwest Territories, Canada and the United States have approximately 6,250 square nautical miles of overlapping claimed territorial sea and 200 nautical mile zones.⁴⁸ Canada has delineated its 200 nautical mile zone in the area using the 141st west meridian,⁴⁹ apparently relying on Article III of the 1825 Russia–Great Britain Treaty,⁵⁰ which provides for a boundary between the two states along the 141st meridian “in its prolongation as far as the Frozen ocean” (“dans son prolongement jusqu’à la Mer Glaciale,” the authentic language of the Treaty is French). The U.S. position is that the maritime boundary is an equidistance line.⁵¹ Canada and the United States have adopted informal policies of discouraging drilling or other hydrocarbon-related activity from taking place in the disputed area within the Beaufort Sea,⁵² but have also regularly exchanged diplomatic notes regarding their respective claims.⁵³

What has been described as a “complicating factor” in the Beaufort Sea is that the western limit of the 1984 Inuvialuit Final Agreement, a constitutionally-recognized First Nations land claim agreement in Canada, is the 141st west meridian.⁵⁴ While the internal Canadian Agreement is not binding on the United States and, pursuant to international law, Canada can enter into a treaty with the United States irrespective of the Canadian constitutional document, nevertheless, at a minimum, should Beaufort Sea boundary negotiations take place, the Inuvialuit have a direct interest.⁵⁵

5 Overlapping shelf claims beyond 200 nautical miles

5.1 Canada Basin/Alpha Rise Area: Canada, Russia and the United States

The Canada Basin, the Chuckchi Plateau, and the Alpha Rise are the principal features of the seafloor to the southwest of the North Pole. This area is encircled by Canada, the Russia Federation and the United States. In this area, as between the United States and the Russian Federation, the 1990 Agreement applies should there be continental shelf beyond 200 nautical miles over which only these two states have jurisdiction. In the 2015 Russian resubmission, the 1990 Agreement line indicates the limit of Russia’s continental shelf, irrespective of whether or not the shelf area is also under the jurisdiction of the United States. The Canadian submission indicates an area of continental shelf in the Canada Basin/Alpha Rise area which will likely overlap with the shelf area that the United States can be expected to assert adjacent to the Chukchi Plateau and in the Canada Basin on the U.S. side of the United States–Russia Agreement line of 1990. Canada has also indicated a claim to a shelf area that is located on the Russian Federation side of the 1990 Agreement line.

In a potential bilateral scenario with Canada, based on the above, the Russian Federation maximum claim would be the 1990 maritime boundary line, whereas the Canadian maximum claim would extend into the Russian side of the United States-Russia delimitation line of 1990. Of course, in maritime boundary negotiations Canada and Russia would also have issues and considerations to balance respecting the Lomonosov Ridge area.

One of the outcomes of the Canadian Arctic submission, coupled with the reasonable assumption that the United States will fully document its case that the Chukchi Plateau is part of its extended continental shelf, is that the only area of the central Arctic Ocean that is not under the jurisdiction of a coastal state is the Gakkel Ridge.

Canada’s 2019 Arctic submission indicates that the continental shelf extends beyond 200 nautical miles northward of the 200 nautical mile claims of both Canada and the United States. If Canada maintains its position respecting the 141st west meridian and the United States maintains its equidistance position beyond 200 nautical miles, the Canadian position favours the United States and the U.S. position favours Canada.⁵⁶ As neither Canada nor the United States has formally expressed a view on their maritime boundary beyond 200 nautical miles, and the two states have worked together on some of the mapping of the seafloor in the Canada Basin, it can be surmised that it was seen as counter-productive for Canada to delimit its maritime boundary beyond 200 nautical miles in this area in its Arctic submission. The Canadian submission notes that the United States “does not object to the consideration of Canada’s submission, without prejudice both to the delineation of the outer limits of its own continental shelf and to matters relating to the delimitation of boundaries in this region.” However, it is obvious that the absence of objections from the United States does not indicate their approval of Canada’s territorial claims. After the Commission makes recommendations, negotiations on the delimitation of the Arctic shelf between Canada and the United States, as well as with Russia, will undoubtedly take into account their recommendations.

