Emory International Law Review

International Law and the “Globalization” of the Arctic: Assessing the Rights of Non-Arctic States in the High North
Shiloh Rainwater Executive Notes and Comments Editor, Emory International Law Review; J.D. Candidate, Emory University School of Law (2016); B.A., magna cum laude, Pepperdine University (2013). The author would like to thank Robert Ahdieh, Vice Dean of Emory Law School, for his advice and suggestions on this Comment.

Abstract

Over the last two decades, accelerating climate change has catalyzed the globalization of Arctic affairs. As the polar ice sheet thaws to record-low levels, non-Arctic states are increasingly vying for a say in Arctic governance and economic development. The Arctic Council’s 2013 decision to admit six new non-Arctic states as permanent observers served to legitimize the interests of these distant interests in the region. Still, despite this largely symbolic gesture, non-Arctic states remain significantly disadvantaged with respect to pursuing their Arctic interests. Under the United Nations Convention on the Law of the Sea, most of the Arctic’s resources and both currently-accessible Arctic sea lanes are exclusively controlled by the littoral Arctic states. Regional actors also dominate arctic governance, as non-Arctic states are denied speaking and voting privileges at the Arctic Council. This Comment argues that these disparities not only harm the interests of non-Arctic states, but also undermine the effectiveness of the Arctic Council. This Comment concludes that a more inclusive, international approach to Arctic governance is imperative to address the challenges of a globalized Arctic.

Introduction

The Arctic region is the last global frontier and a region with enormous and growing geostrategic, economic, climate, environment, and national security implications for the United States and the world.

—U.S. Secretary of State John Kerry 1Press Release, John Kerry, Secretary, U.S. Dep’t of State, Secretary Kerry Announces Department Will Establish a Special Representative for the Arctic Region (Feb. 14, 2014), http://www.state.gov/secretary/remarks/2014/02/221678.htm [hereinafter Secretary Kerry Announces].

The Arctic Circle, once a frozen and inaccessible backwater under the exclusive dominion of the littoral Arctic states, is rapidly becoming globalized. In May 2013, the Arctic Council—the region’s leading governing body—voted to grant permanent observer status to six new non-Arctic states. 2Steven Lee Myers, Arctic Council Adds 6 Nations as Observer States, Including China, N.Y. Times, May 15, 2013, at A9. With the exception of Italy, all are Asian countries that stand to benefit from newly accessible shipping routes and resource deposits in the thawing Arctic: China, Japan, India, South Korea, and Singapore. 3Id. While permanent observers are granted only limited rights, the Council’s expansion to admit these distant states signals an important recognition that Arctic affairs are no longer “strictly regional,” as climate change makes the Arctic’s vast new economic opportunities accessible to the world. 4Shiloh Rainwater, Comment, Race to the North: China’s Arctic Strategy and its Implications, 66 Naval War C. Rev. 62, 76 (2013). As the Danish Foreign Minister stated, “it reflects the fact that many countries outside the Arctic area also have legitimate interests in the development of the region.” 5Chris Irvine, China Granted Permanent Observer Status at Arctic Council, Telegraph (May 15, 2013), http://www.telegraph.co.uk/news/worldnews/asia/china/10060624/China-granted-permanent-observer-status-at-Arctic-Council.html.

Notwithstanding this recognition, non-Arctic states remain significantly disadvantaged by the legal regimes and norms administering the Arctic region. First, under the United Nations Convention on the Law of the Sea (UNCLOS), 6See generally United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter UNCLOS]. most of the Arctic’s natural resources are divided among the sovereign jurisdictions of the five littoral Arctic states—Russia, Canada, Norway, Denmark (via Greenland and the Faroe Islands), and the United States (U.S.). 7See infra Part II.B.2. Non-Arctic states are thus severely limited in their ability to exploit these resources. Second, both currently-accessible trans-Arctic shipping routes are claimed by Russia and Canada as “internal waters” under international law, subject to the sovereign control of Moscow and Ottawa. 8See infra Part II.B.3. As a result, foreign commercial vessels may face significant restrictions when navigating the Arctic, including denial of access to the region. Third, although non-Arctic observers are granted some influence at the Arctic Council, Arctic governance remains dominated by the circumpolar states. 9See infra Part II.C. Non-Arctic states are therefore limited in their ability to participate in designing the rules and norms regulating Arctic affairs.

These disadvantages raise important questions as to the extent to which non-Arctic states will—and should—participate in Arctic governance and the development of newly accessible resource deposits and sea lanes in the Arctic region. While international law certainly privileges the rights of regional actors, distant states are entitled to some say in Arctic affairs, although the exact measure of that entitlement is somewhat unclear due to unresolved disputes among the Arctic states. 10See infra Parts II.B.2, II.B.3. What is clear, however, is that climate change has transformed the Arctic from an insular region with limited geopolitical and geoeconomic relevance into the next great frontier of opportunity for countries around the world. It is imperative, therefore, that the Arctic states take steps to accommodate the interests of distant actors when developing the Arctic region.

This Comment will analyze the legal rights of non-Arctic states in the Arctic region, and will present recommendations for circumpolar actors to respond to the interests of these states. Part I will explore the environmental and economic conditions catalyzing the “globalization” of the Arctic, and will proceed with a case study of China’s embryonic Arctic strategy. Part II will analyze the two primary legal arrangements governing Arctic affairs—UNCLOS and the Arctic Council—to determine the extent to which they restrict and/or expand the rights of non-Arctic states in the Arctic region. Particular consideration will be given to the practical and symbolic implications of the Arctic Council’s admission of new observers in 2013. Finally, Part III will analyze the structural disparities of the current Arctic regime, and will propose suggestions for Arctic governance reform. Suggestions will include enhancing the participatory rights of non-Arctic observers at the Arctic Council and adopting measures to increase coordination between regional forums.

I. The Changing Arctic: Thaw, Geopolitics, and the Globalization of the High North

A. Climate Change and Economic Potential

The Arctic landscape is transforming at an alarming rate, as regional temperatures rise twice as fast as the global average. 11Christopher Joyce, Arctic is Warming Twice as Fast as World Average, NPR (Dec. 18, 2014, 3:36 AM), http://www.npr.org/2014/12/18/371438087/arctic-is-warming-twice-as-fast-as-world-average. Since the 1980s, Arctic sea-ice coverage has diminished by seventy-five percent, 12Kathryn D. Sullivan, U.S. Dep’t of State, NOAA’s Arctic Action Plan 2 (2014). reaching record-low levels in 2007 and 2012. 13Maria-José Viñas, Arctic Sea Ice Hits Smallest Extent in Satellite Era, NASA (Sept. 19, 2012), http://www.nasa.gov/topics/earth/features/2012-seaicemin.html. Sea ice levels in 2014 melted to the sixth-lowest level on record. Doyle Rice, Arctic Sea Ice Melts to 6th-lowest Level on Record, USA Today (Sept. 22, 2014), http://www.usatoday.com/story/weather/2014/09/22/arctic-sea-ice-extent-minimum/16064037/. September 2014 marked the sixth-lowest level, 14Press Release, NASA, 2014 Arctic Sea Ice Minimum Sixth Lowest on Record (Sept. 22, 2014), http://www.nasa.gov/press/2014/september/2014-arctic-sea-ice-minimum-sixth-lowest-on-record/#.VEbXmvl4rYg. capping off ten consecutive years of the ten-lowest recorded ice extents. 15Sullivan, supra note 12. Given this trend, the Arctic Ocean could experience ice-free summers by 2040, 16Id. though some climate models predict such conditions as early as 2016. 17Nafeez Ahmed, U.S. Navy Predicts Summer Ice Free Arctic by 2016, Guardian (Dec. 9, 2013, 8:39 AM), http://www.theguardian.com/environment/earth-insight/2013/dec/09/us-navy-arctic-sea-ice-2016-melt. Indeed, Arctic warming has generally outpaced climate models. See Beating a Retreat, Economist (Sept. 24, 2011), http://www.economist.com/node/21530079; Suzanne Goldenberg, Climate Change Poses Growing Threat of Conflict in the Arctic, Report Finds, Guardian (May 14, 2014, 12:54 AM), http://www.theguardian.com/environment/2014/may/14/climate-change-arctic-security-threat-report (“Things are accelerating in the Arctic faster than we had looked at . . . changes there appear to be much more radical than we envisaged.”). Indeed, certain areas of the Arctic Ocean and its peripheral seas are already ice-free during the summer months, 18Sullivan, supra note 12. leading to unprecedented levels of economic activity in the region.

Of the various natural resources made accessible by the melting of the polar ice sheet, hydrocarbons are the primary commercial target. 19See Terry Macalister, Exhausted Global Oil Supplies Make Arctic the New Hydrocarbon Frontier, Guardian (July 5, 2011, 10:05 AM), http://www.theguardian.com/environment/2011/jul/05/oil-supplies-arctic. According to the U.S. Geological Survey, roughly twenty-two percent of the world’s “undiscovered, technically recoverable” petroleum is located in the Arctic region, including thirteen percent of the world’s undiscovered oil and thirty percent of its undiscovered natural gas. 20Jessica Robertson & Brenda Pierce, 90 Billion Barrels of Oil and 1,670 Trillion Cubic Feet of Natural Gas Assessed in the Arctic, U.S. Geological Survey Newsroom (July 23, 2008, 1:00 PM), http://www.usgs.gov/newsroom/article.asp?ID=1980#.VCcy-_ldV8E. The presence of these resources in the Arctic has been generally known for decades, yet “full-scale resource development” has only recently become “technically and economically feasible” with the melting of the polar ice sheet. See Ernst & Young, Arctic Oil and Gas 2 (2013). In fact, “[s]ome subarctic fields were discovered [as early as] the 1920s.” Andrew Bishop et al., Petroleum Potential of the Arctic: Challenges and Solutions, Oilfield Rev., Winter 2010-11, at 38. However, the “discovery of the first true Arctic commercial hydrocarbon field . . . occurred [in 1968].” Id. at 36. “About eighty-four percent of the estimated resources are expected to occur [in] offshore [areas].” 21Robertson & Pierce, supra note 20. In addition, 240 billion barrels of already-proven oil and natural gas reserves—about ten percent of the world’s known petroleum—are located in onshore fields north of the Arctic Circle. 22Kenneth J. Bird et al., U.S. Geological Surv., Circum-Arctic Resources Appraisal: Estimates of Undiscovered Oil and Gas North of the Arctic Circle 1 (2008). As global reserves dwindle (leading to ongoing predictions of impending “peak oil” 23Roger Parloff, Peter Thiel: Peak Oil Lives!, Fortune (Oct. 24, 2014, 7:00 AM), http://fortune.com/2014/10/24/peter-thiel-peak-oil-lives/. —the point at which oil demand eclipses global supplies), a new “Arctic Gold Rush” 24See generally Roger Howard, The Arctic Gold Rush: The New Race for Tomorrow’s Natural Resources (2009). is underway to exploit these once-frozen resource deposits. 25Andrew Critchlow, Arctic Drilling is Inevitable: If We Don’t Find Oil in the Ice, Then Russia Will, Telegraph (Sept. 7, 2014, 8:57 PM), http://www.telegraph.co.uk/finance/newsbysector/energy/11080635/Arctic-drilling-is-inevitable-if-we-dont-find-oil-in-the-ice-then-Russia-will.html. See, e.g., Atle Staalesen, Arctic Petroleum Year 2030, Barents Observer (Mar. 8, 2011), http://barentsobserver.com/en/sections/energy/arctic-petroleum-year-2030 (explaining that by 2030 Russian oil company Gazprom “intends to produce an annual 200 billion cubic meters of gas and 10 million tons of oil” in the Arctic).

Arctic warming is also leading to increased shipping activity in the region. Compared with traditional routes navigating the Suez and Panama Canals, newly accessible trans-Arctic shipping lanes are significantly shorter, offering reduced transit times and lower fuel costs. For example, the Northern Sea Route, which runs along Russia’s Arctic coastline, cuts the distance from China to Northern Europe via the Suez Canal by forty percent. 26Desmond Upcraft, Arctic Transit: Northern Sea Route, Royal Belgian Inst. of Marine Eng’rs, http://www.gallois.be/ggmagazine_2013/gg_02_03_2013_90.pdf (last visited Oct. 1, 2015). Similarly, the Northwest Passage, made up of seven possible routes weaving through Canada’s high Arctic Archipelago, 27Andrea Charron, The Northwest Passage Shipping Channel: Sovereignty First and Foremost and Sovereignty to the Side, 7 J. Mil. & Strategic Stud. 1, 1 (2005). provides a forty percent shortcut between the Pacific and Atlantic Oceans over the Panama Canal route. 28Becky Oskin, Cargo Ship Makes 1st-Ever Solo Trip Through Northwest Passage, Live Sci. (Oct. 1, 2014, 3:52 PM), http://www.livescience.com/48105-cargo-ship-solos-northwest-passage.html. A third Transpolar Sea Route through the center of the Arctic Ocean could cut an additional twenty percent off transit time from both of these routes; however, this route will not be navigable until around 2050 when the sea ice at the North Pole melts to sufficiently thin levels for “icebreakers to carve a straight path between the Pacific and Atlantic Oceans.” 29Emma Innes, By 2050 the Arctic Ice Sheet Will be so Thin that Ships Could be Sailing Across the North Pole, Experts Predict, Daily Mail (Mar. 4, 2013, 3:04 PM), http://www.dailymail.co.uk/sciencetech/article-2288031/By-2050-Arctic-ice-sheet-ships-sailing-North-Pole-experts-predict.html.

To be sure, commercial traffic through the Arctic has increased markedly in recent years as warming makes shipping more technically and economically viable. Since 2010, the Northern Sea Route has been consistently ice-free during the late summer months each year, opening for six weeks in 2014. 30 Ice Experts Review Northern Sea Route, Mar. Exec. (Oct. 28, 2014, 10:35 PM), http://www.maritime-executive.com/article/Ice-Experts-Review-Northern-Sea-Route-2014-10-28 [hereinafter Ice Experts]. Transits have significantly increased over this period: whereas just four commercial vessels navigated the Northern Sea Route in 2010, 31Trude Petterson, Slow Start on the Northern Sea Route, Barents Observer (Aug. 27, 2012), http://barentsobserver.com/en/arctic/slow-start-northern-sea-route-27-08. seventy-one made the trip in 2013 (a fifty-four percent increase over 2012). 32Kathrin Keil, Evaluation of the Arctic Shipping Season 2013, Arctic Inst. (Jan. 13, 2014), http://www.thearcticinstitute.org/2014/01/evaluation-of-arctic-shipping-season.html. See also Lucy H. London, LNG Carrier Lined up for Northern Sea Route Transit, TradeWinds (Sept. 5, 2014), http://www.tradewindsnews.com/weekly/344070/LNG-carrier-lined-up-for-Northern-Sea-Route-transit (stating that in 2014, Russia received more than 604 applications to sail the route, approving 568 of those applications). Total cargo volume has likewise increased, rising from 1.26 million tons in 2012 to 1.36 million in 2013; 33Keil, supra note 32. by 2020, that figure could reach sixty-five million tons and by 2030 it could rise to 120 million. 34Id. Long-term climate forecasts tend to support these estimates: by mid-century, “most common open-water ships will be able, without the help of icebreakers, to cross the Northern Sea Route.” 35Innes, supra note 29. With this in mind, Russian officials have argued that the Northern Sea Route will soon “rival traditional trade lanes in service fees, security and quality.” 36Gleb Bryanski, Russia’s Putin Says Arctic Trade Route to Rival Suez, Reuters (Sept. 22, 2011, 4:04 PM), http://ca.reuters.com/article/topNews/idCATRE78L5TC20110922. Global shipping companies appear to agree somewhat with this assessment. In 2014, Russia received a record 604 applications to sail the route 37London, supra note 32. (up from 421 in 2013), 38Bob Weber, More Northwest Passage Travel Planned by Danish Shipper, Canadian Press (Jan. 3, 2014, 7:52 AM), http://www.cbc.ca/news/canada/north/more-northwest-passage-travel-planned-by-danish-shipper-1.2482731. indicating the shipping industry’s increasing “expectations for higher profit margins” by utilizing the shortcut. 39Ice Experts, supra note 30.

Across the Arctic Ocean in the Canadian Archipelago, the Northwest Passage is also experiencing increased traffic, albeit at a more modest rate. From 1903 to the end of the 2014 shipping season, a total of 220 vessels sailed the whole length of the passage. 40R. K. Headland, Scott Polar Res. Inst., Transits of the Northwest Passage to the End of the 2014 Navigation Season 1 (2014), http://www.americanpolar.org/wp-content/uploads/2014/10/NWP-2014-X-5-layout-for-PDF.pdf. Note that this only accounts for complete transits of the Northwest Passage; “incomplete transits are too numerous to record.” Id. at 11. Nearly half (109) of those voyages occurred after 2007 41Id. at 8. when overall Arctic sea ice coverage melted to a record-low level 42Viñas, supra note 13. and the passage first opened up to shipping in a “viable way.” 43Ker Than, Arctic Meltdown Opens Fabled Northwest Passage, Live Sci. (Sept. 14, 2007, 10:59 AM), http://www.livescience.com/1884-arctic-meltdown-opens-fabled-northwest-passage.html. However, even with less ice clogging the route and overall transits on the rise, commercial voyages remain relatively infrequent. Since 1903, just four tankers have made the trip, including one in 2011 and another in 2012. 44Weber, supra note 38. Moreover, it was not until 2013 that a bulk carrier first navigated the passage, even then requiring an icebreaker escort. 45Headland, supra note 40, at 10. Various factors explain this limited commercial traffic: parts of the route are shallow; Canada has not prioritized infrastructure development in the passage; and ice conditions in the passage remain unpredictable. 46See Paul Waldie, A Reality Check on the Northwest Passage ‘boom’, Globe & Mail (Jan. 7, 2014), http://www.theglobeandmail.com/report-on-business/breakthrough/will-cold-dark-northwest-passage-see-more-ships/article16231502/. This latter point is particularly instructive. For example, 2014 was the first time in five years that the passage did not fully open 47Ice Experts, supra note 30. as parts of the route were blocked by thick, hazardous multi-year ice. 48See Ollie Williams, Arctic Ambition: The Race to Sail the Northwest Passage Heats Up, CNN (Sept. 8, 2014, 1:03 PM), http://edition.cnn.com/2014/09/08/sport/arctic-sailing-northwest-passage/. Interestingly, however, 2014 was also the first time that a cargo ship successfully navigated the entire Northwest Passage without an icebreaker escort. 49Jeremy Plester, Events That Mark Arctic Warming, Guardian (Oct. 26, 2014), http://www.theguardian.com/news/2014/oct/26/weatherwatch-arctic-warming-northwest-passage-siberia. By mid-century, this could be a regular occurrence as the melting ice yields to navigation by solo ice-strengthened ships and even some ordinary vessels. 50Innes, supra note 29.

