【Geographic Characteristics of the Arctic and Relevant States】
In contrast to the South Pole, which is located on a continent, the North Pole is surrounded by ocean. The law of the sea therefore plays a central role in international legal order in the Arctic. There are two distinct groups of States: the eight Arctic States (A8), which have territory north of the Arctic Circle at 66°33′ N and are the member of the Arctic Council, and, the five Arctic Ocean coastal States (A5), which surround the central Arctic Ocean. There are currently no interstate territorial disputes in the Arctic. The last remaining dispute, between Canada and Denmark over Hans Island, was resolved by an agreement reached in June 2022. Although no territorial disputes remain, not all maritime boundaries, including those concerning exclusive economic zones and continental shelves, have been delimited.
【Formation of the International Legal Order in the Arctic】
Before the end of the Cold War, international cooperation in the Arctic was limited. Notable exceptions were the 1920 Svalbard Treaty and the 1973 Agreement on the Conservation of Polar Bears. The former recognizes Norway’s sovereignty over the Svalbard archipelago while granting nationals of the contracting parties equal rights to engage in activities such as fishing and mining. The latter was concluded by the A5 and, in principle, prohibits the taking of polar bears. In 1982, the United Nations Convention on the Law of the Sea (UNCLOS), often called the “constitution of the oceans,” was adopted, establishing the foundation of the law-of-the-sea regime applicable to the Arctic Ocean.
Substantive international cooperation in the Arctic began following the 1987 Murmansk speech by Mikhail Gorbachev, General Secretary of the Communist Party of the Soviet Union. Cooperative frameworks such as the Arctic Council and the Barents Euro-Arctic Council were subsequently established, although these bodies are not international organizations created by legally binding treaties. From the mid-2000s, international interest in the Arctic rose rapidly as the decline in sea ice and other environmental changes became increasingly apparent. In 2007, a Russian submersible placed a Russian flag on the seabed beneath the North Pole, fueling concerns about interstate competition over resources. In response, the Danish government invited the A5 to Ilulissat, Greenland, in 2008 for the Arctic Ocean Conference.
【The Ilulissat Declaration and the Basic Architecture of the International legal Order in the Arctic 】
The Ilulissat Declaration sets out the basic architecture of the current international legal order in the Arctic. Its core message can be summarized in two points. First, the Arctic Ocean is not a lawless space; an extensive international legal framework including the law of the sea, applies to it. Second, because the framework provides a solid foundation, there is no need to create a new comprehensive “Arctic Treaty” comparable to the Antarctic Treaty System.
It should be noted, however, that the declaration rejected the need for a comprehensive international legal regime; it did not rule out treaties addressing specific sectors. Indeed, the 2010s saw the conclusion of the Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic, the Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic, the Agreement on Enhancing International Arctic Scientific Cooperation, and the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean (CAOFA). Following Russia’s invasion of Ukraine in 2022, regional cooperation centered on the Arctic Council seriously stagnated. Importantly, however, global frameworks that also apply to the Arctic Ocean have continued to develop, including the adoption of the Agreement under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction (BBNJ Agreement) and amendments to the International Code for Ships Operating in Polar Waters (Polar Code).
【Law of the Sea Applicable to the Arctic Ocean】
The law of the sea divides the ocean into maritime zones such as the territorial sea, exclusive economic zone (EEZ), continental shelf, high seas, and deep seabed, and defines the rights and obligations of States in each zone. Coastal States may establish a territorial sea extending up to 12 nautical miles from their baselines and an EEZ extending up to 200 nautical miles. With respect to the seabed, the continental shelf of a coastal State extends, as a general rule, to 200 nautical miles; where the continental margin extends farther, the State may establish the outer limits of an extended continental shelf on the basis of recommendations from the Commission on the Limits of the Continental Shelf (CLCS).
Of the five maritime boundaries between neighboring Arctic Ocean coastal States, four have been delimited to date. The Canada-Denmark boundary was also delimited in 2022 in conjunction with the settlement of the Hans Island dispute, leaving the Beaufort Sea between Canada and the United States as the principal area where a maritime boundary remains undelimited. With regard to the seabed of the central Arctic Ocean, Canada, Denmark, Norway, and Russia have submitted information concerning extended continental shelves to the CLCS. Around the North Pole, the claims of Canada, Denmark, and Russia overlap, meaning that boundary-delimitation negotiations among the States concerned will be required. Although the United States is not a party to UNCLOS, it announced the outer limits of its extended continental shelf in December 2023 on the basis of customary international law. Despite overlapping claims, the important point is that, to date, the process has proceeded in accordance with UNCLOS procedures.