5.2 Lomonosov Ridge area: Denmark (Greenland)–Russian Federation–Canada

The Lomonosov Ridge is a prominent feature of the seafloor in the part of the northern central Arctic Ocean that stretches from offshore the Russian Federation to offshore Canada and Denmark (Greenland). Immediately adjacent to the Lomonosov Ridge is the North Pole. Whatever questions there may have been a decade ago, it is now clear, based on the submissions of the three states, that they view the Ridge as being continental in origin and not part of the deep ocean floor. The Arctic submissions of Canada, Denmark (Greenland) and the Russian Federation each have included all or part of the Lomonosov Ridge and adjacent areas as being part of their continental shelves.

Of note is that the outer shelf limit in Denmark’s submission extends to the 200 nautical mile zone of the Russian Federation. Canada’s proposed outer limit in this area does not extend to Russia’s 200 nautical mile zone, nor does the Russian outer limit submission extend to Canada’s 200 nautical mile zone. As a result of the proposed outer limits of the three states in this area, there are continental shelf areas depicted as belonging to all three, other areas captured by only two states, and still other areas that are part of only one state’s claimed area of extended continental shelf.

In Canada’s 2019 submission, the shelf outer limit captures the North Pole and there is a clear overlap with the submission of Denmark respecting the southern part of the Lomonosov Ridge, including the North Pole. The Canadian outer limit line does not extend to Denmark’s (Greenland) 200 nautical mile zone.

Notifications to the Commission were made by the three states indicating their acceptance that the Commission deal with the submissions of the other states subject to “without prejudice” considerations.

6 Conclusion

Both Canada and the Russian Federation have engaged in successful bilateral boundary delimitation in the Arctic Ocean. The Russian accords with the United States and Norway are impressive accomplishments and provide a strong signal in favour of pragmatism in future discussions between Russia and both Denmark (Greenland) and Canada.

Canada faces overlapping claims in the Arctic Ocean with Denmark, the Russian Federation and the United States. At some point, the Canada-Denmark Boundaries Task Force will report. The North Pole, considerably closer to Denmark (Greenland) than to Canada, is likely one of the sticking points. Despite overall excellent relations between Canada and the United States, maritime boundary delimitation has not been an area of much success. Perhaps surprisingly Canada may find it easier to accomplish an accord with the Russian Federation in the Arctic Ocean than with the other two states involved.

The recommendations of the Commission will play an important role in future negotiations, as they will determine the extent of the shelf that needs to be delimited. Irrespective of the apparent overlapping maritime claims in the Arctic Ocean, there is minimal likelihood of serious consequences or inter-state tension respecting Arctic maritime claims and boundaries. First, it will be years before the Commission will deal with the Canadian and Danish submissions respecting shelf areas beyond 200 nautical miles. Second, the Arctic states have been cooperating generally on Arctic issues. Third, as regards the central Arctic Ocean, there is little interest in the types of resources that often animate the need for clear boundaries. Just because there are overlapping claims—a dispute—does not mean that the dispute is disruptive or “hot.”

In the Arctic Ocean, in particular as regards the disputed continental shelf claims beyond 200 nautical miles, the disputes are indeed cold.

Acknowledgments

The authors acknowledge the research support of the Donner Canadian Foundation through a project, “Responding to a Changing Arctic Ocean: Canadian and Russian Experiences and Challenges”, which has been co-led by the Marine & Environmental Law Institute, Schulich School of Law, Dalhousie University and the School of Law, Far Eastern Federal University. This contribution draws on, with modification, T. L. McDorman and C. Schofield, “Maritime Limits and Boundaries in the Arctic Ocean: Agreements and Disputes,” in Leif Christian Jensen and Geir Honneland, eds, Handbook of the Politics of the Arctic (Edward Elgar, 2015), pp. 207–226 and Ted L. McDorman and Clive Schofield, “The Arctic Ocean Unscrambled: Competing Claims and Boundary Disputes,” in Karen N. Scott and David L. VanderZwaag, eds, Research Handbook on Polar Law (Edward Elgar, 2020).

