The Place of Joint Development in the Sustainable Governance of the Arctic

Abstract

As the ice continues to melt away unabated, access to the areas of the Arctic, hitherto inaccessible, becomes real. The coastal States bordering the Sea have since laid claims to the continental shelf of what they believe is their legal entitlement, in order to exploit the resources of the seabed particularly oil and gas. Those who claim under the 1982 United Nations Convention on the Law of the Sea (UNCLOS), the relevant provisions thereof will be triggered, and for those outside UNCLOS, the Geneva Convention on the Continental Shelf and the rules of Customary International Law. Overlapping claim areas and the presence of oil and gas resources that transcends international boundaries are highly possible. For these reasons, the Arctic is referred to as another untamed place of the world, where the competition for resources in disputed areas or of a transboundary nature, without an established legal framework, could mar the geopolitical landscape and ultimately leading to confrontation. This may prove detrimental to the marine environment, shipping, and other peaceful uses of the sea.

The existing international legal regimes that regulate the activities in the Arctic, include, the Geneva Conventions of 1958; United Nations Convention on the Law of the Sea of 1982, and the Polar Code, among others. However, none of these regimes is explicit on the rules for the exploitation of transboundary oil and gas resources or those found in overlapping claim areas/disputed areas. The delimitation of maritime boundary may not be effective, where states based their respective claims on different rules, or where oil and gas resources transcend international boundary or boundaries to an extend that same resources forms part of a single geologic unit and is exploitable from either side of the divide. The economic imperative that motivates states to venture into offshore oil and gas development hold same for the Arctic states too, especially with the findings of the US Geological Survey on the hydrocarbon potentials of the Arctic (USGS). This must be balanced with the social imperative of management.

Joint Development appears to be the alternative option for the Arctic States. Its role has expanded from the traditional development and apportionment of shared oil and gas resources to other aspects of ocean governance, including but not limited to the protection and preservation of the marine environment and the conservation of the living resources. However, its status (whether a provisional arrangement pending maritime boundary delimitation, or an alternative thereto) and the legal basis for states venturing into it, remains a discourse and sometimes elusive as an international rule of law.

The contribution of this chapter to the above-mentioned discourse is to examine whether joint development is in fact the best option for a truly Arctic governance and will seek to determine the legal basis for the Arctic states to enter into such an arrangement. It will also look at whether the Arctic Council could play a leading role in instituting joint development in the Arctic, through a multilateral treaty regime, rather than leaving it to the bilateral will of the states. Further, the chapter will critically analyse the Polar Code to determine whether it could secure a successful Arctic governance on its own. The chapter will then recommend, in addition to Joint Development, the development and adoption of ‘the Arctic Natural Resources Development Code. The interaction of these arrangements will not fail to achieve the aspirations of the Arctic stakeholders. This chapter will conclude that a holistic ocean management, through joint development and the adoption of a natural resources development code will not fail to achieve a sustainable Arctic governance, including the protection and preservation of the marine environment. This will also institute a mechanism for the service of collective interest in the Arctic, through cooperation, rather than rivalry and confrontation.

Thus, a brief recount of the Arctic region and its special treatment under UNCLOS will be given. This will be followed by the analysis of the legal regimes governing the conduct of the coastal States in the Arctic and the limitation if any of such regimes. Identification will be made of the need for the development of appropriate mechanisms to fill in the gap.