【Resource Development, Navigation, and Marine Scientific Research】
With respect to natural-resource development, coastal States may exploit resources within their territorial seas exclusively on the basis of sovereignty, while in their EEZs and continental shelves they possess sovereign rights for the exploration and exploitation of natural resources. These sovereign rights differ from the comprehensive sovereignty exercised over State territory because they are limited to specified purposes, such as resource development. Freedom of fishing applies on the high seas, but it is subject to regulation under instruments such as the United Nations Fish Stocks Agreement and the CAOFA in order to prevent resource depletion. Mineral resources of the deep seabed are regarded as the “common heritage of mankind” and are developed under the regulation of the International Seabed Authority.
With respect to navigation, foreign vessels enjoy the right of innocent passage through the territorial sea, while freedom of navigation is guaranteed in the EEZ and on the high seas. By contrast, there is no right of innocent passage through internal waters which are subject to sovereignty of coastal States. In the Arctic Ocean, it has been debated whether Russian and Canadian domestic regulations governing Northern Sea Route and Northwest Passage respectively, which requires prior authorization, icebreaker escort, and the carriage of pilots etc, are consistent with international law. Canada, in particular, considers the Northwest Passage to be internal waters, while the United States regards it as an international strait. Article 234 of UNCLOS also grants coastal States enhanced right to adopt and enforce laws and regulations to prevent marine pollution in ice-covered areas, raising the question of how far the regulations imposed by the two States can be justified under that provision.
As a general rule, marine scientific research conducted in the territorial sea, EEZ, or continental shelf requires the consent of the coastal State. In the central Arctic Ocean, where continental-shelf delimitation has not yet been completed, questions may arise as to which State’s consent is required. Scientific research is free on the high seas and in the deep seabed, but obligations under the BBNJ Agreement must be observed, including those relating to environmental impact assessments, notification concerning the collection of marine genetic resources, and benefit-sharing.
【Sector-Specific Treaties Relating to the Arctic】
The 1973 Agreement on the Conservation of Polar Bears prohibits, in principle, the taking of polar bears and has since evolved to address environmental changes such as the decline in sea ice. Meetings of the parties have continued online even after Russia’s invasion of Ukraine. However, because it is a closed treaty limited to the A5, Japan cannot become a party. The Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic and the Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic are likewise closed treaties whose parties are limited to the A8; they establish rules for notification, response, and interstate cooperation when accidents occur.
The Agreement on Enhancing International Arctic Scientific Cooperation is designed to facilitate scientific activity in the Arctic by reducing obstacles relating to the entry and exit of researchers, access to research facilities, and the transfer of samples and data. Japan participated in the negotiations and expressed its views, and under certain circumstances researchers from non-Arctic States may also benefit from the Agreement. Although meetings of the parties have not been held since Russia’s invasion of Ukraine, the Agreement remains an important framework for Japan, which places scientific research at the center of its Arctic policy.
The CAOFA establishes precautionary measures before commercial fishing begins, with a mechanism for collecting scientific information and assessing whether sustainable commercial fisheries are possible. In addition to the A5, China, Iceland, Japan, the Republic of Korea, and the European Union participate in the Agreement, making it nearly the only Arctic regional treaty to which Japan is a party. The conference of the parties, scientific research, and the development of rules for exploratory fishing have continued even after Russia’s invasion of Ukraine, and Japan has contributed by, among other things, hosting a meeting of a subsidiary body of the conference.
The Polar Code is a global framework adopted under the International Maritime Organization (IMO). It sets standards for the design and construction of ships, equipment, operations, and crew training for vessels operating in polar waters. Amendments adopted in 2023 extended some of its requirements to categories of vessels that had previously fallen outside its scope, including fishing vessels above a specified size.
【Arctic Cooperation after Russia’s Invasion of Ukraine and Implications for Japan】
In light of developments following Russia’s invasion of Ukraine, the prospects for concluding new regional treaties among the Arctic states is limited. However, global international legal frameworks that also apply to the Arctic Ocean, such as the BBNJ Agreement and the Polar Code, are likely to continue developing.
From Japan’s perspective, given its emphasis on the rule of law and research and development, Japan should continue to contribute to the implementation of Arctic regional treaties in particular the CAOFA through scientific research and the development of international rules etc, while closely following the development of global frameworks such as those under the IMO and the BBNJ Agreement.
