Abroad Thoughts from Home

with Ian Townsend-Gault
Director of the Centre for Asian Legal Studies
Faculty of Law, University of British Columbia
Vancouver, Canada

Of Parallels and Meridians:

Implications of Barents Sea Dispute Resolution for the Beaufort Sea

Clive Schofield and Ian Townsend-Gault

On 7 July 2011, the Norwegian Foreign Minister, Jonas Gahr Støre and his Russian counterpart, Sergei Lavarov, exchanged instruments of ratification on the Treaty on Maritime Delimitation and Cooperation in the Barents Sea and Arctic Ocean.1 The agreement, signed on 27 April 2010, was ratified by the Norwegian parliament on 8 February 2011 and by Russia's State Duma on 25 March 2011. This treaty on the delimitation of a maritime boundary resolves Norway and Russia's longstanding dispute over the Barents Sea.

What is the significance of the Norway-Russia deal and does it have any parallels and implications for the settlement of Canada and the United States' similarly substantial and enduring dispute in the Beaufort Sea?

An Arena for Cooperation rather than Conflict?

Perhaps the most salient and striking aspect of the Barents Sea agreement is that it marks the peaceful settlement of a long-running and previously apparently intractable boundary dispute among two neighbouring Arctic States. This runs distinctly counter to much of the contemporary narrative on the Arctic region as an arena for increasing resource-driven jurisdictional and geopolitical rivalry and thus potential conflict.

Suggestions that the Arctic is the focus of a multi-player "land grab"2 and resource access-related "scramble"3 or "race"4 have been widespread since reports of the substantial melting of Arctic summer sea ice cover emerged and particularly in the wake of Russia's planting of a flag on the sea floor beneath the North Pole in 2007. Such imagery of a contested region has been sustained over time and are by no means merely confined to media analysis. For example, in October 2010 a senior NATO Commander, US Navy Admiral James G Stavridis, supreme allied commander for Europe, warned that a warming Arctic and a race for resources could lead to a new "cold war" in the Arctic.5 Stavridis observed that: "For now, the disputes in the north have been dealt with peacefully, but climate change could alter the equilibrium over the coming years in the race of temptation for exploitation of more readily accessible natural resources," and cited the melting of the Arctic ice cap as "a global concern" because of its potential to "alter the geopolitical balance in the Arctic heretofore frozen in time."6

Consistent with the apparently commonly held view of the Arctic as an area ripe for geopolitical and resource driven competition and potentially conflict, unleashed by the melting of summer sea ice, is the perception of the maritime claims of the Arctic coastal States are symptomatic of this trend. In this context claims to maritime jurisdiction on the part of the Arctic coastal States, including recent and forecast submissions related to extended continental shelf rights, and the actual or potential overlaps between them, have often been characterised as potential source of dispute and triggers for conflict.

Alternatively it can be observed that the claims of the Arctic coastal States are, in fact, consistent with international norms and particularly the United Nations Convention on the Law of the Sea (LOSC).7 Four of the five Arctic littoral States are parties to LOSC and the sole non-party, the United States, acts in a manner consistent with the Convention with respect to its maritime claims.8 Indeed, the maritime jurisdictional claims of all the Arctic States are in keeping with the provisions of LOSC. This also applies to the submissions that the Arctic States have either made or are preparing in respect of areas of extended continental shelf located seawards of the 200 nautical mile limit from baselines. Such submissions are made to the relevant United Nations scientific body - the Commission on the Limits of the Continental Shelf (CLCS). That Arctic States such as Russia (2001) and Norway (2006) have made submissions to the CLCS and that there are strong indications that other Arctic States will follow suit in due course (Canada's deadline falling in 2013 and Denmark's in 2014), represents further evidence that the Arctic States are acting in line with international law.