In sum, climate change has transformed the Arctic from a frozen wasteland into the “last global frontier” 51Secretary Kerry Announces, supra note 1. of economic opportunity. While newly-unlocked Arctic hydrocarbons will help alleviate global energy needs, trans-Arctic sea lanes will impact global trade patterns as shipping through the region becomes more cost-effective. Still, overall economic activity in the Arctic is fairly limited at this point, 52See Keil, supra note 32 (showing that while shipping through the Northern Sea Route is on an upward trend, it accounts for a very small percentage of global trade and compares the seventy-one transits in 2013 with roughly 18,000 annual transits through the Suez Canal). and will remain that way for some time due to residual challenges associated with operating in the region. 53See Alister Doyle, High Arctic Costs Deter Business Despite Thaw, Reuters (Oct. 27, 2014, 9:03 AM), http://www.reuters.com/article/2014/10/27/business-arctic-idUSL6N0SJ3YW20141027 (stating that other factors such as falling global oil prices are also leading businesses to look elsewhere for cheaper drilling opportunities). See also Steve Banker, Logistics Impacts From Widening the Panama Canal, Forbes (Sept. 6, 2013, 9:22 AM), http://www.forbes.com/sites/stevebanker/2013/09/06/logistics-impacts-from-widening-the-panama-canal/ (stating that the current Panama Canal widening project will help accommodate more traffic through the route, particularly a “new class of supersized cargo ships . . . that are more than twice as big as the historical cargo shipping fleet.”). The benefits of Arctic shipping, for example, are offset by the need for ice-hardened vessels and icebreaker escorts, the “unpredictability of the ice,” and the “shortness of the shipping season.” 54Short and Sharp, Economist (June 16, 2012), http://www.economist.com/node/21556803. To ensure that shipping through the Arctic is safe and economically viable, the Arctic states must develop “adequate infrastructure, such as icebreakers, ice-class vessels, technical services, emergency response mechanisms and search and rescue facilities.” 55Vijay Sakhuja, Russia Commits to Building Northern Sea Route Infrastructure, Valdai Club (Aug. 8, 2014, 4:05 PM), http://valdaiclub.com/economy/71280.html. Russia has taken the lead in this regard, building several new icebreakers. See New Russian Nuclear-Powered Icebreakers Named ‘Arctic,’ ‘Siberia’ and ‘Ural’, Sputnik News (Aug. 7, 2014, 4:23 PM), http://en.ria.ru/russia/20140807/191814028/New-Russian-Nuclear-Powered-Icebreakers-Named-Arctic-Siberia-and.html. Russia has also started building military bases in its Arctic territory. Alexey Eremenko, Russia Starts Building Military Bases in the Arctic, Moscow Times (Sept. 8, 2014), http://www.themoscowtimes.com/business/article/russia-starts-building-military-bases-in-the-arctic/506650.html. At the same time, Russia’s overall Arctic strategy generally emphasizes the need for additional infrastructure investments. See Sakhuja, supra note 55. Only then will the Arctic become a key locus of global economic activity.

B. Geopolitics and Distant Interests in the High North

The Arctic Circle accounts for just six percent of the world’s surface area, 56Philip Budzik, U.S. Energy Info. Admin., Arctic Oil and Natural Gas Potential 1 (2009), http://www.eia.gov/oiaf/analysispaper/arctic/pdf/arctic_oil.pdf. yet it is rapidly becoming “one of the most hotly contested territories on Earth.” 57Ty McCormick, Arctic Sovereignty: A Short History, Foreign Pol’y (May 7, 2014), http://www.foreignpolicy.com/articles/2014/05/07/anthropology_of_an_idea_arctic_sovereignty_oil. Unlike the Antarctic where territorial claims are effectively barred by the 1959 Antarctic Treaty, 58See Antarctic Treaty art. 4, Dec. 1, 1959, 402 U.N.T.S. 71. the Arctic region is “up for grabs” under international law; 59McCormick, supra note 57. as the Arctic thaws, circumpolar actors are therefore “racing to carve up the region” and claim its untapped riches. 60Scott G. Borgerson, Arctic Meltdown: The Economic and Security Implications of Global Warming, Foreign Aff., Mar.-Apr. 2008, at 64. See generally Michael Byers, Who Owns the Arctic? Understanding Sovereignty Disputes in the North (2010) [hereinafter Byers, Who Owns the Arctic?]. Until recently, this “scramble for the Arctic” 61See Jayaseelan Naidoo, The Scramble for the Arctic and the Dangers of Russia’s Race for Oil, Huffington Post (Nov. 6, 2013, 2:00 PM), http://www.huffingtonpost.com/jayaseelan-naidoo/the-scramble-for-the-arctic_b_4223661.html. posed only limited challenges for regional governance. Territorial disputes arising over the last few decades, for example, were resolved via bilateral cooperation, not conflict. 62Michael Byers, International Law and the Arctic 6 (2013) [hereinafter Byers, International Law and the Arctic]. More recently, however, the littoral Arctic states have begun staking overlapping claims to the center of the Arctic Ocean 63Denmark Challenges Russia and Canada Over North Pole, BBC News (Dec. 15, 2014), http://www.bbc.com/news/world-europe-30481309. and have grown increasingly assertive with respect to their sovereignty in the region. 64See Tom Parfitt, Russia Plants Flag on North Pole Seabed, Guardian (Aug. 2, 2007), http://www.theguardian.com/world/2007/aug/02/russia.arctic. In 2007, Russia planted a flag at the North Pole, id., and resumed Cold War-era strategic bomber flights in the Arctic, see Russia Restarts Cold War Patrols, BBC News (Aug. 17, 2007), http://news.bbc.co.uk/2/hi/europe/6950986.stm. Russia has reopened Arctic military bases, see Karl Ritter, Cold War-Style Spy Games Return to Melting Arctic, Assoc. Press (June 11, 2014), http://bigstory.ap.org/article/cold-war-style-spy-games-return-melting-arctic; is adding new nuclear attack submarines to its Northern Fleet, see Matthew Bodner, Russia's Northern Fleet Gets New Nuclear Attack Submarine, Moscow Times (June 17, 2014), http://www.themoscowtimes.com/business/article/russia-s-northern-fleet-gets-new-nuclear-attack-submarine/502078.html; and plans to “deploy troops along the entire length of the Arctic,” see Thomas Nilsen, Russia Says No Need for NATO in Arctic, Expands Own Military Presence, Barents Observer (Oct. 22, 2014), http://barentsobserver.com/en/security/2014/10/russia-says-no-need-nato-arctic-expands-own-military-presence-22-10. For its part, Canada has bolstered its Arctic military forces, see Allan Woods, Canada Looking at Building Military Bases in Arctic, Star (July 14, 2011), http://www.thestar.com/news/canada/2011/07/14/star_exclusive_canada_looking_at_building_military_bases_in_arctic.html, and staked its own claim to the North Pole, see Jenny Johnson, Who Owns the North Pole? Debate Heats Up as Climate Change Transforms Arctic, Bloomberg (Apr. 4, 2014, 11:08 AM), http://www.bloomberg.com/news/2014-04-04/who-owns-the-north-pole-debate-heats-up-as-climate-change-transforms-arctic.html (arguing that the area “is central to defending [its] Arctic sovereignty”). But see Michael Byers, The North Pole is a Distraction, Globe & Mail (Aug. 20, 2014, 3:00 AM), http://www.theglobeandmail.com/globe-debate/the-north-pole-is-a-distraction/article20126915/ [hereinafter Byers, The North Pole is a Distraction]. As a result, geopolitical tensions among the Arctic states have escalated, fueling speculation of impending conflict in the High North. 65See, e.g., Ben Makuch, Cold War Games: Russia’s Ramping Up Its Military Presence in the Arctic, Vice Motherboard (Sept. 25, 2014, 10:40 AM), http://motherboard.vice.com/read/cold-war-games-russias-ramping-up-its-military-presence-in-the-arctic.

Regional stakeholders are not, however, the only players in the emerging Arctic “Great Game.” 66McCormick, supra note 57. Over the last decade, accelerating climate change has catalyzed the “globalization” of the Arctic as an “issue area;” 67See Donald R. Rothwell, The Law of the Sea and Arctic Governance, 107 Am. Soc’y Int’l L. Proc. 271, 273 (2013). as the Arctic melts, non-Arctic states with economic interests in the region are also competing for a say in the development of the Arctic. In short, the Arctic “is evolving from a regional frozen backwater into a global hot issue.” 68Alexander Stubb, Minister for Foreign Affairs of Fin., A New Era and Finland’s Arctic Policy, Keynote Speech at the 20th Anniversary Seminar of the Arctic Center (Sept. 29, 2009), http://www.formin.fi/public/default.aspx?contentid=171839.

Although numerous non-Arctic states have expressed their intent to participate in Arctic affairs, all are motivated by similar interests in the warming Arctic; namely, emergent resource exploitation and trans-Arctic shipping opportunities. Detailed analyses of each individual Arctic program are therefore unnecessary. Rather, this section will proceed with a case study of China’s extensive Arctic policies, which are emblematic of its non-Arctic peers’ aspirations and strategic goals in the Arctic region.

1. The People’s Republic of China: The Dragon Heads North

a. China’s Arctic Interests

By virtually every measure, 69Paul C. Avey et al., The Ivory Tower Survey: How IR Scholars See the World, Foreign Pol’y (Jan. 3, 2012), http://foreignpolicy.com/2012/01/03/the-ivory-tower-survey/. Academics and policymakers alike continue to view the rising power of China as the biggest foreign policy issue facing the U.S. Id. China’s meteoric ascendance to economic dominance over the last few decades has been the defining narrative of international relations. 70See, e.g., Charles Glaser, Will China’s Rise Lead to War? Why Realism Does Not Mean Pessimism, Foreign Aff., Mar.-Apr. 2011, at 80 (noting that the “rise of China will likely be the most important international relations story of the twenty-first century”). China’s economic development has sparked endless debate as to whether China can rise peacefully to great power status. See, e.g., John J. Mearsheimer, The Gathering Storm: China’s Challenge to US Power in Asia, 3 Chinese J. Int’L Pol. 381, 381 (2010). Mearsheimer, the architect of the “offensive realism” school of thought in international relations, is one of the most vocal scholars predicting that “China cannot rise peacefully.” Id. at 382. In any event, many scholars view China’s rise to superpower status as an inevitability. See, e.g., Arvind Subramanian, The Inevitable Superpower: Why China’s Dominance is a Sure Thing, Foreign Aff., Sept.-Oct. 2011, at 67. Since instituting market reforms in 1978, China’s economic growth has generally outpaced the rest of the world, 71China Country Profile—Overview, BBC News (Mar. 13, 2015), http://www.bbc.com/news/world-asia-pacific-13017877. with annual Gross Domestic Product (GDP) growth rates averaging ten percent. 72China Overview, World Bank (Mar. 25, 2015), http://www.worldbank.org/en/country/china/overview. Although this rate has slowed somewhat in recent years, 73Mark Magnier, Lingling Wei & Ian Talley, China Economic Growth is Slowest in Decades, Wall Street J. (Jan. 19, 2015), http://www.wsj.com/articles/china-gdp-growth-is-slowest-in-24-years-1421719453 (stating that in 2013, China’s economy grew at a rate of 7.7%, while in 2014 the economy slowed to 7.4%). Some analysts argue that “the underlying causes for this slowdown are global, not China specific.” Lin Yifu, Western Analysts Are Wrong: China’s Economy is Going Strong, Huffington Post (Feb. 10, 2014), http://www.huffingtonpost.com/lin-yifu/western-analysts-china-economy_b_4762222.html. In any event, China is now the world’s second-fastest growing economy, lagging only behind India. Eric Bellman, India Passes China to Become Fastest-Growing Economy, Wall Street J. (Feb. 11, 2015), http://blogs.wsj.com/indiarealtime/2015/02/11/its-official-india-has-passed-china-to-become-the-worlds-fastest-growing-economy/. China’s economy remains strong 74Michael Schuman, China’s Economy Continues to Defy Gravity. That May Not Be a Good Thing, Time (June 16, 2014), http://time.com/2990640/chinas-economy-continues-to-defy-gravity-that-may-not-be-a-good-thing/. and is on course to sustaining eight percent GDP growth rates for another ten to fifteen years or longer. 75Yifu, supra note 73. Indeed, in terms of purchasing power parity, China is now the world’s largest economy, with an estimated GDP of $17.6 trillion (compared with $17.4 trillion for the U.S.). 76Brett Arends, It’s Official: America is Now No. 2, Mkt. Watch (Dec. 4, 2014, 11:18 AM), http://www.marketwatch.com/story/its-official-america-is-now-no-2-2014-12-04.

Maintaining this economic momentum, however, “poses a considerable strategic problem for the Chinese Communist Party (CCP).” 77Rainwater, supra note 4, at 64. Namely, over the last two decades, China’s robust economic performance has resulted in massive dependence on foreign resource inputs. 78China Overview, U.S. Energy Info. Admin., http://www.eia.gov/countries/cab.cfm?fips=CH (last updated Feb. 4, 2014). Up until the early 1990s, China was a net oil exporter; 79Id. today, however, China is the world’s largest net importer of crude oil and other liquids. 80Candace Dunn, China is Now the World’s Largest Net Importer of Petroleum and Other Liquid Fuels, U.S. Energy Info. Admin. (Mar. 24, 2014), http://www.eia.gov/todayinenergy/detail.cfm?id=15531#. China’s rising oil consumption alone “accounted for one-third of the world's oil consumption growth in 2013.” China Overview, supra note 78. In terms of demand, China is now the second-largest oil consumer and the largest overall energy consumer in the world. 81China Overview, supra note 78. To be sure, China has taken steps to control the rapid growth of its foreign oil dependence. For example, China’s 12th Five-Year Plan includes a measure to “cap oil imports at 61 percent by the end of 2015,” which in 2012 amounted to fifty-seven percent of its needs. 82Michael Barris, China’s Oil Demand is Growing, US Agency Says, China Daily (Feb. 6, 2014, 12:52 PM), http://usa.chinadaily.com.cn/epaper/2014-02/06/content_17269251.htm. Yet China’s breakneck economic growth requires exponential amounts of energy, and attempts to cap total imports are unlikely to be successful in the immediate term. By 2020, the U.S. Energy Information Institute projects that China will import more than sixty-six percent of its total oil; seventy-two percent will be imported by 2040, as demand is expected to outpace domestic crude supply. 83China Overview, supra note 78.

Given this rising foreign energy dependence, the prospect of vast hydrocarbon deposits in the Arctic is a natural draw for the CCP. 84See discussion supra Part I.A. Indeed, China is already strengthening trade relations with the Arctic states in order to secure long-term access to Arctic resources. 85See Rainwater, supra note 4, at 72–73. In April 2013, for example, China signed a free trade deal with Iceland, the “first of its kind between China and a European country.” 86Chen Zhi, Xinhua Insight: Arctic Council Observer Status Guarantees China’s Legitimate Rights, Xinhuanet (May 16, 2013, 9:21 AM), http://news.xinhuanet.com/english/indepth/2013-05/16/c_132387742.htm. China is also investing in infrastructure and offshore energy projects in the Arctic. In 2013, China paid Rosneft—Russia’s state-owned oil company—$60 billion to develop oil fields in the Arctic Ocean. 87Michael Byers, China Could be the Future of Arctic Oil, Al Jazeera (Aug. 22, 2013, 2:09 PM), http://www.aljazeera.com/indepth/opinion/2013/08/2013821135829162420.html [hereinafter Byers, China Could be the Future of Arctic Oil]. Since resource extraction in the Arctic is expensive and difficult, such investments can help position China as the “biggest player in [the]Arctic.” 88Id.

Aside from access to new resource deposits, “the Arctic offers China diversity, security and savings.” 89Andreas Kuersten, Russian Sanctions, China and the Arctic, Diplomat (Jan. 3, 2015), http://thediplomat.com/2015/01/russian-sanctions-china-and-the-arctic/. China currently imports most of its energy from the Middle East, with nineteen percent of its crude oil supplied by Saudi Arabia in 2013. 90Dunn, supra note 80. Angola is the second-largest source, together with Saudi Arabia providing thirty-three percent of China’s total crude oil imports. 91China Overview, supra note 78. After that, key suppliers include Russia, Oman, Iran, Iraq, and Venezuela. 92Id. Although diversified, these sources constitute a perennial strategic problem for the CCP: as a symptom of its foreign energy reliance, China is now dependent on exporting nations located in politically volatile regions; as a result, China’s energy security is constantly at risk. 93See Rainwater, supra note 4, at 65. For example, although Sudan and South Sudan were once major suppliers, political conflicts between the two nations over oil resources caused production to shut down in 2012. 94Tore Knos & Michele Zebich-Knos, South Sudan: Oil, the Environment and Border Conflicts, Nat’l Geographic (Mar. 22, 2013), http://voices.nationalgeographic.com/2013/02/22/86550/. The Arctic, by contrast, is politically stable; China is thus looking north to further diversify its suppliers and ensure the security of its energy lifeline.