【Geographic Characteristics of the Arctic and Relevant States】
In contrast to the South Pole, which is located on a continent, the North Pole is surrounded by ocean. The law of the sea therefore plays a central role in international legal order in the Arctic. There are two distinct groups of States: the eight Arctic States (A8), which have territory north of the Arctic Circle at 66°33′ N and are the member of the Arctic Council, and, the five Arctic Ocean coastal States (A5), which surround the central Arctic Ocean. There are currently no interstate territorial disputes in the Arctic. The last remaining dispute, between Canada and Denmark over Hans Island, was resolved by an agreement reached in June 2022. Although no territorial disputes remain, not all maritime boundaries, including those concerning exclusive economic zones and continental shelves, have been delimited.
【Formation of the International Legal Order in the Arctic】
Before the end of the Cold War, international cooperation in the Arctic was limited. Notable exceptions were the 1920 Svalbard Treaty and the 1973 Agreement on the Conservation of Polar Bears. The former recognizes Norway’s sovereignty over the Svalbard archipelago while granting nationals of the contracting parties equal rights to engage in activities such as fishing and mining. The latter was concluded by the A5 and, in principle, prohibits the taking of polar bears. In 1982, the United Nations Convention on the Law of the Sea (UNCLOS), often called the “constitution of the oceans,” was adopted, establishing the foundation of the law-of-the-sea regime applicable to the Arctic Ocean.
Substantive international cooperation in the Arctic began following the 1987 Murmansk speech by Mikhail Gorbachev, General Secretary of the Communist Party of the Soviet Union. Cooperative frameworks such as the Arctic Council and the Barents Euro-Arctic Council were subsequently established, although these bodies are not international organizations created by legally binding treaties. From the mid-2000s, international interest in the Arctic rose rapidly as the decline in sea ice and other environmental changes became increasingly apparent. In 2007, a Russian submersible placed a Russian flag on the seabed beneath the North Pole, fueling concerns about interstate competition over resources. In response, the Danish government invited the A5 to Ilulissat, Greenland, in 2008 for the Arctic Ocean Conference.
【The Ilulissat Declaration and the Basic Architecture of the International legal Order in the Arctic 】
The Ilulissat Declaration sets out the basic architecture of the current international legal order in the Arctic. Its core message can be summarized in two points. First, the Arctic Ocean is not a lawless space; an extensive international legal framework including the law of the sea, applies to it. Second, because the framework provides a solid foundation, there is no need to create a new comprehensive “Arctic Treaty” comparable to the Antarctic Treaty System.
It should be noted, however, that the declaration rejected the need for a comprehensive international legal regime; it did not rule out treaties addressing specific sectors. Indeed, the 2010s saw the conclusion of the Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic, the Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic, the Agreement on Enhancing International Arctic Scientific Cooperation, and the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean (CAOFA). Following Russia’s invasion of Ukraine in 2022, regional cooperation centered on the Arctic Council seriously stagnated. Importantly, however, global frameworks that also apply to the Arctic Ocean have continued to develop, including the adoption of the Agreement under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction (BBNJ Agreement) and amendments to the International Code for Ships Operating in Polar Waters (Polar Code).
【Law of the Sea Applicable to the Arctic Ocean】
The law of the sea divides the ocean into maritime zones such as the territorial sea, exclusive economic zone (EEZ), continental shelf, high seas, and deep seabed, and defines the rights and obligations of States in each zone. Coastal States may establish a territorial sea extending up to 12 nautical miles from their baselines and an EEZ extending up to 200 nautical miles. With respect to the seabed, the continental shelf of a coastal State extends, as a general rule, to 200 nautical miles; where the continental margin extends farther, the State may establish the outer limits of an extended continental shelf on the basis of recommendations from the Commission on the Limits of the Continental Shelf (CLCS).
Of the five maritime boundaries between neighboring Arctic Ocean coastal States, four have been delimited to date. The Canada-Denmark boundary was also delimited in 2022 in conjunction with the settlement of the Hans Island dispute, leaving the Beaufort Sea between Canada and the United States as the principal area where a maritime boundary remains undelimited. With regard to the seabed of the central Arctic Ocean, Canada, Denmark, Norway, and Russia have submitted information concerning extended continental shelves to the CLCS. Around the North Pole, the claims of Canada, Denmark, and Russia overlap, meaning that boundary-delimitation negotiations among the States concerned will be required. Although the United States is not a party to UNCLOS, it announced the outer limits of its extended continental shelf in December 2023 on the basis of customary international law. Despite overlapping claims, the important point is that, to date, the process has proceeded in accordance with UNCLOS procedures.