Norway and Russia's resolution of their longstanding maritime boundary dispute offers compelling evidence that the Arctic States are capable of resolving their differences in a peaceful and cooperative manner. Indeed, on signing the agreement, Russian President Medvedev termed the agreement a way for the two States to "turn a new page" in relations and "a key step forward" whilst Norwegian Prime Minister Jens Stoltenberg referred to the treaty as a "historic milestone" and "new era of cooperation."9 In a joint statement both leaders hailed the agreement as a symbol of the Arctic as peaceful region where disputes resolved in accordance with international law.10

Parallels between the Barents and Beaufort Seas

Intriguingly, there are strong parallels between the Barents Sea and Beaufort Sea cases. Both disputes essentially arise (or arose in respect of the Barents Sea) from one parties desire for a maritime boundary delimitation based on an equidistance line and the other parties' insistence on a boundary line consistent with a sector, that is due north-south, line. Thus, Norway and Russia's overlapping maritime claims in the Barents Sea were essentially caused by Norway's preference for a median line and Russia's insistence on a sector line solution. This fundamental difference in maritime delimitation methodology led to a broad area of overlapping claims encompassing 175,000km2 (see Figure 1).

Figure 1.   Barents Sea

Analogous to the Barents Sea scenario, the Canada-US dispute in the Beaufort Sea centres on differing approaches to maritime delimitation in the area. The U.S. insists on an equidistance line as a basis for delimitation, but Canada might argue that the maritime boundary should be a seaward extension of the 141º W meridian, which provides the boundary between Alaska and the Yukon Territory. These positions represent the conventional approach (United States) and the sector-based approach (Canada), the two main approaches to maritime boundary delimitation.11 One point worth observing is that while the sector-based approach is clearly more favourable to Canada in the area immediately offshore of the coast, this is not the case further offshore. This is essentially because of the influence of Canadian Arctic islands on the course of a theoretical equidistance line (see Figure 2). Overall, therefore, Canada's sector-based approach (if agreed to by its neighbouring States) would deliver considerably less maritime space to Canada than the application of strict equidistance lines. Whether these additional areas further offshore are as potentially important from a resource access perspective is, however, a different question.

The boundary line delimited through the Treaty on Maritime Delimitation and Cooperation in the Barents Sea and Arctic Ocean serves to divide the area of overlap through the delimitation of a single maritime boundary for exclusive economic zone (EEZ) and continental shelf rights out to the 200 nautical mile limit from the mainland coasts of the parties, a continental shelf boundary with respect to the so-called 'Barents Sea Loophole' beyond 200 nautical miles from either States baselines, and a delimitation through the northern Barents Sea for the continental shelf and also the Norwegian fisheries protection zone defined on behalf of Svalbard and the Russian EEZ (generated from the islands of Franz Josef Land and Novaya Zemlya).12 Perhaps unsurprisingly the agreed boundary line represents a compromise between the parties contending positions - arguably an obvious yet nonetheless critical lesson for Beaufort Sea dispute resolution.

Is the present deadlock in the Beaufort Sea likely to change anytime soon? Perhaps. Certainly there are indications that the issue is acquiring greater impetus and is of rising importance on domestic and bilateral political agendas. Indeed, report issued by the Canadian government in August 2010 reportedly indicated that in a "historic shift" Canada would make the resolution of Arctic boundary disputes top foreign-policy priority in the Far North.13 Further, Prime Minister Harper of Canada and President Obama of the United States have gone on record to state their intention to resolve their boundary disputes with alacrity. That said, substantial challenges lie ahead in both the Barents and Beaufort Seas.

In This Issue

Looking At Things Differently Changes What You See
Steve Wexler
UBC law professor Steve Wexler discusses a breakthrough in his thinking about the individual's perspective on law and its coherency.

Unanimism: Between Sociology and Psychology
Sirus Kashefi

Dr. Kashefi takes a critical look at Unanimism, whereby "members of a group do or think something simultaneously". He analyzes the concept of Unanimism on the basis of collective behaviour's psychological consciousness and unconsciousness, as well as its sociologically observed rationality or irrationality. In this era of protest and unrest, these are timely and valuable considerations.

The Japanese Art of Soji Contrasted With Western Unwillingness
Martin Novotny

Actor, Instructor, and Martial Arts Enthusiast Martin Novotny discusses the benefits of practicing the Japanese art of Soji which carries with it multivariate benefits for both person and place.

Literary Voices
Literary Contributions from Bateman-Ezra, Michael O'Connor, Martin Burke, and Clinton Van Inman

Literary selections from an international cast of writers.

IZ's Commitment to Somalia
Aweis Issa

Somali citizen Aweis Issa writes about the situation on the ground in Somalia.

The boundary is only the beginning...