In addition to volatility at the source, China worries about the vulnerability of its supplies during transit. Two critical maritime “choke points” are of vital concern: the Strait of Hormuz, leading out of the Persian Gulf, and the Strait of Malacca, linking the Indian Ocean and South China Sea. 95World Oil Transit Chokepoints, U.S. Energy Info. Admin., http://www.eia.gov/beta/international/regions-topics.cfm?RegionTopicID=WOTC (last updated Nov. 10, 2014). Around fifty percent of China’s oil imports pass through the Strait of Hormuz, 96Annika Folkeson, Part 1: Key Facts on Strait of Hormuz, Iran Primer (Jan. 11, 2012, 9:20 AM), http://iranprimer.usip.org/blog/2012/jan/11/part-1-key-facts-strait-hormuz. which Iran has occasionally threatened to close to “deny Persian Gulf oil to the global market.” 97Rosemary A. Kelanic, China’s Changing Oil Calculus, Nat’l Int. (Nov. 12, 2013), http://nationalinterest.org/commentary/chinas-changing-oil-calculus-9385. The Strait of Malacca, however, is even more troubling. Fully eighty percent of China’s oil transits this waterway, which is just two miles wide at its narrowest opening (compared with twenty miles in the Strait of Hormuz). 98Id. China’s so-called “Malacca Dilemma” is that, with limited power-projection capabilities, its energy supply-line is vulnerable to a hostile shutdown in the Strait, particularly by the Indian Navy. 99Shashank Joshi, Can India Blockade China, Diplomat (Aug. 12, 2013), http://thediplomat.com/2013/08/can-india-blockade-china/. This fear is compounded by growing threats of piracy in the Strait—from 2009 to 2013, incidents increased by 200% (from 42 to 125), 100Ted Kemp, Crime on the High Seas: The World’s Most Pirated Waters, CNBC (Feb. 15, 2015), http://www.cnbc.com/id/101969104. making the Strait of Malacca the world’s “piracy hotspot.” 101Patrick Winn, The World Has a New Piracy Hotspot, Global Post (Dec. 11, 2014, 10:13 AM), http://www.globalpost.com/dispatch/news/regions/asia-pacific/indonesia/140326/malacca-strait-piracy-hotspot. In light of these vulnerabilities, trans-Arctic shipping routes provide an attractive, secure alternative for China’s maritime trade. 102But see Byers, International Law and the Arctic, supra note 62, at 261. Byers notes that non-state actors such as illegal immigrants and terrorists pose the greatest security threat in the Arctic, as they might “take advantage of ice-free waters to move contraband, people, or WMDs into North America or Europe, or between the Pacific and Atlantic Oceans.” Id. However, these are not significant threats at the present. See id.

Economic factors provide additional incentives for trade diversion through the Arctic. As discussed above, Arctic straits are significantly shorter than traditional routes. 103See discussion supra Part I.A. For example, the distance from Shanghai to Hamburg navigating the Northern Sea Route is roughly thirty percent shorter than the route via the Suez Canal. 104Jonathan Masters, The Thawing Arctic: Risks and Opportunities, Council on Foreign Rel. (Dec. 16, 2013), http://www.cfr.org/arctic/thawing-arctic-risks-opportunities/p32082. Such a reduction in transit times and distance could result in substantial fuel savings and “increase China’s export potential to Europe.” 105Kuersten, supra note 89. To realize these benefits, China is already investing more heavily in Arctic shipping research than even the U.S. 106Darryl D’monte, China Spending More on Arctic Sea Route Research Than US, Bus. Standard (Mar. 14, 2013), http://www.business-standard.com/article/economy-policy/china-spending-more-on-arctic-sea-route-research-than-us-113031400028_1.html. Chinese analysts predict that, by 2020, five to fifteen percent of China’s global trade, primarily container traffic, could use the Northern Sea Route. 107Trude Pettersen, China Starts Commercial Use of Northern Sea Route, Barents Observer (Mar. 14, 2013), http://barentsobserver.com/en/arctic/2013/03/china-starts-commercial-use-northern-sea-route-14-03. And by 2030, up to half of the containers shipped between East Asia and Northern Europe could be diverted north through the Arctic. 108D’monte, supra note 106. Whatever the accuracy of these predictions, China certainly anticipates realizing some economic benefit from Arctic shipping.

b. China’s Arctic Strategy

Notwithstanding its status as a non-Arctic state, China has pursued a robust foreign policy line towards the Arctic region since the 1990s. 109Hugh Stephens, Breaking the Ice: China’s Emerging Arctic Strategy, Diplomat (Aug. 27, 2012), http://thediplomat.com/2012/08/breaking-the-ice-chinas-emerging-arctic-strategy/. For a lengthier treatment of China’s Arctic strategy, see generally Rainwater, supra note 4. Thus far, China’s Arctic strategy has primarily emphasized scientific research and diplomacy. 110Rainwater, supra note 4, at 71. China currently spends around $60 million annually on polar research, including $15 million on yearly expeditions to the Antarctic and Arctic. 111Anne-Marie Brady, Polar Stakes: China’s Polar Activities as a Benchmark for Intentions, Jamestown (July 19, 2012, 3:34 PM), http://www.jamestown.org/single/?no_cache=1&tx_ttnews%5Btt_news%5D=39647&tx_ttnews%5BbackPid%5D=7&cHash=99f7e4c63e504c25e7be08acfda148db#.VFhxa_nF98F. Notably, China operates the “world’s largest non-nuclear icebreaker,” 112Paul McLeary, The Arctic: China Opens a New Strategic Front, World Pol. Rev. (May 19, 2010), http://www.worldpoliticsreview.com/articles/5558/the-arctic-china-opens-a-new-strategic-front. and has conducted six Arctic research expeditions 113Aboard Xuelong, Arctic Ice Shrinkage Alarms Returning Chinese Expedition, Xinhuanet (Sept. 22, 2014, 4:36 PM), http://news.xinhuanet.com/english/china/2014-09/22/c_133662994.htm. aboard the vessel since purchasing it from Ukraine in 1993. 114McLeary, supra note 112. By 2016, China plans to build a second, more advanced icebreaker worth $613 million to further enhance its “polar research capability.” 115Wang Qian, New Icebreaker Planned by 2016: Officials, China Daily (Jan. 6, 2014), http://www.chinadaily.com.cn/china/2014-01/06/content_17216579.htm. In addition to these “mobile research station[s],” 116Id. China also maintains a research base in Norway’s Svalbard Archipelago 117China Launches Arctic Station, Xinhuanet (July 28, 2004, 7:49 PM), http://news.xinhuanet.com/english/2004-07/28/content_1666797.htm. (north of the Arctic Circle) as well as a “China-Nordic Arctic Research Center” in Shanghai. 118Thomas Nilsen, China–Nordic Arctic Research Center Opens in Shanghai, Barents Observer (Dec. 12, 2013), http://barentsobserver.com/en/arctic/2013/12/china-nordic-arctic-research-center-opens-shanghai-12-12. With these extensive research capabilities, China intends to assist not only in its own “economic and social development, but also [to] help[] deepen humanity’s knowledge of climate change.” 119Zhang Yunlong & Ren Qinqin, China Defends Arctic Research, Xinhuanet (Jan. 31, 2012, 10:58 PM), http://news.xinhuanet.com/english/china/2012-01/31/c_122637030.htm.

While China’s polar research interests are no doubt genuine, 120For example, China fears that Arctic warming will “turn the Arctic ecosystem upside down, affecting many animals that are adapted to a life with sea ice.” Stefan Rahmstorf, Silent Warning That Must be Heeded, China Daily (Oct. 21, 2011, 8:05 AM), http://usa.chinadaily.com.cn/opinion/2011-10/21/content_13945874.htm. These conditions will in turn “amplify global warming” and cause “sea levels worldwide [to] rise.” Id. these initiatives suggest that “Beijing is eager to camouflage its true interests in the region.” 121Arthur Guschin, Understanding China’s Arctic Policies, Diplomat (Nov. 14, 2013), http://thediplomat.com/2013/11/understanding-chinas-arctic-policies/. Publicly, China represents its sense of entitlement to Arctic opportunities by depicting the Arctic as an “international zone where changes must make sense for all countries.” 122Id. In 2009, for example, China’s Assistant Minister of Foreign Affairs cautioned that Arctic countries should “ensure a balance of coastal countries’ interests and the common interests of the international community.” 123Byers, international law and the arctic, supra note 62, at 125. More recently, Chinese officials have also begun to refer to China as an “Arctic stakeholder” 124Kit Dawnay, China’s Ambitions in the Arctic, Current Intelligence (Mar. 19, 2013, 9:00 AM), http://www.currentintelligence.net/analysis/2013/3/19/chinas-ambitions-in-the-arctic.html. and a “near-Arctic state” 125Johan Nylander, China a ‘Near-Arctic State’: Swedish Think Tank, Swedish Wire (May 11, 2012, 4:35 AM), http://www.swedishwire.com/business/13827-china-a-near-arctic-state-swedish-think-tank. —remarkable assertions considering that the shortest distance between China’s northern border and the Arctic Circle is 900 miles. 126Gwynn Guilford, What is China’s Arctic Game Plan?, Atlantic (May 16, 2013), http://www.theatlantic.com/china/archive/2013/05/what-is-chinas-arctic-game-plan/275894/. Nevertheless, China contends that its proximity to the Arctic means that it is directly affected by “natural changes . . . in the Arctic, as reflected in China’s climate, ecological environment, [and] agricultural production.” 127China Seeks Pragmatic Cooperation with Arctic Countries, Xinhuanet (Nov. 2, 2014), http://news.xinhuanet.com/english/china/2014-11/02/c_133759443.htm. As such, China believes that it is entitled to participate in Arctic affairs.

Still, despite this sometimes brazen rhetoric, China’s Arctic strategy privileges soft power and cooperation over conflict. 128See generally Rainwater, supra note 4. Over the last few years, China has actively cultivated bilateral relations with the Arctic states in order to position itself as an “indispensable” 129Gordon G. Chang, China’s Arctic Play, Diplomat (Mar. 9, 2010), http://thediplomat.com/2010/03/chinas-arctic-play/. In 2010, Chinese Rear Admiral Yin Zhuo famously pronounced that “China must play an indispensable role in Arctic exploration as we have one-fifth of the world’s population.” Id. Arctic player. For example, in the wake of the 2008 financial crisis, China supplied economic aid to Iceland that proved critical to its recovery. 130Andrew Ward, Iceland Secures China Currency Swap Deal, Fin. Times (June 9, 2010, 10:45 PM), http://www.ft.com/intl/cms/s/0/81d100de-73fb-11df-87f5-00144feabdc0.html. China and Iceland subsequently signed a free trade deal, the first Sino-European agreement of its kind. 131Zhi, supra note 86. Meanwhile, China has invested substantial capital in Greenlandic resource projects, 132Martin Breum & Jorgen Chemnitz, No, Greenland Does Not Belong to China, N.Y. Times (Feb. 20, 2013), http://www.nytimes.com/2013/02/21/opinion/no-greenland-does-not-belong-to-china.html?_r=0. indirectly “courting Danish leaders.” 133Kuersten, supra note 89. As a result of these measures, Iceland and Denmark have grown “very supportive of China having a louder voice in Arctic affairs.” 134Id. Ultimately, this strategy resulted in all eight Arctic states endorsing China’s application for observer status at the Arctic Council, a central goal of the CCP. 135See discussion infra Part II.C.

In sum, China’s foreign policies towards the Arctic have proven effective in realizing its economic and strategic goals in the region thus far. As with all non-Arctic countries, however, China’s Arctic ambitions are limited by the international legal regimes and norms regulating the Arctic region. The following Part will analyze those legal arrangements, and Part III will present recommendations for Arctic governance reform in order to better incorporate the interests of non-Arctic states in the High North.

II. Arctic Governance: Distant Participants in a Regional Regime

A. Introduction

No single comprehensive legal regime currently governs the Arctic region. 136Lilly Weidemann, International Governance of the Arctic Marine Environment: With Particular Emphasis on High Seas Fisheries 228 (2014). By contrast, the Antarctic is comprehensively regulated under the 1959 Antarctic Treaty. Id. Rather, “the regulatory picture [concerning the Arctic] is a diffuse one,” 137Davor Vidas, The Polar Marine Environment in Regional Cooperation, in Protecting the Polar Marine Environment: Law and Policy for Pollution Prevention 102 (Davor Vidas ed., 2000). consisting of a “patchwork of international treaties . . . various regional and sub-regional agreements, national laws and soft-law agreements.” 138Weidemann, supra note 136. In this multi-layered framework, domestic legislation plays a particularly significant role, since much of the region “falls within the scope of national sovereignty of the Arctic nations.” 139Id. at 45. Beyond that, a handful of governance arrangements predominate in regulating the Arctic region.

First, UNCLOS regulates “activities on, over, and beneath the Arctic [Ocean].” 140The Emerging Arctic, Council on Foreign Rel., http://www.cfr.org/polarregions/emergingarctic/p32620#!/ (last visited Feb. 16, 2015). As with all the world’s oceans, this treaty establishes navigation rights through Arctic waterways and sets guidelines for demarcating the maritime boundaries of the Arctic states. Second, the Arctic Council constitutes the “principle international forum for regional collaboration.” 141Id. The Council’s work spans a wide range of areas including scientific assessments, policy statements and recommendations, guidelines, best practices, and, more recently, binding Arctic instruments. 142Andrea Charron, Has the Arctic Council Become Too Big?, Int’l Rel. & Security Network (Aug. 15, 2014), http://www.isn.ethz.ch/Digital-Library/Articles/Detail/?id=182827. The Council is well-respected, and it is increasingly viewed as the most important political body in the region.

Given the primacy of these legal arrangements, this Part will analyze the extent to which they limit and/or expand the rights of non-Arctic states seeking to participate in Arctic affairs. From the outset, it is important to note that under the current legal regime, distant states possess very limited rights in the Arctic relative to regional ones. As the Arctic globalizes, however, this imbalance raises questions as to whether the current regional model of governance is “adequate,” or whether a more inclusive, international approach is now “necessary.” 143Rothwell, supra note 67, at 273. As argued below, the regional approach is no longer sufficient to address changing conditions in the Arctic; the Arctic legal regime should therefore be reformed to better incorporate the interests of non-Arctic states in the Arctic region.

B. The Law of the Sea Treaty

1. Solidifying the Hegemony of UNCLOS in the Arctic

Called the “constitution” and “Magna Charta” of the oceans, UNCLOS provides a “comprehensive framework for oceans governance.” 144Robert C. De Tolve, At What Cost? America’s UNCLOS Allergy in the Time of “Lawfare”, 61 Naval L. Rev. 1, 2 (2012). UNCLOS codifies “centuries of state practice and opinio juris.” Byers, international law and the arctic, supra note 62, at 6. Since opening for signature on December 10, 1982, 145UNCLOS, supra note 6. UNCLOS has succeeded in sustainably balancing the sovereign rights of littoral countries with the “traditional navigational freedoms guaranteed all nations.” 146De Tolve, supra note 144. To date, fully 167 countries have ratified UNCLOS, including seven of the eight circumpolar states. 147Chronological Lists of Ratifications of, Accessions and Successions to the Convention and the Related Agreements as at 3 October 2014, U.N. Division for Ocean Aff. & L. Sea, http://www.un.org/depts/los/reference_files/chronological_lists_of_ratifications.htm# (last updated Jan. 7, 2015). The final circumpolar country—the U.S.—“accepts the key provisions of UNCLOS as customary international law.” 148Byers, international law and the arctic, supra note 62, at 28. Interestingly, only one provision in the entire convention deals specifically with ice-covered regions. Article 234, or the “Arctic Article,” 149Stuart B. Kaye, Territorial Sea Baselines Along Ice Covered Coasts: International Practice and Limits of the Law of the Sea, 35 Ocean Dev. & Int’l L. 75, 95 n.7 (2004). permits “regulation for the prevention of pollution and safety of navigation in ice-covered areas;” 150Id. at 77. it does not, however, function to “clarify the status of ice.” 151Id. at 95 n.7. Still, the treaty’s various provisions apply normally in the Arctic Ocean as they do elsewhere, creating an expansive regulatory regime. 152See Byers, international law and the arctic, supra note 62, at 6.

In May 2008, the five littoral Arctic states (the “Arctic Five”)—Russia, Canada, Norway, Denmark and the U.S.—signed the “Ilulissat Declaration,” thereby reaffirming the primacy of UNCLOS as regulator of the Arctic Ocean. 153Arctic Ocean Conference, Ilulissat Declaration, 1–2 (May 28, 2008), http://www.oceanlaw.org/downloads/arctic/Ilulissat_Declaration.pdf. While no explicit reference is made to UNCLOS, the Declaration is “very precise” in referring to the law of the sea, 154Donald R. Rothwell, International Law and Arctic Shipping, 22 Mich. St. Int’l. L. Rev. 67, 72 (2013). noting that:

[A]n extensive international legal framework applies to the Arctic Ocean . . . [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. 155Ilulissat Declaration, supra note 153.

The Declaration concludes by observing that there is “no need to develop a new comprehensive legal regime to govern the Arctic Ocean.” 156Id. Thus, despite calls over the years for the creation of a new “Arctic treaty” similar to the Antarctic model, 157John B. Bellinger, Treaty on Ice, N.Y. Times (Jun. 23, 2008), http://www.nytimes.com/2008/06/23/opinion/23bellinger.html?_r=2&. the Declaration entrenches the authority of UNCLOS in the Arctic, while more generally affirming the Arctic Five’s commitment to the current multi-layered Arctic framework. 158See Ilulissat Declaration, supra note 153.

2. Territorial Provisions

For decades, UNCLOS has “played a central role in determining the boundaries between the maritime zones of adjacent coastal states”; the Arctic is no exception, with the same rules applying in the region as elsewhere in the world. 159Byers, international law and the arctic, supra note 62, at 6. Under UNCLOS, coastal Arctic states may claim sovereignty over territorial seas extending twelve nautical miles from shore. 160UNCLOS, supra note 6, art. 2. Within this band, coastal states can restrict foreign shipping and have “absolute rights” over living resources found in the water column (fish) and nonliving seabed resources (hydrocarbons). 161Byers, international law and the arctic, supra note 62, at 6. Further out, coastal states retain absolute rights over seabed resources and fisheries located within exclusive economic zones (EEZs) extending 200 nautical miles from shore, 162UNCLOS, supra note 6, art. 57. and seabed rights beyond 200 nautical miles where they can demonstrate that the seabed is a “natural prolongation of [their] land territory” (i.e., the “extended continental shelf”). 163Id. arts. 76–77. Only beyond the continental shelf are seabed resources considered the “common heritage of mankind,” equally open to exploration and exploitation by non-littoral and coastal nations alike. 164UNCLOS, supra note 6, pmbl.

Until recently, a small unclaimed “doughnut hole” at the center of the Arctic Ocean was thought to constitute this area beyond the sovereign jurisdictions of the Arctic countries. 165One analyst estimated that roughly eighty-eight percent of the Arctic seabed would likely be claimed by the circumpolar states. See Joseph Spears, The Snow Dragon Moves into the Arctic Ocean Basin, 11 China Brief 1, 12–13 (2011). One analyst even went so far as to argue that “[n]o country will ever ‘own’ the North Pole, which is located 400 miles to the north of any land.” 166Michael Byers, Rules for the North Pole, N.Y. Times (Aug. 18, 2011), http://www.nytimes.com/2011/08/19/opinion/19iht-edbyers19.html [hereinafter Byers, Rules for the North Pole]. As such, the central Arctic Ocean would “belong[] to humanity,” 167Id. and would be open to development by all states.