【Resource Development, Navigation, and Marine Scientific Research】
With respect to natural-resource development, coastal States may exploit resources within their territorial seas exclusively on the basis of sovereignty, while in their EEZs and continental shelves they possess sovereign rights for the exploration and exploitation of natural resources. These sovereign rights differ from the comprehensive sovereignty exercised over State territory because they are limited to specified purposes, such as resource development. Freedom of fishing applies on the high seas, but it is subject to regulation under instruments such as the United Nations Fish Stocks Agreement and the CAOFA in order to prevent resource depletion. Mineral resources of the deep seabed are regarded as the “common heritage of mankind” and are developed under the regulation of the International Seabed Authority.
With respect to navigation, foreign vessels enjoy the right of innocent passage through the territorial sea, while freedom of navigation is guaranteed in the EEZ and on the high seas. By contrast, there is no right of innocent passage through internal waters which are subject to sovereignty of coastal States. In the Arctic Ocean, it has been debated whether Russian and Canadian domestic regulations governing Northern Sea Route and Northwest Passage respectively, which requires prior authorization, icebreaker escort, and the carriage of pilots etc, are consistent with international law. Canada, in particular, considers the Northwest Passage to be internal waters, while the United States regards it as an international strait. Article 234 of UNCLOS also grants coastal States enhanced right to adopt and enforce laws and regulations to prevent marine pollution in ice-covered areas, raising the question of how far the regulations imposed by the two States can be justified under that provision.
As a general rule, marine scientific research conducted in the territorial sea, EEZ, or continental shelf requires the consent of the coastal State. In the central Arctic Ocean, where continental-shelf delimitation has not yet been completed, questions may arise as to which State’s consent is required. Scientific research is free on the high seas and in the deep seabed, but obligations under the BBNJ Agreement must be observed, including those relating to environmental impact assessments, notification concerning the collection of marine genetic resources, and benefit-sharing.
【Sector-Specific Treaties Relating to the Arctic】
The 1973 Agreement on the Conservation of Polar Bears prohibits, in principle, the taking of polar bears and has since evolved to address environmental changes such as the decline in sea ice. Meetings of the parties have continued online even after Russia’s invasion of Ukraine. However, because it is a closed treaty limited to the A5, Japan cannot become a party. The Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic and the Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic are likewise closed treaties whose parties are limited to the A8; they establish rules for notification, response, and interstate cooperation when accidents occur.
The Agreement on Enhancing International Arctic Scientific Cooperation is designed to facilitate scientific activity in the Arctic by reducing obstacles relating to the entry and exit of researchers, access to research facilities, and the transfer of samples and data. Japan participated in the negotiations and expressed its views, and under certain circumstances researchers from non-Arctic States may also benefit from the Agreement. Although meetings of the parties have not been held since Russia’s invasion of Ukraine, the Agreement remains an important framework for Japan, which places scientific research at the center of its Arctic policy.
The CAOFA establishes precautionary measures before commercial fishing begins, with a mechanism for collecting scientific information and assessing whether sustainable commercial fisheries are possible. In addition to the A5, China, Iceland, Japan, the Republic of Korea, and the European Union participate in the Agreement, making it nearly the only Arctic regional treaty to which Japan is a party. The conference of the parties, scientific research, and the development of rules for exploratory fishing have continued even after Russia’s invasion of Ukraine, and Japan has contributed by, among other things, hosting a meeting of a subsidiary body of the conference.
The Polar Code is a global framework adopted under the International Maritime Organization (IMO). It sets standards for the design and construction of ships, equipment, operations, and crew training for vessels operating in polar waters. Amendments adopted in 2023 extended some of its requirements to categories of vessels that had previously fallen outside its scope, including fishing vessels above a specified size.
【Arctic Cooperation after Russia’s Invasion of Ukraine and Implications for Japan】
In light of developments following Russia’s invasion of Ukraine, the prospects for concluding new regional treaties among the Arctic states is limited. However, global international legal frameworks that also apply to the Arctic Ocean, such as the BBNJ Agreement and the Polar Code, are likely to continue developing.
From Japan’s perspective, given its emphasis on the rule of law and research and development, Japan should continue to contribute to the implementation of Arctic regional treaties in particular the CAOFA through scientific research and the development of international rules etc, while closely following the development of global frameworks such as those under the IMO and the BBNJ Agreement.