NOTES

1. Intergovernmental Panel on Climate Change (IPCC), “Summary for Policymakers,” in IPCC Special Report on the Ocean and Cryosphere in a Changing Climate, eds, H.-O. Pörtner, D. C. Roberts, V. Masson-Delmotte et al. (Geneva: IPCC, 2019), 6.
2. Regarding Arctic Ocean sea ice, see, National Snow & Ice Data Center (NSIDC) at http://nsidc.org/arcticseaicenews/.
3. Ilulissat Declaration (28 May 2008) (2009) 48 ILM 362.
4. United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982, in force 16 November 1994) 1833 UNTS 397 [LOSC].
5. K. Bartenstein, “The ‘Arctic Exception’ in the Law of the Sea Convention: A Contribution to Safer Navigation in the Northwest Passage?,” Ocean Development and International Law 42(1) (2011): 22; V. Gavrilov, R. Dremliuga and R. Nurimbetov, “Article 234 of the 1982 United Nations Convention on the Law of the Sea and Reduction of Ice Cover in the Arctic Ocean,” Marine Policy 106 (2019): 103518.
6. V. Gavrilov, “Legal Status of the Northern Sea Route of the Russian Federation,” Ocean Development and International Law 46(3) (2015): 256.
7. R. R. Churchill, 2001. “Claims to Maritime Zones in the Arctic – Law of the Sea Normality or Polar Peculiarity?,” in The Law of the Sea and Polar Maritime Delimitation and Jurisdiction, eds, A. G. Oude Elferink and D. R. Rothwell (The Hague: Martinus Nijhoff, 2001), 105–124, 121–123.
8. In announcing the baselines, Canada’s Minister for Foreign Affairs Joe Clark stated that “these baselines define the outer limit of Canada’s historical internal waters.” See Government of Canada, “Joe Clark, Minister for Foreign Affairs,” House of Commons, Debates, 10 September 1985: 6463. The legal relevance of historic internal waters and the Northwest Passage is noted in T. L. McDorman, Salt Water Neighbors: International Ocean Law Relations between the United States and Canada (New York: Oxford University Press, 2009), 213–214.
9. J. A. Roach and R. W. Smith, United States Responses to Excessive Maritime Claims, 3rd edition (Leiden: Martinus Njhoff, 2012), 53, 97, 111–112, 321–324; United States, “Diplomatic note (to the Russian Federation)” (29 May 2015), reprinted in Digest of United States Practice in International Law – 2015 (C. L. Guymon, ed.), 526–528.
10. See LOSC, Articles 76(1), 77(1 and 4).
11. Ibid., Article 77(3).
12. Ibid., Annex II, Commission on the Limits of the Continental Shelf, and see the website of the Commission at http://www.un.org/depts/los/clcs_new/clcs_home.htm.
13. Ibid., Article 76(10).
14. Commission on the Limits of the Continental Shelf (CLCS), Rules of Procedure of the Commission, UN Doc. CLCS/40/Rev.1, 17 April 2008, Rule 4 and Annex 1.
15. Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal, International Tribunal for the Law of the Sea (ITLOS) Case No.16, Judgment, 14 March 2012, para 407.
16. All of the submissions to the Commission and recommendations made to submitting states by the Commission referenced in this article are available on the Commission website.
17. V. Gavrilov, “The LOSC and the Delimitation of the Continental Shelf in the Arctic Ocean,” International Journal of Marine and Coastal Law 31(2) (2016): 332.
18. O. Jensen, “Russia’s Revised Arctic Seabed Submission,” Ocean Development and International Law 47(1) (2016): 72.
19. Russian Federation, Addendum to the Partial Revised Submission of the Russian Federation to the Commission on the Limits of the Continental Shelf in Respect of the Continental Shelf in the Area of the Lomonosov Ridge, Alpha Ridge, Mendeleev Rise, Amundsen and Makarov Basins, and the Canadian Basin, 2021; Russian Federation, Addendum to the Partial Revised Submission of the Russian Federation to the Commission on the Limits of the Continental Shelf in Respect of the Continental Shelf in the Area of the Gakkel Ridge, Nansen and Amundsen Basins, 2021.