Contrary to these assertions, however, the littoral Arctic states have begun staking overlapping claims to the center of the Arctic. In late 2014, Denmark submitted an official claim to the U.N. Commission on the Limits of the Continental Shelf (CLCS) that includes “all of the North Pole and 895,000 sq km of the Arctic.” 168Richard Milne, Denmark’s Claim to North Pole Fans Geopolitical Rivalry, Fin. Times (Dec. 18, 2014, 6:29 PM), http://www.ft.com/intl/cms/s/0/49a5a1ca-85e3-11e4-b11b-00144feabdc0.html#axzz3P3558ktp. In preparation for its claim, Denmark “spent $55m and 12 years collecting data.” 169Id. Yet Denmark is not alone in claiming the Pole; Russia asserted jurisdiction over the area as early as 2001, although its initial claim was deemed to be “insufficient” by the CLCS. 170Johnson, supra note 64. Russia has since conducted extensive research to support an updated claim to the area, 171Id. which it is expected to submit soon. 172Milne, supra note 168. Further complicating affairs, Canada has also expressed its intention to claim the North Pole, 173Frozen Conflict, Economist (Dec. 20, 2014), http://www.economist.com/news/international/21636756-denmark-claims-north-pole-frozen-conflict. arguing that the area “is central to defending [its] Arctic sovereignty.” 174Byers, The North Pole is a Distraction, supra note 64. A fourth claim could conceivably be staked by the U.S., which has conducted research on the length of its continental shelf extending from Alaska to the North Pole; 175Johnson, supra note 64. however, without ratifying UNCLOS, the U.S. cannot submit its evidence to the CLCS. The final littoral state—Norway—has indicated that it will not assert a claim to the North Pole under UNCLOS. 176Id.

At the center of the dispute is the so-called Lomonosov Ridge, a massive underwater range splitting the central Arctic Ocean that Denmark, Russia, and Canada all claim as a “natural prolongation” of their landmass. 177Milne, supra note 168. In other words, each claims the Lomonosov Ridge as part of their extended continental shelf under UNCLOS Article 76. 178See UNCLOS, supra note 6, art. 76. Since coastal states may exercise sovereignty over resources located in the sedimentary strata of their continental shelves, 179Byers, International Law and the Arctic, supra note 62, at 6. these claims have the potential to effectively lockup the entirety of the Arctic seabed and the energy resources found within (i.e., by effectively eliminating the previously-imagined “doughnut hole” in the central Arctic Ocean). 180See Spears, supra note 165. Non-Arctic states would thus be shut-off entirely from the ability to independently exploit the Arctic’s hydrocarbon wealth.

It is noteworthy, however, that even absent these claims, the vast majority of offshore energy resources are already expected to fall within the Arctic Five’s uncontested jurisdictions closer to shore. 181See Byers, China Could be the Future of Arctic Oil, supra note 87. Moreover, drilling operations in the central Arctic are extraordinarily difficult and expensive, given the harsh conditions in the area. 182See id. Consequently, non-Arctic countries may benefit from simply cooperating with the coastal Arctic states in developing the energy resources located within their uncontested EEZs. In either event, distant states will have extremely limited prospects of exploiting Arctic resources on their own.

3. Navigation Provisions

While overlapping territorial claims in the central Arctic Ocean make it difficult to assess the exact maritime boundaries of the Arctic Five, the legal status of Arctic straits is perhaps more obfuscated. 183See generally Byers, International law and the arctic, supra note 62, at 129–131. Although UNCLOS grants foreign vessels the right of “innocent passage” through territorial waters, 184UNCLOS, supra note 6, art. 17. free navigation through EEZs, 185Id. art. 58. and free navigation further out on the “high seas,” 186Id. art. 87. no such rights of passage exist within internal waters—“waters on the landward side of the baseline” from which the territorial zone is measured. 187Id. art. 8. Both Russia and Canada have long contended that the Northern Sea Route and Northwest Passage, respectively, constitute “internal waters” within the meaning of this provision, thus closed off to access by foreign vessels without express permission from Moscow and Ottawa. 188Byers, International Law and the Arctic, supra note 62, at 130. Since these waterways are the only currently-viable trans-Arctic sea lanes, 189See discussion supra Part I.A. Russia and Canada’s claims have significant implications for commercial shipping through the region.

Neither claim is uncontested; the U.S. disputes both, arguing that both waterways are “‘international straits’ through which vessels from all countries may pass freely.” 190Byers, International Law and the Arctic, supra note 62, at 129. According to the International Court of Justice in the 1949 Corfu Channel Case, a waterway constitutes an international strait if it has a “geographical situation as connecting two parts of the high seas” and it is “used for international navigation.” 191Corfu Channel (UK v. Alb.), Judgment, 1949 I.C.J. Rep. 4, .the Arctic Council Secretariat,reventions, not use them to benefit or disclose for any reason not expressly permitted by rules 28 (Apr. 9). UNCLOS clarifies that foreign vessels navigating international straits necessarily pass through territorial waters, but “instead of the regular right of ‘innocent passage’ . . . they benefit from the enhanced right of ‘transit passage.’” 192Byers, International Law and the Arctic, supra note 62, at 130; see also UNCLOS, supra note 6, art. 39. This right entitles the vessels to “pass through the strait without coastal state permission.” 193Byers, International Law and the Arctic, supra note 62, at 130. Foreign vessels exercising this right must “refrain from any activities other than those incident to their normal modes of continuous and expeditious transit unless rendered necessary by force majeure or by distress.” UNCLOS, supra note 6, art. 39.

“Internal waters,” by contrast, are established through “long-term acquiescence of other countries.” 194Byers, International Law and the Arctic, supra note 62, at 130. Such waters may also arise from the “drawing of ‘straight baselines’ between headlands and fringing islands,” according to the decision of the International Court of Justice in the 1951 Anglo-Norwegian Fisheries Case and under customary international law. 195Id. at 130–131. Where such waters exist, coastal states are entitled to exert full sovereignty over transit and may deny access to foreign vessels. 196Id. at 130.

Given these standards, non-Arctic states are severely limited in their ability to mount a challenge to the legal status of Arctic straits. In the case of the Northwest Passage, a key issue is whether the strait was “used for international navigation” before Canada drew straight baselines in 1985. 197Id. at 134. However, there is no evidence that any non-Arctic state actually used the strait prior to the drawing of those baselines. 198Id. at 149. Only the U.S., which navigated a few vessels through the Passage before 1985, is positioned to argue that it used the strait for “international navigation.” 199Id. Similarly, having sailed a few vessels through the Northern Sea Route prior to Russia’s drawing of straight baselines in 1985, the U.S. is the only country that is positioned to dispute Russia’s claim that portions of the Route constitute “internal waters.” 200See id. at 144–46. Indeed, no country other than the U.S. has taken a side in the dispute with Russia thus far, which dates back to 1963 when the U.S. sailed an icebreaker through Russia’s Laptev Sea. 201Id. at 144.

In short, non-Arctic states have little recourse with respect to asserting their legal rights to sail commercial vessels through the Northwest Passage and the Northern Sea Route. However, even with legal uncertainty, there is no indication that either Russia or Canada are intent on fully shutting down shipping at this point; indeed, the rising volume of vessels transiting both sea routes illustrates that Canada and Russia are likely to continue to look favorably upon increased traffic through their Arctic corridors. 202See discussion supra Part I.A. Still, some degree of restrictions will likely be imposed, such as permit fees and environmental standards, if for no other reason than for coastal states to exact an economic profit. As a result, shipping volume through the Arctic will remain limited for the foreseeable future, at least until the Transpolar Sea Route—which lies far beyond any coastal states’ “internal waters”—opens up to shipping in the central Arctic around 2050. 203See discussion supra Part I.A.

C. The Soft-Law Regime: The Arctic Council

1. Introduction to the Council

Established under the Ottawa Declaration of 1996 as a “high level forum” for cooperation in the Arctic, 204Declaration on the Establishment of the Arctic Council ¶ 1, Sept. 19, 1996, 35 I.L.M. 1382 [hereinafter Ottawa Declaration]. the Arctic Council has emerged in recent years as “the most comprehensive international body in the Arctic region.” 205Byers, International Law and the Arctic, supra note 62, at 8. Tasked with addressing “common Arctic issues” (other than “matters related to military security”), 206Ottawa Declaration, supra note 204, ¶ 1(a). The Declaration contains just two footnotes, one of which reads “The Arctic Council should not deal with matters related to military security.” Id. the Council’s central mandate is to promote sustainable development and environmental protection in the Arctic. 207Id. Accordingly, the Council has coordinated 208The Arctic Council conducts activities through working groups, task forces, and expert groups. U.S. Gov't Accountability Off., GAO-14-435, Arctic Issues: Better Direction and Management of Voluntary Recommendations Could Enhance U.S. Arctic Council Participation 16 (2014). a number of pioneering and influential scientific studies on emerging issues in the Arctic, including the 2004 Arctic Climate Impact Assessment, 209See generally Susan Joy Hassol, Impacts of a Warming Arctic: Arctic Climate Impact Assessment (2004), http://www.amap.no/arctic-climate-impact-assessment-acia. the 2007 Arctic Oil and Gas Assessment, 210See generally Henry P. Huntington, Arctic Monitoring and Assessment Programme, Arctic Oil and Gas 2007 (2007), http://www.amap.no/documents/doc/arctic-oil-and-gas-2007/71. and the 2009 Arctic Marine Shipping Assessment. 211See generally Arctic Council, Arctic Marine Shipping Assessment 2009 Report (2009), http://www.arctic.noaa.gov/detect/documents/AMSA_2009_Report_2nd_print.pdf. Through these initiatives, the Council has effectively raised the visibility of Arctic issues and contributed to national Arctic policy discussions. 212Paula Kankaanpaa & Oran R. Young, The Effectiveness of the Arctic Council, 31 Polar Res. 1, 1 (2012).

Notwithstanding its achievements in scientific research and policy framing, however, the Arctic Council is rather “limited as an institution itself.” 213Alison Ronson, Political Climate Change: The Evolving Role of the Arctic Council, 33 Northern Rev. 95, 100 (2011). See also Kankaanpaa & Young, supra note 212, at 10 (stating that the Arctic Council is widely considered a “policy-shaping body rather than a policy-making body”). By design, the Council was created as an informal cooperative forum, not a binding “intergovernmental organization” as defined under international law. 214Evan T. Bloom, Establishment of the Arctic Council, 93 Am. J. Int’l L. 712, 712 (1999). In general, international organizations must (1) be founded on a binding legal instrument; 215See Henry G. Schermers & Niels M. Blokker, International Institutional Law: Unity Within Diversity §§ 34–36 (5th ed. 2011). (2) have “at least one organ with a will of its own;” and (3) be “established under international law.” 216Id. § 33. The Arctic Council, however, was created under the terms of a ministerial declaration, not a binding treaty. 217Some legal scholars question whether a founding treaty is actually required to qualify as an international organization. See, e.g., Byers, International Law and the Arctic, supra note 62, at 9 n.36 (noting that “[a]lthough the Arctic Council is based on a declaration rather than a founding treaty, such a treaty is not a necessary condition for an international organization”). It was created without a “separate independent organ . . . to carry out its particular functions.” 218Waliul Hasanat, Definitional Constraints Regarding Soft Law, 3 AALCO Q. Bull. 8, 21 (2007). Indeed—at the insistence of the U.S.—it was expressly created “without legal personality,” 219Bloom, supra note 214, at 714. meaning it lacks the requisite “capacity . . . to conclude treaties” on its own. 220See Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations art. 6, opened for signature Mar. 21, 1986, 25 I.L.M. 543 [hereinafter Vienna Convention]. The preamble to the Convention states that “international organizations possess the capacity to conclude treaties which is necessary for the exercise of their functions and fulfillment of their purposes.” Id. pmbl. This adopts the International Court of Justice’s approach in Certain Expenses of the United Nations, Advisory Opinion, 1962 I.C.J. Rep. 151, at 167–68 (July 20). Rather, the Arctic Council is a “soft law” institution—it “creates norms [and] standards of behavior without creating legally binding obligations on [its] member states.” 221Ronson, supra note 213. Decisions are reached by consensus, and members may elect to implement or reject Council recommendations based simply on national interests and political motivations. 222Bloom, supra note 214, at 718. And even if members implement recommendations, the Council has difficulty evaluating such implementation as it possesses limited enforcement and monitoring power. Ronson, supra note 213.

More recently, however, the Arctic Council has assumed a more authoritative role as the reality of accelerating climate change has altered its members’ national priorities in the region. At its 2011 Ministerial Meeting in Nuuk, Greenland the Arctic Council established a permanent secretariat to be located in Tromsø, Norway. 223Arctic Council, Nuuk Declaration, Seventh Ministerial Meeting, at 2 (May 12, 2011), http://arctic-council.npolar.no/accms/export/sites/default/en/meetings/2011-nuuk-ministerial/docs/Nuuk_Declaration_FINAL.pdf. According to one scholar, this “arguably transform[ed] the Arctic Council from an inter-governmental forum into an international organization.” 224See, e.g., Byers, International Law and the Arctic, supra note 62, at 9. However, while arguably an independent sub-organ of the Council under the international legal definition, 225See Schermers & Blokker, supra note 215, § 33. the secretariat’s “mandate and function are relatively modest [and] mostly administrative in nature.” 226Charron, supra note 142. Additionally, while the secretariat itself holds domestic legal personality under Norwegian law, 227Host Country Agreement Between the Government of the Kingdom of Norway and the Arctic Council Secretariat art. 2 (Mar. 2012). Under Article 2 of the Host Country Agreement, “The Secretariat has legal personality and capacity to perform its functions in Norway. It has, in particular, the capacity to contract, to acquire and dispose of movable and immovable property, and to institute and be a party to legal proceedings.” Id. the Council as a whole continues to operate without international legal personality. 228Erik J. Molenaar, Alex G. Oude Elferink & Donald R. Rothwell, The Law of the Sea and the Polar Regions: Interactions between Global and Regional Regimes 41 (2013) (stating that “the Arctic Council still operates without legal personality”). Still, despite these limitations, the establishment of a secretariat may go far to advance the Council’s ability to “broker cooperation” in the Arctic. 229Rebecca H. Pincus & Saleem H. Ali, Diplomacy on Ice: Energy and the Environment in the Arctic and Antarctic 53 (2015).

More significantly, the Council has recently become “the focal point for treaty-making” in the Arctic. 230Timo Koivurova, Increasing Relevance of Treaties: The Case of the Arctic, AJIL Unbound (May 6, 2014, 3:03 PM), http://www.asil.org/blogs/increasing-relevance-treaties-case-arctic-agora-end-treaties. In 2011, members adopted a search-and-rescue treaty, 231See generally Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic (May 12, 2011), https://oaarchive.arctic-council.org/bitstream/handle/11374/531/Arctic_SAR_Agreement_EN_FINAL_for_signature_21-Apr-2011%20%281%29.pdf?sequence=1&isAllowed=y. “the first legally binding instrument concluded under the auspices of the Arctic Council.” 232Byers, International Law and the Arctic, supra note 62, at 9. In other words, members used the Council as a forum to conclude a treaty amongst themselves; however, the Council itself did not conclude the treaty, and thus it continues to operate without legal personality. See Vienna Convention, supra note 220. A second binding agreement concerning oil spill preparation and response was signed at the Kiruna Ministerial Meeting in 2013. 233See generally Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic (May 15, 2013), https://oaarchive.arctic-council.org/bitstream/handle/11374/529/MM08_agreement_on_oil_pollution_preparedness_and_response_%20in_the_arctic_formatted%20%282%29.pdf?sequence=1&isAllowed=y. Whether these treaties are precedent-setting is uncertain at this point; there is certainly the potential for the Council to transform into a “policy-making,” rather than a “policy-shaping” body. 234Kankaanpaa & Young, supra note 212, at 10. In any event, the Arctic Council’s recent actions have solidified its status as a “prominent player” in Arctic affairs. 235Id. at 1. Circumpolar as well as non-Arctic states are mindful of this growing prominence and increasingly view participation in the Council as a key avenue to influencing Arctic affairs.

2. Expansion of the Council

Several distinct groups comprise the Arctic Council: members, permanent participants, observers, ad-hoc observers, the Council chair (which rotates between members every 2 years), the secretariat, and six working groups. 236The Council’s six working groups, each with its own specific mandate, are the Arctic Contaminants Action Program (ACAP); Arctic Monitoring and Assessment Programme (AMAP); Conservation of Arctic Flora and Fauna (CAFF); Emergency Prevention, Preparedness and Response (EPPR); Protection of the Arctic Marine Environment (PAME); and Sustainable Development Working Group (SDWG). See Working Groups, Arctic Council (Apr. 15, 2011), http://www.arctic-council.org/index.php/en/about-us/working-groups. Full membership is limited to the eight nations with territory north of the Arctic Circle (the “Arctic Eight”)—Canada, Russia, Norway, Denmark, the U.S., Finland, Sweden, and Iceland. 237Member States, Arctic Council, http://www.arctic-council.org/index.php/en/about-us/member-states (last updated Sept. 10, 2015). In 2013, each of the eight members contributed $58,000 per year (a 12.5% equal contribution) toward the Secretariat budget. Arctic Council Secretariat, Indicative Budget for 2013, at 5 (2012). These nations are empowered to vote, make policy, and administer projects. 238Charron, supra note 142. By contrast, permanent participants—made up of groups representing indigenous Arctic communities—are not granted voting privileges; they are, however, entitled to participate in all meetings and to “full consultation prior to the forming of decisions.” 239Id. This fairly unique structure is “comparatively new [] in international cooperation” 240Hasanat, supra note 218, at 19. as it grants indigenous groups a “more significant [role] than is typically afforded them at other U.N. or multilateral meetings and conferences.” 241Charron, supra note 142. See also Press Release, Walter and Duncan Gordon Found., Eyeing Resources: India, China, Brazil, Japan, Other Countries Want a Voice on Arctic Council (Jan. 16, 2012) [hereinafter Eyeing Resources], http://gordonfoundation.ca/press-release/438 (“The Arctic Council is the only international organization that gives indigenous peoples a formal place at the table”).