That the maritime boundary issue has been settled in the Barents Sea is to be welcomed with open arms. Arguably, however, the hard work is only just starting. Whilst the Norwegian sector of the Barents Sea has been subject to substantial management efforts through the Integrated Management Plan for Barents Sea and Lofoten Islands.14 This plan can be classified as a success in that it has promoted scientific monitoring and research assisted in the management of oil and gas activity and therefore helped to minimise conflict between sectors. However, it can be observed that the plan and its related activities are still at an early stage of development, indicating that there is much work left to do.

The principal challenge now will be to extend the ecosystem approach central to the management of the Norwegian sector of the Barents Sea across the boundary to encompass the Russian Barents also. While the plan as currently conceived covers an enormous area (1.4 million km2) from the Lofoten archipelago to the north of Svalbard and to east to the boundary with Russia,15 and also applies from one nautical mile off the coast (the inshore is managed according to the EU Water Framework Directive) to the limits of the Norwegian EEZ, it does not cover the Russian portion of the Barents Sea across the now agreed and ratified Norwegian-Russian border. That said, significant bilateral cooperation does exist in the realm of fisheries which remains the dominant maritime industry in the Barents Sea. In this context, the Norwegian-Russian Fisheries Commission, under advice from the International Council for Exploration of the Sea (ICES), plays an influential role and is indicative of strong existing and ongoing bilateral cooperation between the Barents Sea littoral States.

Nonetheless, in order to achieve integrated, holistic management of the Barents substantial and sustained political will to drive such transboundary cooperation will inevitably be vital. This is particularly important because increasing maritime activities in the Arctic are disproportionately focussed towards the Barents Sea. The Barents Sea region is therefore likely to see the most intensive developments witnessed Arctic-wide and this, in turn, will create additional pressures on the cooperative management regime there.

For example, it was notable that the Norwegian and Russian Foreign Ministers, when announcing the exchange of instruments of ratification for the treaty on maritime delimitation in the Barents Sea and Arctic Ocean, framed the agreement in resource access terms. For example, the Norwegian Foreign Minister, whilst suggesting that the treaty "made it clear that there is no ongoing race for resources in the Arctic", stated that close bilateral cooperation on fisheries in the Barents Sea would continue and that the agreement also "creates new opportunities for petroleum activities and cooperation" in the Barents Sea.16 Such pronouncements immediately drew criticism from concerned NGOs such as Greenpeace. Reconciling increasing economic activity with the fragile environment of the Barents Sea in a transboundary context therefore raises multiple inter-related challenges.

Constitutional conundrums in the Beaufort Sea

For Canada, pursuing boundary negotiations in the Beaufort Sea will force the country to consider the status of the "sector theory". As noted above, this holds, in its simplest form, that Canada should claim the marine area bounded in the west by the 141º W meridian up to the North Pole, with the eastern arm being meeting the median line maritime boundary with Greenland. This has never been official Canadian government policy, yet nearly every map of Canada shows the sector, often designated as an "international boundary".

The problem is that the U.S. government has no intention of accepting the 141º W meridian as its maritime boundary with Canada. Rather, it insists that the common international practice be followed, and the boundary should be an equidistance line (see Figure 2). In the circumstances, it may be difficult for Canada to counter this position especially since, as has been said, it has never formally claimed the sector. It would be difficult to justify a meridian line on the basis of international law. Reference to the Barents Sea parallel for instance indicates that Russia abandoned their own sector-line claims.

Figure 2.   Beaufort Sea

But there is a complicating factor here. Ottawa has entered into a land claim agreement with the Inuit, part of which includes a marine area bounded by the 141º W meridian, and which extends more than 200 nautical miles from Canadian land. Such agreements enjoy constitutional protection, and it would be very difficult in domestic terms for Canada to agree to a boundary which resulted in any part of this area coming within U.S. jurisdiction. For its part, Washington can say - perfectly reasonably - that Ottawa agreed to a land claim with respect to marine areas which were not Canada's to dispose of. Canada's domestic constitutional concerns have no bearing at all on international rights or entitlements. The Barents Sea experience, as well as wider past practice in maritime delimitation, suggests that Canada is exceedingly unlikely to persuade the United States to agree to a boundary line along the 141º W meridian. Instead a compromise line somewhere between either sides' claim line is considerably more plausible.