20. For details see IBRU Centre for Borders Research, Maritime jurisdiction and boundaries in the Arctic region, map, available at https://www.durham.ac.uk/research/institutes-and-centres/ibru-borders-research/maps-and-publications/maps/arctic-maps-series/.
21. A 1987 U.S. document attached to a memorandum states that the “United States has exercised and shall continue to exercise jurisdiction over its continental shelf in accordance with and to the full extent permitted by international law as reflected in Article 76.” United States, memorandum dated 17 November 1987 and attached document, “United States Policy Governing the Continental Shelf of the United States of America,” Cumulative Digest of United States Practice in International Law, 1981–1988, at pp. 1878–1879 and reprinted in Roach and Smith, United States Responses to Excessive Maritime Claims, 187–188.
22. Agreement between Norway and the Soviet Union concerning the Sea Frontier in the Varangerfjord (15 February 1957, in force 24 April 1957) 312 UNTS 289.
23. Agreement between the Russian Federation and Norway on the Maritime Delimitation in the Varangerfjord Area (11 July 2007, in force 9 July 2008) 2526 UNTS 33; see M. Wood, “Norway–Russian Federation,” in International Maritime Boundaries, Vol. VI, eds, D. A. Colson and R. W. Smith (Martinus Nijhoff, Leiden, 2011), 4479–4487.
24. A. G. Oude Elferink, “Arctic Maritime Delimitations: The Preponderance of Similarities with Other Regions,” in Oude Elferink and Rothwell, The Law of the Sea and Polar Maritime Delimitation and Jurisdiction, 179–200, 185.
25. Treaty between the Russian Federation and the Kingdom of Norway concerning Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean (15 September 2010, in force 7 July 2011) 2791 UNTS 3 [2010 Russia-Norway Treaty].
26. T. Henriksen and G. Ulfstein, “Maritime Delimitation in the Arctic: The Barents Sea Treaty,” Ocean Development and International Law 42 (2011): 1, 1.
27. R. E. Fife, “Norway–Russian Federation, Report Number 9-6,” in International Maritime Boundaries, Vol. VII, ed., C. G. Lathrop (Leiden: Brill, 2016), 5,167–5,203.
28. 2010 Russia-Norway Treaty, Article 3; see M. Byers, International Law and the Arctic (Cambridge: Cambridge University Press, 2013), 43–44.
29. C. H. Schofield, “Dividing and Managing Increasingly International Waters: Delimiting the Bering Sea, Strait and Beyond,” in Science, Technology and New Challenges to Ocean Law, eds, J. Kraska and H. Scheiber (Leiden/Boston: Martinus Nijhoff, 2015), 313–344, 336–339.
30. Henriksen and Ulfstein, “Maritime Delimitation in the Arctic,” 8.
31. 2010 Russia-Norway Treaty, Article 1.
32. Byers, International Law and the Arctic, 46.
33. Agreement between the United States and the Soviet Socialist Republic on the Maritime Boundary (1 June 1990, provisionally in force 15 June 1990) (1990) 29 ILM 941 [1990 United States–Russian Federation Agreement].
34. E. G. Verville, “United States–Soviet Union,” in International Maritime Boundaries, Vol. I, eds, J. I. Charney and L. M. Alexander (Dordrecht: Martinus Nijhoff, 1996), 447–460.
35. 1990 United States–Russian Federation Agreement, Article 1(1); Convention ceding Alaska between Russia and the United States (30 March 1867, in force 20 June 1867), 134 CTS 331, Article I [1867 Convention].