Observers are a significantly weaker—and larger 242There are currently twelve non-Arctic states and twenty organizations admitted as permanent observers, including nine intergovernmental organizations and eleven non-governmental organizations. Observers, Arctic Council (Apr. 27, 2011), http://www.arctic-council.org/index.php/en/about-us/arctic-council/observers. With a ratio of “4 observers for every Member State with decision-making clout,” the Council is fairly lopsided, posing potential problems. Charron, supra note 142. —constituency than Council members and permanent participants. Under the Ottawa Declaration, observer status is open to non-Arctic states and organizations that “the Council determines can contribute to its work.” 243Ottawa Declaration, supra note 204, ¶ 3. Originally, six non-Arctic states—all of them European—held observer status: Germany, the Netherlands, Poland, and the United Kingdom, joined by France in 2000 and Spain in 2006. 244Kathrin Keil, A New Model for International Cooperation, Arctic Inst. (Feb 20, 2014), http://www.thearcticinstitute.org/2014/02/a-new-model-for-international.html. See also Charron, supra note 142. Then in 2007, China submitted an application for permanent observer status, triggering a new wave of interest from non-Arctic states in joining the Council. 245Matthew Willis & Duncan Depledge, How We Learned to Stop Worrying About China's Arctic Ambitions: Understanding China's Admission to the Arctic Council, 2004-2013, Arctic Inst. (Sept. 22, 2014), http://www.thearcticinstitute.org/2014/09/092214-China-arctic-ambitions-arctic-council.html. By 2009, Italy, South Korea, and the European Union (EU) had submitted applications, 246Mia Bennett, Round-up from the Arctic Council Ministerial Meeting, Foreign Pol’y Ass’n (May 1, 2009), http://foreignpolicyblogs.com/2009/05/01/round-up-from-the-arctic-council-ministerial-meeting-22/. followed shortly thereafter by India, Japan, and Singapore, “along with a host of non-governmental organizations.” 247Willis & Depledge, supra note 245. All of these applications, however, were deferred. 248As the first of the new applicants, China had its application for observer status denied three times (at each of the Ministerial Meetings occurring in 2007, 2009, and 2011), before finally being accepted in 2013. See Rebecca Lindegren, Arctic Council Adds Five Permanent Asian Observers, Int’l Rel. Online Blog (June 13, 2013), http://ironline.american.edu/arctic-council-adds-five-permanent-asian-observers/. The Arctic Eight were divided as to whether to admit new observers: Nordic countries were “favourably [sic] disposed to admitting any applicant who made a reasonable case,” 249Willis & Depledge, supra note 245. while Canada and Russia feared that “a greatly enlarged contingent of observers would overwhelm the current members, particularly the indigenous groups.” 250See Eyeing Resources, supra note 241. The result was an impasse, since the Council requires consensus to act. 251Bloom, supra note 214, at 718.

Russia and Canada’s aversion to expansion, however, was perhaps misguided. To be sure, permanent observers are granted a measure of influence at the Arctic Council. Unlike ad-hoc observers, permanent observers are automatically invited to all Council meetings. 252Senior Arctic Officials (SAO) Report to Ministers 50–51 (2011) [hereinafter SAO Report]. They can utilize their “expertise and money [to] influence decisions in the [C]ouncil’s six working groups.” 253A Warmer Welcome, Economist (May 18, 2013), http://www.economist.com/news/international/21578040-arctic-council-admits-its-first-permanent-asian-observers-warmer-welcome. See also SAO Report, supra note 252, at 51 (“[O]bservers should continue to make relevant contributions through their engagement in the Arctic Council primarily at the level of Working Groups”). They can “propose projects” and finance them. 254SAO Report, supra note 252, at 51. However, observers’ “financial contributions . . . may not exceed the financing from Arctic States, unless otherwise decided.” Id. And they can “submit written statements at Ministerial meetings.” 255Id. Permanent observers are not, however, empowered to speak at Council meetings and have no voting rights. 256A Warmer Welcome, supra note 253. And while observers are permitted to finance projects, their contributions “may not exceed the financing from Arctic States.” 257SAO Report, supra note 252, at 51. Ultimate decision-making authority therefore rests entirely with the Arctic Eight, as does the primary ability to discuss Council policy and direct the Council’s six working groups.

Nevertheless, stasis among the Arctic Eight persisted, leading the Council in 2011 to publish an official observer manual 258See generally Arctic Council, Arctic Council Observer Manual for Subsidiary Bodies (2011). and adopt a new set of criteria for admitting observers, including a restatement of the role of observers on the Council. 259SAO Report, supra note 252. These documents served two purposes: to reaffirm the primacy of the Arctic Eight on the Council, thereby reassuring Russia and Canada that expansion would not improperly dilute their influence, and to buttress the rights of the Council’s permanent participants. 260Willis & Depledge, supra note 245. Under the new criteria, observers must “recognize Arctic States’ sovereignty, sovereign rights and jurisdiction in the Arctic.” 261SAO Report, supra note 252, at 50. Observers must also “recognize that an extensive legal framework applies to the Arctic Ocean, including [] the Law of the Sea, and that this framework provides a solid foundation for responsible management of this ocean.” 262Id. Finally, observers must have “political willingness” and “financial ability” to contribute to the Council’s work, as well as demonstrated “Arctic interests and expertise relevant to the work of the Arctic Council.” 263Id. These conditions expand upon the Ottawa Declaration’s brief statement that observers must be able to “contribute to [the Council’s] work.” Ottawa Declaration, supra note 204, ¶ 3.

Unsurprisingly, these conditions proved somewhat contentious. For example, it seemed unlikely that China would accept the second condition, which seemed to imply that the littoral Arctic states had “the right to administer the entire Arctic Ocean.” 264See, e.g., Byers, International Law and the Arctic, supra note 62, at 255. In the past, a Chinese Rear Admiral had gone so far as to claim that the “Arctic belongs to all people around the world as no nation has sovereignty over it.” 265Chang, supra note 129. Officially, however, China’s remarks on the new criteria affirmed the “Arctic States’ sovereignty, sovereign rights and jurisdiction in the Arctic, as well as their decision-making power in the Council.” 266Lan Lijun, Ambassador of the People’s Republic of China to Canada, Statement at the Meeting between the Swedish Chairmanship of the Arctic Council and Observers (Nov. 6, 2012), http://www.arctic-council.org/images/PDF_attachments/Observer_DMM_2012/ACOBSDMMSE01_Stockholm_2012_Observer_Meeting_Statement_Ambassador_Lan_Lijun_China.pdf. Regardless of whether China simply adopted this posture for political expediency, it has remained the official narrative through the present. 267For example, after China gained observer status in 2013, Chinese Foreign Ministry spokesman Hong Lei reaffirmed that “China recognizes the Arctic countries’ sovereignty, sovereign rights and jurisdiction in the Arctic area, as well as their leading role in the Arctic Council.” Zhi, supra note 86.

Following the publication of these guidelines, observer applications were again deferred until the next Ministerial Meeting; however, by 2013, “the ‘observer question’ was beginning to assume its own degree of geopolitical importance.” 268Willis & Depledge, supra note 245. As Arctic sea ice levels melted to record-low levels and commercial activity in the region increased, 269See discussion supra Part I.A. global economic players were keen to have a say in designing the rules and norms affecting that activity. Indeed, the Arctic Eight were conscious that failure to reach a decision as to observer applications would “undermine the [Council’s] status as the region’s key policy-shaping forum, [and] that other forums . . . might emerge to fill the leadership void.” 270Willis & Depledge, supra note 245. Moreover, “[c]ontinued deadlock or a bungled outcome would [] damage the image of openness that the [Council] was seeking to project.” 271Id. Whatever residual objections the Arctic Eight had towards expansion, preserving the global legitimacy of the Arctic Council became the overriding concern, leading members to generally endorse the addition of new observers. 272See id.

Subsequently, after some debate, 273Id. six new permanent observers were admitted to the Arctic Council at its 2013 Ministerial Meeting in Kiruna, Sweden. 274Arctic Council Secretariat, Kiruna Declaration, Eighth Ministerial Meeting, at 6 (May 15, 2013), https://oaarchive.arctic-council.org/bitstream/handle/11374/93/MM08_Kiruna_Declaration_final_formatted.pdf?sequence=5&isAllowed=y [hereinafter Kiruna Declaration]. See also Myers, supra note 2. China, India, Japan, Singapore, South Korea, and Italy’s applications were approved; 275Kiruna Declaration, supra note 274. the EU’s bid, however, was again deferred pending the resolution of an ongoing dispute between the EU and Canada over a 2008 EU import ban on seal products. 276Andreas Østhagen, In or Out? The Symbolism of the EU’s Arctic Council Bid, Arctic Inst. (June 18, 2013), http://www.thearcticinstitute.org/2013/06/in-or-out-symbolism-of-eus-arctic.html. The Council noted that it “affirmatively receive[d] the application of the EU for observer status,” but that it “defer[ed] a final decision on implementation until the Council ministers are agreed . . . that the concerns of Council members . . . are resolved.” Kiruna Declaration, supra note 274. In response, EU foreign policy chief Catherine Ashton stated that the “EU will now work expeditiously with [Canada] to address the outstanding issue of their concern.” 277Nikolaj Nielsen, China Beats EU to Arctic Council Membership, euobserver (May 16, 2013), https://euobserver.com/eu-china/120138.

To an extent, Canada’s veto of the EU’s application symbolizes the growing significance of the Council as a “conveyor of substantial political messages.” 278Nils Wang, Arctic Security–An Equation with Multiple Unknowns, 15 J. Mil. & Strategic Stud. 16, 17 (2013). Although seal products hold little economic significance in EU-Canada trade relations, they remain of “grave importance to the local indigenous peoples living off such activities.” 279Østhagen, supra note 276. Consequently, the dispute is “pivotal to Canada’s self-portrayal as an Arctic nation.” 280Id. More generally, Canada’s exercise of its veto power signals the dominance of the Artic states in Arctic affairs. 281Id. Indeed, permanent observer status carries only limited benefits, so the real issue is symbolic: “who is in or who is out, and who has the power to decide.” 282Id. For now, the EU is “out” until a resolution favorable to Canada is reached; China, India, Japan, Singapore, South Korea, and Italy, by contrast, are “in.”

3. Implications of Expansion

The Arctic Council’s expansion to admit six new permanent observers has significant implications for Arctic governance and development. In practical terms, additional observers will advance the Council’s work by financing projects and contributing expertise on Arctic affairs. 283SAO Report, supra note 252, at 50. New observers will also strengthen cooperation on various Council initiatives, such as measures to combat climate change. 284Charron, supra note 142. However, since permanent observers have only limited rights, 285See discussion supra Part II.B.2. the implications of expansion are mostly symbolic.

First, expansion signals international consensus as to the legitimacy of the “patchwork” legal regime administering the Arctic region. 286Weidemann, supra note 136, at 228. Having accepted the 2011 admissions criteria, new observers explicitly affirm the primacy of the Arctic Eight’s sovereignty and jurisdiction in the Arctic. 287SAO Report, supra note 252, at 50. Observers “recognize Arctic States’ sovereignty, sovereign rights and jurisdiction in the Arctic.” Id. By extension, this demonstrates “broad international acceptance” of the Council’s role as the Arctic’s leading inter-governmental forum and “strengthens the position of the Arctic Council on the global scene.” 288Myers, supra note 2. Acceptance of the admissions criteria also explicitly signals international consensus as to the primacy of UNCLOS as the regulator of the Arctic Ocean. 289Wang, supra note 278. Observers are required to “recognize that an extensive legal framework applies to the Arctic Ocean, including, notably, the Law of the Sea, and that this framework provides a solid foundation for responsible management of this ocean.” SAO Report, supra note 252, at 50. Because UNCLOS grants the Arctic Five exclusive jurisdiction over the vast majority of the Arctic’s resources, 290See discussion supra Part II.B.2. acceptance of this condition indicates new observers’ intent to cooperate with the Arctic Five in exploiting those resources.

Second, expansion greatly enhances the Arctic Council’s international profile. With the inclusion of five Asian states, the Council no longer exclusively represents the interests of non-Arctic European observers, as was the case prior to its 2013 Ministerial Meeting. 291See discussion supra Part II.C.2. Furthermore, the admission of China means that all five U.N. Security Council permanent members—China, France, Russia, the United Kingdom, and the U.S.—are now either members or observers at the Council. 292Charron, supra note 142. By “globalizing” its constituency to include these major world powers, the Council’s actions will carry greater apparent legitimacy; in turn, this will enhance the Council’s ability to coalesce broad international support for Arctic initiatives.

Third—and perhaps most significantly—the Council’s admission of six distant observers signals the legitimacy of non-Arctic states’ interests in the Arctic region. Chinese analysts were quick to reach this conclusion in the wake of the Council’s decision; for example, Qu Xing, head of the China Institute of International Studies, stated that “being granted observer status shows that China’s activities in and opinions about the region have been recognized by all member states.” 293Zhi, supra note 86. China’s official news agency added that the decision would “guarantee [China’s] legitimate rights and activities in the region.” 294Id. This sentiment was explicitly endorsed by the Danish Foreign Minister, who stated that the Arctic Council’s expansion “reflects the fact that many countries outside the Arctic area also have legitimate interests in the development of the region.” 295Chris Irvine, China Granted Permanent Observer Status at Arctic Council, Telegraph (May 15, 2013), http://www.telegraph.co.uk/news/worldnews/asia/china/10060624/China-granted-permanent-observer-status-at-Arctic-Council.html. The remaining Arctic states at least implicitly endorsed this notion by casting affirmative votes to admit the new observers.

III. Reforming Arctic Governance: Globalizing Arctic Cooperation

Notwithstanding the symbolic implications of the Arctic Council’s expansion to admit new observers, 296See discussion supra Part II.C.3. non-Arctic states remain disadvantaged under the Arctic legal framework. As discussed above, the vast majority of Arctic hydrocarbons 297See discussion supra Part II.B.2. and both currently-accessible trans-Arctic shipping routes 298See discussion supra Part II.B.3. are subject to littoral state control under UNCLOS. Arctic governance is likewise dominated by circumpolar actors, as the Arctic Council significantly restricts the participatory rights of non-Arctic states. Not only are non-Arctic observers denied speaking and voting rights, but their financial contributions are prohibited from exceeding those of the Arctic Eight. 299SAO Report, supra note 252, at 51. Ad-hoc observers have even fewer rights, requiring permission to attend all Council meetings. 300Jane George, Arctic Council: EU Out But China Likely In, Academics Say, Nunatsiaq Online (Apr. 29, 2013, 3:39 PM), http://www.nunatsiaqonline.ca/stories/article/65674arctic_council_eu_out_but_china_likely_in_academics_say/. As the Arctic region globalizes, these structural disparities threaten the continued viability of the Arctic Council in two primary ways.

First, limited participation by non-Arctic states will inhibit the overall effectiveness of the Arctic Council. Caps on financial contributions by observers, for example, may result in Council projects going underfunded, particularly since funding from member states is fairly unreliable. 301Kankaanpaa & Young, supra note 212, at 4. Indeed, the “greatest hindrance to the effectiveness of the council is the lack of a reliable source of funding to cover general operating expenses.” Id. Indeed, under the Council’s voluntary financing system, members may simply opt out of funding projects altogether, even once those projects are already underway. 302Weidemann, supra note 136, at 56. If a project simply “drops from the agenda of the funding state and no other [member] is willing to take over, it may fail before being completed.” Id. This happened, for example, to the Circumpolar Protected Areas Network project in 2010. See id. Thus, while observers may propose projects and fund them to the same extent as members, 303SAO Report, supra note 252, at 51. they remain powerless to see those projects through to completion. Given the risk of wasted time and resources, this rule may ultimately discourage non-Arctic states from funding Council projects or even bringing their own scientific initiatives under the umbrella of the Council. 304Aldo Chircop, Should Observer Participation in Arctic Ocean Governance be Enhanced?, Can. Naval Rev., Winter 2012, at 2, 3. As a result, the Council will remain limited in its ability to produce influential environmental studies and policy guidelines.

More fundamentally, restrictions on non-Arctic observers’ speaking rights will inhibit effectiveness by stifling the “cross-pollination of ideas” 305Charron, supra note 142. at the Arctic Council. As an informal cooperative forum with a diverse constituency, the key component of the Council’s success is its facilitation of “dialogue among different knowledge groups.” 306Kankaanpaa & Young, supra note 212, at 4. Largely restricting that dialogue to regional actors—even as the Arctic itself globalizes—will inevitably constrain the breadth and diversity of ideas exchanged at the Council, thereby limiting the Council’s capacity to generate creative and effective solutions to emerging Arctic issues.

Second, limited opportunities for participation at the Council may lead non-Arctic states to pursue alternative avenues for regional engagement. 307Id. at 11. For example, non-Arctic states might view bilateral dealings with the Arctic states as a superior means to achieve regional goals. China has pursued such a strategy in recent years, individually courting the Arctic Eight to position itself as an indispensable Arctic player. 308See Rainwater, supra note 4, at 71–73. Similarly, non-Arctic states may view participation in various alternative forums as more rewarding than the Council. One potential alternative is the nonprofit Arctic Circle, an inclusive 309The Arctic Circle is “open to all.” Paul Koring, New Arctic Group Gives Canada Political Competition, Globe & Mail (Apr. 16, 2013, 3:30 AM), http://m.theglobeandmail.com/news/politics/new-arctic-group-gives-canada-political-competition/article11243970?service=mobile. forum that facilitates dialogue among global stakeholders on “rapid changes in the Arctic.” 310Global Leaders Gather for Inaugural Arctic Circle Assembly Oct. 12-14, 2013, in Reykjavik, Iceland, PR Newswire (Oct. 7, 2013), http://www.prnewswire.co.uk/news-releases/global-leaders-gather-for-inaugural-arctic-circle-assembly-october-12-14-2013-in-reykjavik-iceland-226735641.html [hereinafter Global Leaders Gather]. The forum grants all stakeholders an equal say under “one large ‘open tent.’” Id. Already numerous distant states, frustrated by their inability to speak at the Council, have begun to focus their attention on the Arctic Circle. 311Koring, supra note 309. Indeed, at its inaugural assembly in 2013, the Arctic Circle was likely “the largest and most diverse gathering of its kind,” with over 900 participants from forty countries, including Arctic Council observers such as China and India. Global Leaders Gather, supra note 310. This surge of interest will no doubt test the Council’s status as the “region’s key policy-shaping forum,” 312Willis & Depledge, supra note 245. and could lead to the inevitable “marginalization of the [Council] as a force to be reckoned with.” 313Kankaanpaa & Young, supra note 212, at 13.

