CYIL Vol. 5, 2014

WHAT IS THE LEGAL REGIME OF THE ARCTIC?

1. The issue of territorial claims in the Arctic When, in 1909, Admiral Peary raised the flag of the USA on the North Pole, the theoretical question which was discussed to some extent was whether the area around the North Pole could be the object of occupation . According to Oppenheim it probably could not be because it is not land but merely frozen sea with drifting ice. 3 Some authors 4 in the past, however, thought that a permanently frozen shelf could be the object of effective occupation . The Arctic region is surrounded by shores of several states – Russia, Canada, the USA, Denmark (Greenland), Norway. Islands can be found in this area, and so the question on which to base the territorial claims to these islands or frozen ice surfaces arises. Some states, for example Russia or Canada, exercised sovereignty over areas of frozen sea and its parts using the concept of the polar sector principle. 5 The polar sector, however, cannot be considered a new title for exercising sovereignty, which derives from such titles as title of discovery, effective occupation or contiguity. According to Brownlie 6 such acts of the state that express effective occupation are necessary. The application of the sector principle led to the opposition of other states, for example, Norway or the USA, which claimed that the Arctic sea is regulated by the same legal regime as the open sea. 7 The sector principle is not used by Denmark either. According to Browlie three arguments against the sector principle’s application in the Arctic can be raised. The sector principle fails in any doctrine based on contiguity. Its application is a bit absurd if it establishes a claim to sovereignty over a narrow splinter stretching to the Pole. It also cannot be applied because of the reason that the sector may include part of the open sea. 8 Contributing to other uncertainties concerning the territorial claims towards frozen ice surface there is also the fact that the ice surface becomes smaller as a result of warming. According to findings of the Arctic Council the temperature in the Arctic rises twice as quickly 9 as is the global average which leads to melting of the Arctic glaciers. The extent of unfrozen or not permanently frozen sea increases. Concerning the application of claims towards the seabed (ocean floor) a question could be raised by the Russian placement, through a mini-submarine, of a flag at the bottom of the sea on the North Pole on 2 August 2007. Placing of the flag is just a symbolic act and, as Correll writes, it does not have any legal relevance. 10 3 Jennings, R., Watts, A., Oppenheim’s International Law . 9th edition, Volume 1 Peace, parts 2 to 4. Oxford: Oxford University Press, 1992, p. 692. 4 For example Waldock, Hackworth, Fitzmaurice, Whiteman in: Brownlie, I., Principles of Public International Law . 7 th edition. Oxford: Oxford University Press, 2008, p. 144. 5 Brownlie, I., op. cit., p. 144. 6 Ibid . 7 Dixon, M,. Textbook on International Law . 4th edition. London: Blackstone Press Limited, 2000, p. 161. 8 Brownlie, I., op. cit., p. 144. 9 Arctic Council finding (2005). 10 Corell, H., Common Concern for the Arctic Conference Arranged by the Nordic Council of Ministers,

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