36. This being “a point in Behring’s straits on the parallel of sixty-five degrees thirty minutes north latitude, at its intersection by the meridian which passes midway between the islands of Krusenstern, or Ignalook, and the island of Ratmanoff, or Noonarbook.” 1867 Convention, ibid.
37. Ibid.
38. 1990 United States–Russian Federation Agreement, Article 2.
39. Ibid., Article 3(1) and 3(2).
40. Ibid., Article 3(3).
41. The Exchange of Notes is reproduced in Verville, “United States–Soviet Union,” 454.
42. Ibid.
43. Agreement between the Kingdom of Denmark and Canada relating to the Delimitation of the Continental Shelf between Greenland and Canada (17 December 1973, in force 13 March 1974) 950 UNTS 147.
44. R. Huebert, “The Return of the Vikings: The Canadian–Danish Dispute over Hans Island – New Challenges for the Control of the Canadian North,” in Breaking Ice: Renewable Resources and Ocean Management in the Canadian North, eds, F. Berkes, R. Huebert, H. Fast, M. Manseau and A. Diduck (Calgary: University of Calgary Press, 2005), 319–336; M. Byers, “Creative Thinking on Sovereignty: Hans Island,” Policy Options (3 March 2014), http://policyoptions.irpp.org/magazines/opening-eyes/creative-thinking-on-sovereignty (accessed 20 August 2020).
45. Exchange of Notes Constituting an Agreement to Amend the 1973 Canada–Denmark Continental Shelf Agreement, 5 and 20 April 2004, Canada Treaty Series 2009/27. See T. L. McDorman, “Canada–Denmark (Greenland) [Report Number 1-1 (Add.1)],” in International Maritime Boundaries, Vol. VIII, ed., C. G. Lathrop (Leiden: Brill, 2020).
46. Canada, Department of Foreign Affairs, Trade and Development, “Canada and Kingdom of Denmark Reach Tentative Agreement on Lincoln Sea Boundary,” Press Release (28 November 2012), https://www.canada.ca/en/news/archive/2012/11/canada-kingdom-denmark-reach-tentative-agreement-lincoln-sea-boundary.html (accessed 20 August 2020).
47. Global Affairs Canada, “Canada and the Kingdom of Denmark (with Greenland) Announce the Establishment of a Joint Task Force on Boundary Issues,” News Release (23 May 2018), http://www.canada.ca/en/global-affairs/news/2018/05/canada-and-the-kingdom-of-denmark-with-greenland-announce-the-establishment-of-a-joint-task-force-on-boundary-issues.html; Ministry of Foreign Affairs of Denmark, “Canada and the Kingdom of Denmark (with Greenland) Announce the Establishment of a Joint Task Force on Boundary Issues,” News Release (23 May 2018), https://um.dk/da/news/newsdisplaypage/?newsID=073E077B-579E-4E66-B5E9-8D32BDB51A42 (both accessed 24 January 2020).
48. D. H. Gray, “Canada’s Unresolved Maritime Boundaries,” Geomatica 48(2) (1994): 131, 135.
49. Canada, Fishing Zones of Canada (Zone 6) Order, Consolidated Regulations of Canada (1978), c 1549, at pp. 13747–13750.
50. Convention between Great Britain and Russia Concerning the Limits of their Respective Possessions on the North-West Coast of America and the Navigation of the Pacific Ocean (16 February 1825), 75 Canada Treaty Series 95. This Agreement is binding on the United States as a result of the U.S. acquisition of Alaska from Russia in 1867. See 1867 Convention.
51. U.S. Department of State, “Exclusive Economic Zone and Maritime boundaries,” Public Notice 2237, 23 August 1995, 60 Federal Register 43825–43829.
52. Gray, “Canada’s Unresolved Maritime Boundaries,” at 135, refers to the two states having “established a moratorium on exploration” in the disputed area.
53. United States, “Diplomatic Note (to Canada) (22 December 2017),” reprinted in Digest of United States Practice in International Law – 2017 (C. L. Guymon, ed.), 533.
54. Byers, International Law and the Arctic, 80.
55. Ibid., 80–82.
56. Ibid., 59–62.