In sum, the current regional model of Arctic governance is no longer adequate to meet the challenges of a globalized Arctic. As the Arctic develops, non-Arctic states are vying for a say in designing the rules and norms regulating that development. Failure to meaningfully engage these states threatens the viability of the Council, both in terms of its institutional effectiveness and its regional primacy. As a result, the Arctic Council should implement structural reforms that better account for the interests of non-Arctic states in the region, as well as increase its collaboration with alternative Arctic forums that offer distant actors significant participatory rights.

In terms of structural reform, the Arctic Council should abolish its prohibition on non-Arctic observers’ funds exceeding those of Arctic Eight. Apart from “exercise of control,” this rule serves no functional purpose; 314Chircop, supra note 304, at 3. rather, it hampers the Council’s work, especially as funds from member states are unreliable under the voluntary system. 315Kankaanpaa & Young, supra note 212, at 4. Likewise, the Council should grant observers limited speaking rights at ministerial meetings. Currently, observers are allowed only to submit written statements at such meetings; 316SAO Report, supra note 252, at 51. this right should be expanded to empower observers to make verbal statements, subject to the discretion of the Chair, after the Arctic Eight and permanent participants have spoken. This will encourage a broader exchange of ideas at the Council, thereby allowing for a more robust dialogue on emerging Arctic issues.

Undoubtedly, efforts to enhance non-Arctic state participation will be met with resistance from Russia and Canada, who remain worried that increasing external influence will dilute their status at the Council. 317See Eyeing Resources, supra note 241. However, without voting rights, non-Arctic state observers will continue to play a secondary role at the Council, leaving ultimate decision-making authority to the Arctic Eight. Indeed, under the strict 2011 Admissions Criteria, observers explicitly affirm the authority of the Arctic states in Arctic affairs. Rather, structural reforms will greatly enhance the Council’s effectiveness in fulfilling its mandate of sustainable development and environmental protection. First and foremost, reforms allowing for greater funds and increased dialogue will strengthen the Council’s operational capabilities. At the same time, efforts to enhance the participation of non-Arctic states in Council activities will increase their commitment to Council outputs; 318Kankaanpaa & Young, supra note 212, at 12. and will help position the Council as “the most logical and appropriate venue for shaping international coordination in the Arctic.” 319Id.

In addition to these structural reforms, the Council should increase its engagement and coordination with alternative regional forums. As globally-inclusive forums such as the Arctic Circle grow in prominence, the Council’s influence will diminish, leading to the decentralization of Arctic policy-shaping. Since the Arctic Eight do not necessarily play a dominant role at such forums, Arctic policy may ultimately be designed “without the consent of, and even opposing, the Arctic states.” 320Kaisa Pulkkinen, The Arctic Council and the Northeast Asian Observers, UI Brief (Swedish Inst. Int’l Affairs, Stockholm), Nov. 22, 2013, at 1, 5. Disparate regional guidelines and standards may consequently proliferate, creating confusion and harming the effectiveness of the Council. The Council should therefore take the lead in engaging these forums to coordinate a coherent regulatory regime. Further, since non-Arctic states may hold significant influence in these alternative forums, coordination will ultimately ensure that their preferences are represented in the overarching Arctic framework.

Conclusion

Over the last two decades, the Arctic region has fundamentally transformed from a frozen wasteland into the “last global frontier” of economic opportunity. 321Innes, supra note 29. As the polar ice sheet melts to record-low levels, vast untapped hydrocarbon deposits and shipping shortcuts are opening up to commercial development. As a result, the Arctic is rapidly becoming globalized as non-Arctic states increasingly vie for a say in Arctic affairs.

In some significant ways, the Arctic states have taken steps to accommodate the interests of these distant states. Most notably, the Arctic Council’s admission of six additional non-Arctic observers in 2013 served to generally legitimize the interests of non-Arctic states in the region, while also granting those six states a measure of influence in Arctic affairs. For example, non-Arctic observers are empowered to influence the Council’s work by financing projects and sharing their expertise on Arctic matters.

However, despite this gesture, non-Arctic states remain significantly disadvantaged with respect to pursuing their Arctic interests. Under UNCLOS, most of the Arctic’s resources and both Arctic sea lanes are exclusively controlled by the littoral Arctic states. Arctic governance is also dominated by regional actors, as non-Arctic states are denied speaking and voting privileges at the Arctic Council. These structural disparities not only harm the interests of non-Arctic states, but also undermine the effectiveness of the Council and may ultimately cause the Council to lose its relevancy as non-Arctic states simply focus their attention elsewhere.

Consequently, the current Arctic regime is no longer adequate to address the challenges of a globalized Arctic; as such, a more inclusive, international approach to Arctic governance is now necessary. Namely, the Arctic Council should enhance the participatory rights of non-Arctic states by abolishing caps on financial contributions and permitting observers some speaking rights at ministerial meetings. At the same time, the Council should engage other Arctic forums to coordinate coherent Arctic policies that account for the interests of states around the world.

To be sure, the Arctic Eight should continue to play a predominant role in Arctic affairs; non-Arctic states should not be elevated to the same status as regional actors, given their inherent detachment from local Arctic challenges and opportunities. Yet, as one study has noted, “[g]iven the economic and political shifts occurring at the global level today, there is no way to address Arctic issues successfully without recognizing the heightened connectivity between the Arctic and the global system.” 322Kankaanpaa & Young, supra note 212, at 12–13. Indeed, the Arctic is no longer a strictly insular region; circumpolar actors must therefore take steps to adapt to the challenges of a globalized Arctic.

Footnotes

1Press Release, John Kerry, Secretary, U.S. Dep’t of State, Secretary Kerry Announces Department Will Establish a Special Representative for the Arctic Region (Feb. 14, 2014), http://www.state.gov/secretary/remarks/2014/02/221678.htm [hereinafter Secretary Kerry Announces].

2Steven Lee Myers, Arctic Council Adds 6 Nations as Observer States, Including China, N.Y. Times, May 15, 2013, at A9.

3Id.

4Shiloh Rainwater, Comment, Race to the North: China’s Arctic Strategy and its Implications, 66 Naval War C. Rev. 62, 76 (2013).

5Chris Irvine, China Granted Permanent Observer Status at Arctic Council, Telegraph (May 15, 2013), http://www.telegraph.co.uk/news/worldnews/asia/china/10060624/China-granted-permanent-observer-status-at-Arctic-Council.html.

6See generally United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter UNCLOS].

7See infra Part II.B.2.

8See infra Part II.B.3.

9See infra Part II.C.

10See infra Parts II.B.2, II.B.3.

11Christopher Joyce, Arctic is Warming Twice as Fast as World Average, NPR (Dec. 18, 2014, 3:36 AM), http://www.npr.org/2014/12/18/371438087/arctic-is-warming-twice-as-fast-as-world-average.

12Kathryn D. Sullivan, U.S. Dep’t of State, NOAA’s Arctic Action Plan 2 (2014).

13Maria-José Viñas, Arctic Sea Ice Hits Smallest Extent in Satellite Era, NASA (Sept. 19, 2012), http://www.nasa.gov/topics/earth/features/2012-seaicemin.html. Sea ice levels in 2014 melted to the sixth-lowest level on record. Doyle Rice, Arctic Sea Ice Melts to 6th-lowest Level on Record, USA Today (Sept. 22, 2014), http://www.usatoday.com/story/weather/2014/09/22/arctic-sea-ice-extent-minimum/16064037/.

14Press Release, NASA, 2014 Arctic Sea Ice Minimum Sixth Lowest on Record (Sept. 22, 2014), http://www.nasa.gov/press/2014/september/2014-arctic-sea-ice-minimum-sixth-lowest-on-record/#.VEbXmvl4rYg.

15Sullivan, supra note 12.

16Id.

17Nafeez Ahmed, U.S. Navy Predicts Summer Ice Free Arctic by 2016, Guardian (Dec. 9, 2013, 8:39 AM), http://www.theguardian.com/environment/earth-insight/2013/dec/09/us-navy-arctic-sea-ice-2016-melt. Indeed, Arctic warming has generally outpaced climate models. See Beating a Retreat, Economist (Sept. 24, 2011), http://www.economist.com/node/21530079; Suzanne Goldenberg, Climate Change Poses Growing Threat of Conflict in the Arctic, Report Finds, Guardian (May 14, 2014, 12:54 AM), http://www.theguardian.com/environment/2014/may/14/climate-change-arctic-security-threat-report (“Things are accelerating in the Arctic faster than we had looked at . . . changes there appear to be much more radical than we envisaged.”).

18Sullivan, supra note 12.

19See Terry Macalister, Exhausted Global Oil Supplies Make Arctic the New Hydrocarbon Frontier, Guardian (July 5, 2011, 10:05 AM), http://www.theguardian.com/environment/2011/jul/05/oil-supplies-arctic.

20Jessica Robertson & Brenda Pierce, 90 Billion Barrels of Oil and 1,670 Trillion Cubic Feet of Natural Gas Assessed in the Arctic, U.S. Geological Survey Newsroom (July 23, 2008, 1:00 PM), http://www.usgs.gov/newsroom/article.asp?ID=1980#.VCcy-_ldV8E. The presence of these resources in the Arctic has been generally known for decades, yet “full-scale resource development” has only recently become “technically and economically feasible” with the melting of the polar ice sheet. See Ernst & Young, Arctic Oil and Gas 2 (2013). In fact, “[s]ome subarctic fields were discovered [as early as] the 1920s.” Andrew Bishop et al., Petroleum Potential of the Arctic: Challenges and Solutions, Oilfield Rev., Winter 2010-11, at 38. However, the “discovery of the first true Arctic commercial hydrocarbon field . . . occurred [in 1968].” Id. at 36.

21Robertson & Pierce, supra note 20.

22Kenneth J. Bird et al., U.S. Geological Surv., Circum-Arctic Resources Appraisal: Estimates of Undiscovered Oil and Gas North of the Arctic Circle 1 (2008).

23Roger Parloff, Peter Thiel: Peak Oil Lives!, Fortune (Oct. 24, 2014, 7:00 AM), http://fortune.com/2014/10/24/peter-thiel-peak-oil-lives/.

24See generally Roger Howard, The Arctic Gold Rush: The New Race for Tomorrow’s Natural Resources (2009).

25Andrew Critchlow, Arctic Drilling is Inevitable: If We Don’t Find Oil in the Ice, Then Russia Will, Telegraph (Sept. 7, 2014, 8:57 PM), http://www.telegraph.co.uk/finance/newsbysector/energy/11080635/Arctic-drilling-is-inevitable-if-we-dont-find-oil-in-the-ice-then-Russia-will.html. See, e.g., Atle Staalesen, Arctic Petroleum Year 2030, Barents Observer (Mar. 8, 2011), http://barentsobserver.com/en/sections/energy/arctic-petroleum-year-2030 (explaining that by 2030 Russian oil company Gazprom “intends to produce an annual 200 billion cubic meters of gas and 10 million tons of oil” in the Arctic).

26Desmond Upcraft, Arctic Transit: Northern Sea Route, Royal Belgian Inst. of Marine Eng’rs, http://www.gallois.be/ggmagazine_2013/gg_02_03_2013_90.pdf (last visited Oct. 1, 2015).

27Andrea Charron, The Northwest Passage Shipping Channel: Sovereignty First and Foremost and Sovereignty to the Side, 7 J. Mil. & Strategic Stud. 1, 1 (2005).

28Becky Oskin, Cargo Ship Makes 1st-Ever Solo Trip Through Northwest Passage, Live Sci. (Oct. 1, 2014, 3:52 PM), http://www.livescience.com/48105-cargo-ship-solos-northwest-passage.html.

29Emma Innes, By 2050 the Arctic Ice Sheet Will be so Thin that Ships Could be Sailing Across the North Pole, Experts Predict, Daily Mail (Mar. 4, 2013, 3:04 PM), http://www.dailymail.co.uk/sciencetech/article-2288031/By-2050-Arctic-ice-sheet-ships-sailing-North-Pole-experts-predict.html.

30 Ice Experts Review Northern Sea Route, Mar. Exec. (Oct. 28, 2014, 10:35 PM), http://www.maritime-executive.com/article/Ice-Experts-Review-Northern-Sea-Route-2014-10-28 [hereinafter Ice Experts].

31Trude Petterson, Slow Start on the Northern Sea Route, Barents Observer (Aug. 27, 2012), http://barentsobserver.com/en/arctic/slow-start-northern-sea-route-27-08.

32Kathrin Keil, Evaluation of the Arctic Shipping Season 2013, Arctic Inst. (Jan. 13, 2014), http://www.thearcticinstitute.org/2014/01/evaluation-of-arctic-shipping-season.html. See also Lucy H. London, LNG Carrier Lined up for Northern Sea Route Transit, TradeWinds (Sept. 5, 2014), http://www.tradewindsnews.com/weekly/344070/LNG-carrier-lined-up-for-Northern-Sea-Route-transit (stating that in 2014, Russia received more than 604 applications to sail the route, approving 568 of those applications).

33Keil, supra note 32.

34Id.

35Innes, supra note 29.

36Gleb Bryanski, Russia’s Putin Says Arctic Trade Route to Rival Suez, Reuters (Sept. 22, 2011, 4:04 PM), http://ca.reuters.com/article/topNews/idCATRE78L5TC20110922.

37London, supra note 32.

38Bob Weber, More Northwest Passage Travel Planned by Danish Shipper, Canadian Press (Jan. 3, 2014, 7:52 AM), http://www.cbc.ca/news/canada/north/more-northwest-passage-travel-planned-by-danish-shipper-1.2482731.

39Ice Experts, supra note 30.

40R. K. Headland, Scott Polar Res. Inst., Transits of the Northwest Passage to the End of the 2014 Navigation Season 1 (2014), http://www.americanpolar.org/wp-content/uploads/2014/10/NWP-2014-X-5-layout-for-PDF.pdf. Note that this only accounts for complete transits of the Northwest Passage; “incomplete transits are too numerous to record.” Id. at 11.

41Id. at 8.

42Viñas, supra note 13.

43Ker Than, Arctic Meltdown Opens Fabled Northwest Passage, Live Sci. (Sept. 14, 2007, 10:59 AM), http://www.livescience.com/1884-arctic-meltdown-opens-fabled-northwest-passage.html.

44Weber, supra note 38.

45Headland, supra note 40, at 10.

46See Paul Waldie, A Reality Check on the Northwest Passage ‘boom’, Globe & Mail (Jan. 7, 2014), http://www.theglobeandmail.com/report-on-business/breakthrough/will-cold-dark-northwest-passage-see-more-ships/article16231502/.

47Ice Experts, supra note 30.

48See Ollie Williams, Arctic Ambition: The Race to Sail the Northwest Passage Heats Up, CNN (Sept. 8, 2014, 1:03 PM), http://edition.cnn.com/2014/09/08/sport/arctic-sailing-northwest-passage/.

49Jeremy Plester, Events That Mark Arctic Warming, Guardian (Oct. 26, 2014), http://www.theguardian.com/news/2014/oct/26/weatherwatch-arctic-warming-northwest-passage-siberia.

50Innes, supra note 29.

51Secretary Kerry Announces, supra note 1.

52See Keil, supra note 32 (showing that while shipping through the Northern Sea Route is on an upward trend, it accounts for a very small percentage of global trade and compares the seventy-one transits in 2013 with roughly 18,000 annual transits through the Suez Canal).

53See Alister Doyle, High Arctic Costs Deter Business Despite Thaw, Reuters (Oct. 27, 2014, 9:03 AM), http://www.reuters.com/article/2014/10/27/business-arctic-idUSL6N0SJ3YW20141027 (stating that other factors such as falling global oil prices are also leading businesses to look elsewhere for cheaper drilling opportunities). See also Steve Banker, Logistics Impacts From Widening the Panama Canal, Forbes (Sept. 6, 2013, 9:22 AM), http://www.forbes.com/sites/stevebanker/2013/09/06/logistics-impacts-from-widening-the-panama-canal/ (stating that the current Panama Canal widening project will help accommodate more traffic through the route, particularly a “new class of supersized cargo ships . . . that are more than twice as big as the historical cargo shipping fleet.”).

54Short and Sharp, Economist (June 16, 2012), http://www.economist.com/node/21556803.

55Vijay Sakhuja, Russia Commits to Building Northern Sea Route Infrastructure, Valdai Club (Aug. 8, 2014, 4:05 PM), http://valdaiclub.com/economy/71280.html. Russia has taken the lead in this regard, building several new icebreakers. See New Russian Nuclear-Powered Icebreakers Named ‘Arctic,’ ‘Siberia’ and ‘Ural’, Sputnik News (Aug. 7, 2014, 4:23 PM), http://en.ria.ru/russia/20140807/191814028/New-Russian-Nuclear-Powered-Icebreakers-Named-Arctic-Siberia-and.html. Russia has also started building military bases in its Arctic territory. Alexey Eremenko, Russia Starts Building Military Bases in the Arctic, Moscow Times (Sept. 8, 2014), http://www.themoscowtimes.com/business/article/russia-starts-building-military-bases-in-the-arctic/506650.html. At the same time, Russia’s overall Arctic strategy generally emphasizes the need for additional infrastructure investments. See Sakhuja, supra note 55.

56Philip Budzik, U.S. Energy Info. Admin., Arctic Oil and Natural Gas Potential 1 (2009), http://www.eia.gov/oiaf/analysispaper/arctic/pdf/arctic_oil.pdf.

57Ty McCormick, Arctic Sovereignty: A Short History, Foreign Pol’y (May 7, 2014), http://www.foreignpolicy.com/articles/2014/05/07/anthropology_of_an_idea_arctic_sovereignty_oil.

58See Antarctic Treaty art. 4, Dec. 1, 1959, 402 U.N.T.S. 71.

59McCormick, supra note 57.

60Scott G. Borgerson, Arctic Meltdown: The Economic and Security Implications of Global Warming, Foreign Aff., Mar.-Apr. 2008, at 64. See generally Michael Byers, Who Owns the Arctic? Understanding Sovereignty Disputes in the North (2010) [hereinafter Byers, Who Owns the Arctic?].