Further problems will ensue if Canada attempts to enforce its jurisdiction - on behalf of the Inuit - in that part of the claim area beyond 200 nautical miles, that is, beyond the limits of Canada's rights at international law, and indeed what it claims in domestic law. Any attempt to interdict foreign vessels fishing there would be unlawful. The fact that the Inuit may claim this to have been their traditional waters will have no impact on the international legal position.

How did Canada get itself into this situation? The answer can only be that the federal negotiators did not fully realise the consequences of what they were doing, and advice was not sought from appropriate quarters. Or if such advice was forthcoming, it was ignored. In either case, the conundrum has the potential for grave embarrassments, internationally and domestically. But since Prime Minister Harper and President Obama seem set on effecting the Beaufort boundary, these issues will have to be faced sooner rather than later.

How, then, can Canada get out of this situation? It is suggested that a key component of such a solution would be to bring the Inuit into the boundary negotiations on the understanding that the maritime part of the land claim area might have to be re-negotiated. In essence the Canada's constitutional dilemma in the Beaufort Sea can be circumvented if the spatial limits of the land claim area can be amended to fit any agreed line with the United States. It necessarily follows that involving the Inuit in the negotiations with the U.S. is critical to achieving this outcome and clearing the way for further peaceful boundary dispute resolution between Arctic States.

  1. Norway Ministry of Foreign Affairs, 'Norway and Russia ratify treaty on maritime delimitation', Press Release, 7 June 2011, available at <http://www.regjeringen.no/en/dep/ud/press/news/2011/maritie_delimitation.html?id=646614>.
  2. David R. Sands, 'Sea treaty sparks rivalries', Washington Times, 12 November 2007.
  3. For example, see Ben. Leapman, 'Denmark joins race to claim North Pole', Sunday Telegraph, 14 August 2007.
  4. Michael Richardson, 'Race is on for Arctic resources', The Canberra Times, Sept.10 2007.
  5. Terry Macalister, 'Climate change could lead to Arctic conflict, warns senior Nato commander', The Guardian, 11 October 2010.
  6. Ibid.
  7. Adopted in Montego Bay, Jamaica, on 10 December 1982, entered into force on 16 November 1994, 1833 U.N.T.S. 397. Available at <http://www.un.org/Depts/los/convention_agreements/texts/unclos/closindx.htm>.
  8. J. Ashley Roach and Robert W. Smith, United States Responses to Excessive Maritime Claims, pp.5-6 (2d ed., Matinus Nijhoff Publishers 1996).
  9. 'Stoltenberg: A historic day!', The Norway Post, 27 April 2010, <http://www.norwaypost.no/news/stoltenberg-a-historic-day.html >.
  10. Ibid.
  11. J.R. Victor Prescott and Clive Schofield, The Maritime Political Boundaries of the World, (Leiden/Boston: Martinus Nijhoff Publishers, 2005) at 539.
  12. For an analysis of the agreement see, Tore Henriksen and Geir Ulfstein, 'Maritime Delimitation in the Arctic: The Barents Sea Treaty', Ocean Development and International Law, 42: 1-21.
  13. 'Arctic policy priority No.1: Settle border disputes', Globe and Mail, Aug.20 2010.
  14. Norwegian Government, 'Integrated Management of the Marine Environment of the Barents Sea and the Sea Areas off the Lofoten Islands', Report No. 8 to the Storting (Norwegian Ministry of the Environment, 2006), 144 pp.
  15. Erik Olsen, Harald Gjøsæter, Ingolf Røttingen, Are Dommasnes, Petter Fossum, and Per Sandberg, 'The Norwegian Ecosystem Based Management Plan for the Barents Sea', ICES Journal of Marine Science 64 (2007), 599-602.
  16. Norway Ministry of Foreign Affairs, 'Norway and Russia ratify treaty on maritime delimitation', Press Release, 7 June 2011, available at <http://www.regjeringen.no/en/dep/ud/press/news/2011/maritie_delimitation.html?id=646614>.

Past Issues


We believe the following organizations are making a difference for the better in this world and encourage you to consider supporting them.

Oxfam International

Red Cross International

World Vision International

Copyright 2011 International Zeitschrift