61See Jayaseelan Naidoo, The Scramble for the Arctic and the Dangers of Russia’s Race for Oil, Huffington Post (Nov. 6, 2013, 2:00 PM), http://www.huffingtonpost.com/jayaseelan-naidoo/the-scramble-for-the-arctic_b_4223661.html.

62Michael Byers, International Law and the Arctic 6 (2013) [hereinafter Byers, International Law and the Arctic].

63Denmark Challenges Russia and Canada Over North Pole, BBC News (Dec. 15, 2014), http://www.bbc.com/news/world-europe-30481309.

64See Tom Parfitt, Russia Plants Flag on North Pole Seabed, Guardian (Aug. 2, 2007), http://www.theguardian.com/world/2007/aug/02/russia.arctic. In 2007, Russia planted a flag at the North Pole, id., and resumed Cold War-era strategic bomber flights in the Arctic, see Russia Restarts Cold War Patrols, BBC News (Aug. 17, 2007), http://news.bbc.co.uk/2/hi/europe/6950986.stm. Russia has reopened Arctic military bases, see Karl Ritter, Cold War-Style Spy Games Return to Melting Arctic, Assoc. Press (June 11, 2014), http://bigstory.ap.org/article/cold-war-style-spy-games-return-melting-arctic; is adding new nuclear attack submarines to its Northern Fleet, see Matthew Bodner, Russia's Northern Fleet Gets New Nuclear Attack Submarine, Moscow Times (June 17, 2014), http://www.themoscowtimes.com/business/article/russia-s-northern-fleet-gets-new-nuclear-attack-submarine/502078.html; and plans to “deploy troops along the entire length of the Arctic,” see Thomas Nilsen, Russia Says No Need for NATO in Arctic, Expands Own Military Presence, Barents Observer (Oct. 22, 2014), http://barentsobserver.com/en/security/2014/10/russia-says-no-need-nato-arctic-expands-own-military-presence-22-10. For its part, Canada has bolstered its Arctic military forces, see Allan Woods, Canada Looking at Building Military Bases in Arctic, Star (July 14, 2011), http://www.thestar.com/news/canada/2011/07/14/star_exclusive_canada_looking_at_building_military_bases_in_arctic.html, and staked its own claim to the North Pole, see Jenny Johnson, Who Owns the North Pole? Debate Heats Up as Climate Change Transforms Arctic, Bloomberg (Apr. 4, 2014, 11:08 AM), http://www.bloomberg.com/news/2014-04-04/who-owns-the-north-pole-debate-heats-up-as-climate-change-transforms-arctic.html (arguing that the area “is central to defending [its] Arctic sovereignty”). But see Michael Byers, The North Pole is a Distraction, Globe & Mail (Aug. 20, 2014, 3:00 AM), http://www.theglobeandmail.com/globe-debate/the-north-pole-is-a-distraction/article20126915/ [hereinafter Byers, The North Pole is a Distraction].

65See, e.g., Ben Makuch, Cold War Games: Russia’s Ramping Up Its Military Presence in the Arctic, Vice Motherboard (Sept. 25, 2014, 10:40 AM), http://motherboard.vice.com/read/cold-war-games-russias-ramping-up-its-military-presence-in-the-arctic.

66McCormick, supra note 57.

67See Donald R. Rothwell, The Law of the Sea and Arctic Governance, 107 Am. Soc’y Int’l L. Proc. 271, 273 (2013).

68Alexander Stubb, Minister for Foreign Affairs of Fin., A New Era and Finland’s Arctic Policy, Keynote Speech at the 20th Anniversary Seminar of the Arctic Center (Sept. 29, 2009), http://www.formin.fi/public/default.aspx?contentid=171839.

69Paul C. Avey et al., The Ivory Tower Survey: How IR Scholars See the World, Foreign Pol’y (Jan. 3, 2012), http://foreignpolicy.com/2012/01/03/the-ivory-tower-survey/. Academics and policymakers alike continue to view the rising power of China as the biggest foreign policy issue facing the U.S. Id.

70See, e.g., Charles Glaser, Will China’s Rise Lead to War? Why Realism Does Not Mean Pessimism, Foreign Aff., Mar.-Apr. 2011, at 80 (noting that the “rise of China will likely be the most important international relations story of the twenty-first century”). China’s economic development has sparked endless debate as to whether China can rise peacefully to great power status. See, e.g., John J. Mearsheimer, The Gathering Storm: China’s Challenge to US Power in Asia, 3 Chinese J. Int’L Pol. 381, 381 (2010). Mearsheimer, the architect of the “offensive realism” school of thought in international relations, is one of the most vocal scholars predicting that “China cannot rise peacefully.” Id. at 382. In any event, many scholars view China’s rise to superpower status as an inevitability. See, e.g., Arvind Subramanian, The Inevitable Superpower: Why China’s Dominance is a Sure Thing, Foreign Aff., Sept.-Oct. 2011, at 67.

71China Country Profile—Overview, BBC News (Mar. 13, 2015), http://www.bbc.com/news/world-asia-pacific-13017877.

72China Overview, World Bank (Mar. 25, 2015), http://www.worldbank.org/en/country/china/overview.

73Mark Magnier, Lingling Wei & Ian Talley, China Economic Growth is Slowest in Decades, Wall Street J. (Jan. 19, 2015), http://www.wsj.com/articles/china-gdp-growth-is-slowest-in-24-years-1421719453 (stating that in 2013, China’s economy grew at a rate of 7.7%, while in 2014 the economy slowed to 7.4%). Some analysts argue that “the underlying causes for this slowdown are global, not China specific.” Lin Yifu, Western Analysts Are Wrong: China’s Economy is Going Strong, Huffington Post (Feb. 10, 2014), http://www.huffingtonpost.com/lin-yifu/western-analysts-china-economy_b_4762222.html. In any event, China is now the world’s second-fastest growing economy, lagging only behind India. Eric Bellman, India Passes China to Become Fastest-Growing Economy, Wall Street J. (Feb. 11, 2015), http://blogs.wsj.com/indiarealtime/2015/02/11/its-official-india-has-passed-china-to-become-the-worlds-fastest-growing-economy/.

74Michael Schuman, China’s Economy Continues to Defy Gravity. That May Not Be a Good Thing, Time (June 16, 2014), http://time.com/2990640/chinas-economy-continues-to-defy-gravity-that-may-not-be-a-good-thing/.

75Yifu, supra note 73.

76Brett Arends, It’s Official: America is Now No. 2, Mkt. Watch (Dec. 4, 2014, 11:18 AM), http://www.marketwatch.com/story/its-official-america-is-now-no-2-2014-12-04.

77Rainwater, supra note 4, at 64.

78China Overview, U.S. Energy Info. Admin., http://www.eia.gov/countries/cab.cfm?fips=CH (last updated Feb. 4, 2014).

79Id.

80Candace Dunn, China is Now the World’s Largest Net Importer of Petroleum and Other Liquid Fuels, U.S. Energy Info. Admin. (Mar. 24, 2014), http://www.eia.gov/todayinenergy/detail.cfm?id=15531#. China’s rising oil consumption alone “accounted for one-third of the world's oil consumption growth in 2013.” China Overview, supra note 78.

81China Overview, supra note 78.

82Michael Barris, China’s Oil Demand is Growing, US Agency Says, China Daily (Feb. 6, 2014, 12:52 PM), http://usa.chinadaily.com.cn/epaper/2014-02/06/content_17269251.htm.

83China Overview, supra note 78.

84See discussion supra Part I.A.

85See Rainwater, supra note 4, at 72–73.

86Chen Zhi, Xinhua Insight: Arctic Council Observer Status Guarantees China’s Legitimate Rights, Xinhuanet (May 16, 2013, 9:21 AM), http://news.xinhuanet.com/english/indepth/2013-05/16/c_132387742.htm.

87Michael Byers, China Could be the Future of Arctic Oil, Al Jazeera (Aug. 22, 2013, 2:09 PM), http://www.aljazeera.com/indepth/opinion/2013/08/2013821135829162420.html [hereinafter Byers, China Could be the Future of Arctic Oil].

88Id.

89Andreas Kuersten, Russian Sanctions, China and the Arctic, Diplomat (Jan. 3, 2015), http://thediplomat.com/2015/01/russian-sanctions-china-and-the-arctic/.

90Dunn, supra note 80.

91China Overview, supra note 78.

92Id.

93See Rainwater, supra note 4, at 65.

94Tore Knos & Michele Zebich-Knos, South Sudan: Oil, the Environment and Border Conflicts, Nat’l Geographic (Mar. 22, 2013), http://voices.nationalgeographic.com/2013/02/22/86550/.

95World Oil Transit Chokepoints, U.S. Energy Info. Admin., http://www.eia.gov/beta/international/regions-topics.cfm?RegionTopicID=WOTC (last updated Nov. 10, 2014).

96Annika Folkeson, Part 1: Key Facts on Strait of Hormuz, Iran Primer (Jan. 11, 2012, 9:20 AM), http://iranprimer.usip.org/blog/2012/jan/11/part-1-key-facts-strait-hormuz.

97Rosemary A. Kelanic, China’s Changing Oil Calculus, Nat’l Int. (Nov. 12, 2013), http://nationalinterest.org/commentary/chinas-changing-oil-calculus-9385.

98Id.

99Shashank Joshi, Can India Blockade China, Diplomat (Aug. 12, 2013), http://thediplomat.com/2013/08/can-india-blockade-china/.

100Ted Kemp, Crime on the High Seas: The World’s Most Pirated Waters, CNBC (Feb. 15, 2015), http://www.cnbc.com/id/101969104.

101Patrick Winn, The World Has a New Piracy Hotspot, Global Post (Dec. 11, 2014, 10:13 AM), http://www.globalpost.com/dispatch/news/regions/asia-pacific/indonesia/140326/malacca-strait-piracy-hotspot.

102But see Byers, International Law and the Arctic, supra note 62, at 261. Byers notes that non-state actors such as illegal immigrants and terrorists pose the greatest security threat in the Arctic, as they might “take advantage of ice-free waters to move contraband, people, or WMDs into North America or Europe, or between the Pacific and Atlantic Oceans.” Id. However, these are not significant threats at the present. See id.

103See discussion supra Part I.A.

104Jonathan Masters, The Thawing Arctic: Risks and Opportunities, Council on Foreign Rel. (Dec. 16, 2013), http://www.cfr.org/arctic/thawing-arctic-risks-opportunities/p32082.

105Kuersten, supra note 89.

106Darryl D’monte, China Spending More on Arctic Sea Route Research Than US, Bus. Standard (Mar. 14, 2013), http://www.business-standard.com/article/economy-policy/china-spending-more-on-arctic-sea-route-research-than-us-113031400028_1.html.

107Trude Pettersen, China Starts Commercial Use of Northern Sea Route, Barents Observer (Mar. 14, 2013), http://barentsobserver.com/en/arctic/2013/03/china-starts-commercial-use-northern-sea-route-14-03.

108D’monte, supra note 106.

109Hugh Stephens, Breaking the Ice: China’s Emerging Arctic Strategy, Diplomat (Aug. 27, 2012), http://thediplomat.com/2012/08/breaking-the-ice-chinas-emerging-arctic-strategy/. For a lengthier treatment of China’s Arctic strategy, see generally Rainwater, supra note 4.

110Rainwater, supra note 4, at 71.

111Anne-Marie Brady, Polar Stakes: China’s Polar Activities as a Benchmark for Intentions, Jamestown (July 19, 2012, 3:34 PM), http://www.jamestown.org/single/?no_cache=1&tx_ttnews%5Btt_news%5D=39647&tx_ttnews%5BbackPid%5D=7&cHash=99f7e4c63e504c25e7be08acfda148db#.VFhxa_nF98F.

112Paul McLeary, The Arctic: China Opens a New Strategic Front, World Pol. Rev. (May 19, 2010), http://www.worldpoliticsreview.com/articles/5558/the-arctic-china-opens-a-new-strategic-front.

113Aboard Xuelong, Arctic Ice Shrinkage Alarms Returning Chinese Expedition, Xinhuanet (Sept. 22, 2014, 4:36 PM), http://news.xinhuanet.com/english/china/2014-09/22/c_133662994.htm.

114McLeary, supra note 112.

115Wang Qian, New Icebreaker Planned by 2016: Officials, China Daily (Jan. 6, 2014), http://www.chinadaily.com.cn/china/2014-01/06/content_17216579.htm.

116Id.

117China Launches Arctic Station, Xinhuanet (July 28, 2004, 7:49 PM), http://news.xinhuanet.com/english/2004-07/28/content_1666797.htm.

118Thomas Nilsen, China–Nordic Arctic Research Center Opens in Shanghai, Barents Observer (Dec. 12, 2013), http://barentsobserver.com/en/arctic/2013/12/china-nordic-arctic-research-center-opens-shanghai-12-12.

119Zhang Yunlong & Ren Qinqin, China Defends Arctic Research, Xinhuanet (Jan. 31, 2012, 10:58 PM), http://news.xinhuanet.com/english/china/2012-01/31/c_122637030.htm.

120For example, China fears that Arctic warming will “turn the Arctic ecosystem upside down, affecting many animals that are adapted to a life with sea ice.” Stefan Rahmstorf, Silent Warning That Must be Heeded, China Daily (Oct. 21, 2011, 8:05 AM), http://usa.chinadaily.com.cn/opinion/2011-10/21/content_13945874.htm. These conditions will in turn “amplify global warming” and cause “sea levels worldwide [to] rise.” Id.

121Arthur Guschin, Understanding China’s Arctic Policies, Diplomat (Nov. 14, 2013), http://thediplomat.com/2013/11/understanding-chinas-arctic-policies/.

122Id.

123Byers, international law and the arctic, supra note 62, at 125.

124Kit Dawnay, China’s Ambitions in the Arctic, Current Intelligence (Mar. 19, 2013, 9:00 AM), http://www.currentintelligence.net/analysis/2013/3/19/chinas-ambitions-in-the-arctic.html.

125Johan Nylander, China a ‘Near-Arctic State’: Swedish Think Tank, Swedish Wire (May 11, 2012, 4:35 AM), http://www.swedishwire.com/business/13827-china-a-near-arctic-state-swedish-think-tank.

126Gwynn Guilford, What is China’s Arctic Game Plan?, Atlantic (May 16, 2013), http://www.theatlantic.com/china/archive/2013/05/what-is-chinas-arctic-game-plan/275894/.

127China Seeks Pragmatic Cooperation with Arctic Countries, Xinhuanet (Nov. 2, 2014), http://news.xinhuanet.com/english/china/2014-11/02/c_133759443.htm.

128See generally Rainwater, supra note 4.

129Gordon G. Chang, China’s Arctic Play, Diplomat (Mar. 9, 2010), http://thediplomat.com/2010/03/chinas-arctic-play/. In 2010, Chinese Rear Admiral Yin Zhuo famously pronounced that “China must play an indispensable role in Arctic exploration as we have one-fifth of the world’s population.” Id.

130Andrew Ward, Iceland Secures China Currency Swap Deal, Fin. Times (June 9, 2010, 10:45 PM), http://www.ft.com/intl/cms/s/0/81d100de-73fb-11df-87f5-00144feabdc0.html.

131Zhi, supra note 86.

132Martin Breum & Jorgen Chemnitz, No, Greenland Does Not Belong to China, N.Y. Times (Feb. 20, 2013), http://www.nytimes.com/2013/02/21/opinion/no-greenland-does-not-belong-to-china.html?_r=0.

133Kuersten, supra note 89.

134Id.

135See discussion infra Part II.C.

136Lilly Weidemann, International Governance of the Arctic Marine Environment: With Particular Emphasis on High Seas Fisheries 228 (2014). By contrast, the Antarctic is comprehensively regulated under the 1959 Antarctic Treaty. Id.

137Davor Vidas, The Polar Marine Environment in Regional Cooperation, in Protecting the Polar Marine Environment: Law and Policy for Pollution Prevention 102 (Davor Vidas ed., 2000).

138Weidemann, supra note 136.

139Id. at 45.

140The Emerging Arctic, Council on Foreign Rel., http://www.cfr.org/polarregions/emergingarctic/p32620#!/ (last visited Feb. 16, 2015).

141Id.

142Andrea Charron, Has the Arctic Council Become Too Big?, Int’l Rel. & Security Network (Aug. 15, 2014), http://www.isn.ethz.ch/Digital-Library/Articles/Detail/?id=182827.

143Rothwell, supra note 67, at 273.

144Robert C. De Tolve, At What Cost? America’s UNCLOS Allergy in the Time of “Lawfare”, 61 Naval L. Rev. 1, 2 (2012). UNCLOS codifies “centuries of state practice and opinio juris.” Byers, international law and the arctic, supra note 62, at 6.

145UNCLOS, supra note 6.

146De Tolve, supra note 144.

147Chronological Lists of Ratifications of, Accessions and Successions to the Convention and the Related Agreements as at 3 October 2014, U.N. Division for Ocean Aff. & L. Sea, http://www.un.org/depts/los/reference_files/chronological_lists_of_ratifications.htm# (last updated Jan. 7, 2015).

148Byers, international law and the arctic, supra note 62, at 28.

149Stuart B. Kaye, Territorial Sea Baselines Along Ice Covered Coasts: International Practice and Limits of the Law of the Sea, 35 Ocean Dev. & Int’l L. 75, 95 n.7 (2004).

150Id. at 77.

151Id. at 95 n.7.

152See Byers, international law and the arctic, supra note 62, at 6.

153Arctic Ocean Conference, Ilulissat Declaration, 1–2 (May 28, 2008), http://www.oceanlaw.org/downloads/arctic/Ilulissat_Declaration.pdf.

154Donald R. Rothwell, International Law and Arctic Shipping, 22 Mich. St. Int’l. L. Rev. 67, 72 (2013).

155Ilulissat Declaration, supra note 153.

156Id.

157John B. Bellinger, Treaty on Ice, N.Y. Times (Jun. 23, 2008), http://www.nytimes.com/2008/06/23/opinion/23bellinger.html?_r=2&.

158See Ilulissat Declaration, supra note 153.

159Byers, international law and the arctic, supra note 62, at 6.

160UNCLOS, supra note 6, art. 2.

161Byers, international law and the arctic, supra note 62, at 6.

162UNCLOS, supra note 6, art. 57.

163Id. arts. 76–77.

164UNCLOS, supra note 6, pmbl.

165One analyst estimated that roughly eighty-eight percent of the Arctic seabed would likely be claimed by the circumpolar states. See Joseph Spears, The Snow Dragon Moves into the Arctic Ocean Basin, 11 China Brief 1, 12–13 (2011).

166Michael Byers, Rules for the North Pole, N.Y. Times (Aug. 18, 2011), http://www.nytimes.com/2011/08/19/opinion/19iht-edbyers19.html [hereinafter Byers, Rules for the North Pole].

167Id.

168Richard Milne, Denmark’s Claim to North Pole Fans Geopolitical Rivalry, Fin. Times (Dec. 18, 2014, 6:29 PM), http://www.ft.com/intl/cms/s/0/49a5a1ca-85e3-11e4-b11b-00144feabdc0.html#axzz3P3558ktp.

169Id.

170Johnson, supra note 64.

171Id.

172Milne, supra note 168.

173Frozen Conflict, Economist (Dec. 20, 2014), http://www.economist.com/news/international/21636756-denmark-claims-north-pole-frozen-conflict.

174Byers, The North Pole is a Distraction, supra note 64.

175Johnson, supra note 64.

176Id.

177Milne, supra note 168.

178See UNCLOS, supra note 6, art. 76.

179Byers, International Law and the Arctic, supra note 62, at 6.

180See Spears, supra note 165.

181See Byers, China Could be the Future of Arctic Oil, supra note 87.

182See id.

183See generally Byers, International law and the arctic, supra note 62, at 129–131.

184UNCLOS, supra note 6, art. 17.

185Id. art. 58.

186Id. art. 87.

187Id. art. 8.

188Byers, International Law and the Arctic, supra note 62, at 130.

189See discussion supra Part I.A.

190Byers, International Law and the Arctic, supra note 62, at 129.

191Corfu Channel (UK v. Alb.), Judgment, 1949 I.C.J. Rep. 4, .the Arctic Council Secretariat,reventions, not use them to benefit or disclose for any reason not expressly permitted by rules 28 (Apr. 9).

192Byers, International Law and the Arctic, supra note 62, at 130; see also UNCLOS, supra note 6, art. 39.

193Byers, International Law and the Arctic, supra note 62, at 130. Foreign vessels exercising this right must “refrain from any activities other than those incident to their normal modes of continuous and expeditious transit unless rendered necessary by force majeure or by distress.” UNCLOS, supra note 6, art. 39.

194Byers, International Law and the Arctic, supra note 62, at 130.

195Id. at 130–131.

196Id. at 130.

197Id. at 134.

198Id. at 149.

199Id.

200See id. at 144–46.

201Id. at 144.

202See discussion supra Part I.A.

203See discussion supra Part I.A.

204Declaration on the Establishment of the Arctic Council ¶ 1, Sept. 19, 1996, 35 I.L.M. 1382 [hereinafter Ottawa Declaration].

205Byers, International Law and the Arctic, supra note 62, at 8.

206Ottawa Declaration, supra note 204, ¶ 1(a). The Declaration contains just two footnotes, one of which reads “The Arctic Council should not deal with matters related to military security.” Id.

207Id.

208The Arctic Council conducts activities through working groups, task forces, and expert groups. U.S. Gov't Accountability Off., GAO-14-435, Arctic Issues: Better Direction and Management of Voluntary Recommendations Could Enhance U.S. Arctic Council Participation 16 (2014).

209See generally Susan Joy Hassol, Impacts of a Warming Arctic: Arctic Climate Impact Assessment (2004), http://www.amap.no/arctic-climate-impact-assessment-acia.

210See generally Henry P. Huntington, Arctic Monitoring and Assessment Programme, Arctic Oil and Gas 2007 (2007), http://www.amap.no/documents/doc/arctic-oil-and-gas-2007/71.

211See generally Arctic Council, Arctic Marine Shipping Assessment 2009 Report (2009), http://www.arctic.noaa.gov/detect/documents/AMSA_2009_Report_2nd_print.pdf.

212Paula Kankaanpaa & Oran R. Young, The Effectiveness of the Arctic Council, 31 Polar Res. 1, 1 (2012).

213Alison Ronson, Political Climate Change: The Evolving Role of the Arctic Council, 33 Northern Rev. 95, 100 (2011). See also Kankaanpaa & Young, supra note 212, at 10 (stating that the Arctic Council is widely considered a “policy-shaping body rather than a policy-making body”).

214Evan T. Bloom, Establishment of the Arctic Council, 93 Am. J. Int’l L. 712, 712 (1999).

215See Henry G. Schermers & Niels M. Blokker, International Institutional Law: Unity Within Diversity §§ 34–36 (5th ed. 2011).

216Id. § 33.

217Some legal scholars question whether a founding treaty is actually required to qualify as an international organization. See, e.g., Byers, International Law and the Arctic, supra note 62, at 9 n.36 (noting that “[a]lthough the Arctic Council is based on a declaration rather than a founding treaty, such a treaty is not a necessary condition for an international organization”).

218Waliul Hasanat, Definitional Constraints Regarding Soft Law, 3 AALCO Q. Bull. 8, 21 (2007).

219Bloom, supra note 214, at 714.

220See Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations art. 6, opened for signature Mar. 21, 1986, 25 I.L.M. 543 [hereinafter Vienna Convention]. The preamble to the Convention states that “international organizations possess the capacity to conclude treaties which is necessary for the exercise of their functions and fulfillment of their purposes.” Id. pmbl. This adopts the International Court of Justice’s approach in Certain Expenses of the United Nations, Advisory Opinion, 1962 I.C.J. Rep. 151, at 167–68 (July 20).

221Ronson, supra note 213.

222Bloom, supra note 214, at 718. And even if members implement recommendations, the Council has difficulty evaluating such implementation as it possesses limited enforcement and monitoring power. Ronson, supra note 213.

223Arctic Council, Nuuk Declaration, Seventh Ministerial Meeting, at 2 (May 12, 2011), http://arctic-council.npolar.no/accms/export/sites/default/en/meetings/2011-nuuk-ministerial/docs/Nuuk_Declaration_FINAL.pdf.

224See, e.g., Byers, International Law and the Arctic, supra note 62, at 9.

225See Schermers & Blokker, supra note 215, § 33.

226Charron, supra note 142.

227Host Country Agreement Between the Government of the Kingdom of Norway and the Arctic Council Secretariat art. 2 (Mar. 2012). Under Article 2 of the Host Country Agreement, “The Secretariat has legal personality and capacity to perform its functions in Norway. It has, in particular, the capacity to contract, to acquire and dispose of movable and immovable property, and to institute and be a party to legal proceedings.” Id.

228Erik J. Molenaar, Alex G. Oude Elferink & Donald R. Rothwell, The Law of the Sea and the Polar Regions: Interactions between Global and Regional Regimes 41 (2013) (stating that “the Arctic Council still operates without legal personality”).

229Rebecca H. Pincus & Saleem H. Ali, Diplomacy on Ice: Energy and the Environment in the Arctic and Antarctic 53 (2015).

230Timo Koivurova, Increasing Relevance of Treaties: The Case of the Arctic, AJIL Unbound (May 6, 2014, 3:03 PM), http://www.asil.org/blogs/increasing-relevance-treaties-case-arctic-agora-end-treaties.

231See generally Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic (May 12, 2011), https://oaarchive.arctic-council.org/bitstream/handle/11374/531/Arctic_SAR_Agreement_EN_FINAL_for_signature_21-Apr-2011%20%281%29.pdf?sequence=1&isAllowed=y.

232Byers, International Law and the Arctic, supra note 62, at 9. In other words, members used the Council as a forum to conclude a treaty amongst themselves; however, the Council itself did not conclude the treaty, and thus it continues to operate without legal personality. See Vienna Convention, supra note 220.

233See generally Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic (May 15, 2013), https://oaarchive.arctic-council.org/bitstream/handle/11374/529/MM08_agreement_on_oil_pollution_preparedness_and_response_%20in_the_arctic_formatted%20%282%29.pdf?sequence=1&isAllowed=y.

234Kankaanpaa & Young, supra note 212, at 10.

235Id. at 1.

236The Council’s six working groups, each with its own specific mandate, are the Arctic Contaminants Action Program (ACAP); Arctic Monitoring and Assessment Programme (AMAP); Conservation of Arctic Flora and Fauna (CAFF); Emergency Prevention, Preparedness and Response (EPPR); Protection of the Arctic Marine Environment (PAME); and Sustainable Development Working Group (SDWG). See Working Groups, Arctic Council (Apr. 15, 2011), http://www.arctic-council.org/index.php/en/about-us/working-groups.

237Member States, Arctic Council, http://www.arctic-council.org/index.php/en/about-us/member-states (last updated Sept. 10, 2015). In 2013, each of the eight members contributed $58,000 per year (a 12.5% equal contribution) toward the Secretariat budget. Arctic Council Secretariat, Indicative Budget for 2013, at 5 (2012).

238Charron, supra note 142.

239Id.

240Hasanat, supra note 218, at 19.

241Charron, supra note 142. See also Press Release, Walter and Duncan Gordon Found., Eyeing Resources: India, China, Brazil, Japan, Other Countries Want a Voice on Arctic Council (Jan. 16, 2012) [hereinafter Eyeing Resources], http://gordonfoundation.ca/press-release/438 (“The Arctic Council is the only international organization that gives indigenous peoples a formal place at the table”).

242There are currently twelve non-Arctic states and twenty organizations admitted as permanent observers, including nine intergovernmental organizations and eleven non-governmental organizations. Observers, Arctic Council (Apr. 27, 2011), http://www.arctic-council.org/index.php/en/about-us/arctic-council/observers. With a ratio of “4 observers for every Member State with decision-making clout,” the Council is fairly lopsided, posing potential problems. Charron, supra note 142.

243Ottawa Declaration, supra note 204, ¶ 3.

244Kathrin Keil, A New Model for International Cooperation, Arctic Inst. (Feb 20, 2014), http://www.thearcticinstitute.org/2014/02/a-new-model-for-international.html. See also Charron, supra note 142.

245Matthew Willis & Duncan Depledge, How We Learned to Stop Worrying About China's Arctic Ambitions: Understanding China's Admission to the Arctic Council, 2004-2013, Arctic Inst. (Sept. 22, 2014), http://www.thearcticinstitute.org/2014/09/092214-China-arctic-ambitions-arctic-council.html.

246Mia Bennett, Round-up from the Arctic Council Ministerial Meeting, Foreign Pol’y Ass’n (May 1, 2009), http://foreignpolicyblogs.com/2009/05/01/round-up-from-the-arctic-council-ministerial-meeting-22/.

247Willis & Depledge, supra note 245.

248As the first of the new applicants, China had its application for observer status denied three times (at each of the Ministerial Meetings occurring in 2007, 2009, and 2011), before finally being accepted in 2013. See Rebecca Lindegren, Arctic Council Adds Five Permanent Asian Observers, Int’l Rel. Online Blog (June 13, 2013), http://ironline.american.edu/arctic-council-adds-five-permanent-asian-observers/.

249Willis & Depledge, supra note 245.

250See Eyeing Resources, supra note 241.

251Bloom, supra note 214, at 718.

252Senior Arctic Officials (SAO) Report to Ministers 50–51 (2011) [hereinafter SAO Report].

253A Warmer Welcome, Economist (May 18, 2013), http://www.economist.com/news/international/21578040-arctic-council-admits-its-first-permanent-asian-observers-warmer-welcome. See also SAO Report, supra note 252, at 51 (“[O]bservers should continue to make relevant contributions through their engagement in the Arctic Council primarily at the level of Working Groups”).

254SAO Report, supra note 252, at 51. However, observers’ “financial contributions . . . may not exceed the financing from Arctic States, unless otherwise decided.” Id.

255Id.

256A Warmer Welcome, supra note 253.

257SAO Report, supra note 252, at 51.

258See generally Arctic Council, Arctic Council Observer Manual for Subsidiary Bodies (2011).

259SAO Report, supra note 252.

260Willis & Depledge, supra note 245.

261SAO Report, supra note 252, at 50.

262Id.

263Id. These conditions expand upon the Ottawa Declaration’s brief statement that observers must be able to “contribute to [the Council’s] work.” Ottawa Declaration, supra note 204, ¶ 3.

264See, e.g., Byers, International Law and the Arctic, supra note 62, at 255.

265Chang, supra note 129.

266Lan Lijun, Ambassador of the People’s Republic of China to Canada, Statement at the Meeting between the Swedish Chairmanship of the Arctic Council and Observers (Nov. 6, 2012), http://www.arctic-council.org/images/PDF_attachments/Observer_DMM_2012/ACOBSDMMSE01_Stockholm_2012_Observer_Meeting_Statement_Ambassador_Lan_Lijun_China.pdf.

267For example, after China gained observer status in 2013, Chinese Foreign Ministry spokesman Hong Lei reaffirmed that “China recognizes the Arctic countries’ sovereignty, sovereign rights and jurisdiction in the Arctic area, as well as their leading role in the Arctic Council.” Zhi, supra note 86.

268Willis & Depledge, supra note 245.

269See discussion supra Part I.A.

270Willis & Depledge, supra note 245.

271Id.

272See id.

273Id.

274Arctic Council Secretariat, Kiruna Declaration, Eighth Ministerial Meeting, at 6 (May 15, 2013), https://oaarchive.arctic-council.org/bitstream/handle/11374/93/MM08_Kiruna_Declaration_final_formatted.pdf?sequence=5&isAllowed=y [hereinafter Kiruna Declaration]. See also Myers, supra note 2.

275Kiruna Declaration, supra note 274.

276Andreas Østhagen, In or Out? The Symbolism of the EU’s Arctic Council Bid, Arctic Inst. (June 18, 2013), http://www.thearcticinstitute.org/2013/06/in-or-out-symbolism-of-eus-arctic.html. The Council noted that it “affirmatively receive[d] the application of the EU for observer status,” but that it “defer[ed] a final decision on implementation until the Council ministers are agreed . . . that the concerns of Council members . . . are resolved.” Kiruna Declaration, supra note 274.

277Nikolaj Nielsen, China Beats EU to Arctic Council Membership, euobserver (May 16, 2013), https://euobserver.com/eu-china/120138.

278Nils Wang, Arctic Security–An Equation with Multiple Unknowns, 15 J. Mil. & Strategic Stud. 16, 17 (2013).

279Østhagen, supra note 276.

280Id.

281Id.

282Id.

283SAO Report, supra note 252, at 50.

284Charron, supra note 142.

285See discussion supra Part II.B.2.

286Weidemann, supra note 136, at 228.

287SAO Report, supra note 252, at 50. Observers “recognize Arctic States’ sovereignty, sovereign rights and jurisdiction in the Arctic.” Id.

288Myers, supra note 2.

289Wang, supra note 278. Observers are required to “recognize that an extensive legal framework applies to the Arctic Ocean, including, notably, the Law of the Sea, and that this framework provides a solid foundation for responsible management of this ocean.” SAO Report, supra note 252, at 50.

290See discussion supra Part II.B.2.

291See discussion supra Part II.C.2.

292Charron, supra note 142.

293Zhi, supra note 86.

294Id.

295Chris Irvine, China Granted Permanent Observer Status at Arctic Council, Telegraph (May 15, 2013), http://www.telegraph.co.uk/news/worldnews/asia/china/10060624/China-granted-permanent-observer-status-at-Arctic-Council.html.

296See discussion supra Part II.C.3.

297See discussion supra Part II.B.2.

298See discussion supra Part II.B.3.

299SAO Report, supra note 252, at 51.

300Jane George, Arctic Council: EU Out But China Likely In, Academics Say, Nunatsiaq Online (Apr. 29, 2013, 3:39 PM), http://www.nunatsiaqonline.ca/stories/article/65674arctic_council_eu_out_but_china_likely_in_academics_say/.

301Kankaanpaa & Young, supra note 212, at 4. Indeed, the “greatest hindrance to the effectiveness of the council is the lack of a reliable source of funding to cover general operating expenses.” Id.

302Weidemann, supra note 136, at 56. If a project simply “drops from the agenda of the funding state and no other [member] is willing to take over, it may fail before being completed.” Id. This happened, for example, to the Circumpolar Protected Areas Network project in 2010. See id.

303SAO Report, supra note 252, at 51.

304Aldo Chircop, Should Observer Participation in Arctic Ocean Governance be Enhanced?, Can. Naval Rev., Winter 2012, at 2, 3.

305Charron, supra note 142.

306Kankaanpaa & Young, supra note 212, at 4.

307Id. at 11.

308See Rainwater, supra note 4, at 71–73.

309The Arctic Circle is “open to all.” Paul Koring, New Arctic Group Gives Canada Political Competition, Globe & Mail (Apr. 16, 2013, 3:30 AM), http://m.theglobeandmail.com/news/politics/new-arctic-group-gives-canada-political-competition/article11243970?service=mobile.

310Global Leaders Gather for Inaugural Arctic Circle Assembly Oct. 12-14, 2013, in Reykjavik, Iceland, PR Newswire (Oct. 7, 2013), http://www.prnewswire.co.uk/news-releases/global-leaders-gather-for-inaugural-arctic-circle-assembly-october-12-14-2013-in-reykjavik-iceland-226735641.html [hereinafter Global Leaders Gather]. The forum grants all stakeholders an equal say under “one large ‘open tent.’” Id.

311Koring, supra note 309. Indeed, at its inaugural assembly in 2013, the Arctic Circle was likely “the largest and most diverse gathering of its kind,” with over 900 participants from forty countries, including Arctic Council observers such as China and India. Global Leaders Gather, supra note 310.

312Willis & Depledge, supra note 245.

313Kankaanpaa & Young, supra note 212, at 13.

314Chircop, supra note 304, at 3.

315Kankaanpaa & Young, supra note 212, at 4.

316SAO Report, supra note 252, at 51.

317See Eyeing Resources, supra note 241.

318Kankaanpaa & Young, supra note 212, at 12.

319Id.

320Kaisa Pulkkinen, The Arctic Council and the Northeast Asian Observers, UI Brief (Swedish Inst. Int’l Affairs, Stockholm), Nov. 22, 2013, at 1, 5.

321Innes, supra note 29.

322Kankaanpaa & Young, supra note 212, at 12–13.

Executive Notes and Comments Editor, Emory International Law Review; J.D. Candidate, Emory University School of Law (2016); B.A., magna cum laude, Pepperdine University (2013). The author would like to thank Robert Ahdieh, Vice Dean of Emory Law School, for his advice and suggestions on this Comment.