Canada Underestimates Russia’s Arctic Intentions

By Robert Amsterdam | Published: April 9, 2010

cannon040810.jpgThough my home country Canada often has the reputation as the world’s boy scout, seeking the approval of others for its moral conduct, there is also a sense of healthy chauvinism when it comes to defending basic independence, territory, and sovereignty.  However the push to claim an enormous slice of the Arctic by the Russian government over the past number of years has put these two national personalities to the acid test.

It is disheartening to see that the current reaction of Canada to Russia’s string of provocations, from flag planting to dropping paratroopers into the disputed territory, has been reckless nonchalance.  In comments made earlier this week and quoted in the Globe and Mail, the Canadian Minister of Foreign Affairs Lawrence Cannon displayed what is in my opinion a deep misunderstanding of Kremlin motives:  “I don’t take this Russian initiative very seriously,” he said, “it seemed to me that the Russians were just pulling stunts.“
I have for some time urged the Canadian government to thoughtfully study the Russian approach to the Arctic, a policy which under the direction of Igor Sechin and others represents a far greater threat to Canadian interests than Cannon appears to realize.  These gestures are much more meaningful than simple stunts.  This morning I had the opportunity to call a friend and colleague in Moscow, Vladimir Gladyshev, who is an international lawyer and expert on Russia’s approach to territorial issues (as well as  one of the key witnesses in the precedent-setting Yukos Energy Charter Treaty decision).  Gladyshev had the following to say on Cannon’s remarks to the Globe and Mail:

There are two levels to the globe and mail story. One is ostensibly the tug-of-war on the outer limits of the national continental shelves of the Russian Federation and Canada.

However, this is not the whole story. In principle, any temporary physical action either by Russia or Canada are irrelevant for the consideration of the outer limit of the continental shelf by the UN Commission. The latter works on the basis of a complex political-geographical-geological formula of UNCLOS (UN Convention on the Law of the Sea). Stunts like paratroopers and submarine launchers do not affect such deliberations.

However, a deeper and unarticulated agenda is at work. It is a competition of national creeping jurisdictions of Arctic countries among themselves, with Canada and Russia at the front.

An early indication that Arctic countries might be interested, jointly, just in such thing, was the International Agreement on the Conservation of Polar Bears was signed in Oslo, November 15, 1973, backed by the five arctic countries. The preamble recognized special responsibility and special interests of the five countries in the ecology of the Arctic area. Foreign ministries of the five countries quietly regarded it as a first step to converting Arctic into the area that would be shared by them.

UNCLOS, signed in 1982, included so-called Canadian article, inserted at the initiative of the Canadian delegation, that gave Arctic coastal state powers to regulate international shipping in the 200-miles exclusive economic zone (in other ocean areas under 200-miles jurisdictional claims by coastal states convention essentially preserved traditional freedom of high seas shipping).

The Soviet Union, meantime, dissatisfied with what it considered as a too modest reach of their Canadian article, strived to extend, step by step, its full sovereignty over the whole “Soviet Arctic Sector” as described in the Supreme Soviet decree of 1926.

However, the main impediment for extending full sovereignty during the Cold War era was not the complex and clever formulas of UNCLOS (which strived to reconcile various maritime interests through heavy reliance on constructive ambiguity), but the strategic games of the superpowers.

Both the United States and Russia were interested in an unimpeded under ice passage for their nuclear submarines as a important part of strategic nuclear deterrence.

Since this particular interest is now radically diminished or non-existent, it no longer impedes a rapid proliferation of creeping national jurisdiction over Arctic polar regions.

However, Arctic players are left with sundry and often incompatible bits of legal regimes, policy positions and conflicting interests – some left over from the previous decades, some brand new.

In this climate of legal uncertainty, symbolic gestures have more that symbolic value – they may plausibly tip the scales of negotiations over the future of Arctics to one or the other country.

The question – should the foreign ministries of the Arctic countries be left to hammer out a legal regime of Arctics quietly in their studies (while regaling the public with publicity stunts), or the topic is too important to be left without input of the industry and environmental concerns?  

My law firm Amsterdam & Peroff is planning on hosting a panel debate on Canadian and Russian interests in the Arctic later this year, so please do get in contact with us if you have interest in attending.  Vladimir Gladyshev and I will also be speaking at Chatham House (London, UK) on May 13th on the subject of Russian law.

Photo credit:  Canada’s Foreign Minister Lawrence Cannon pauses during a news conference at the Arctic Ocean foreign ministers’ meeting in Chelsea, Quebec March 29, 2010. (REUTERS/Chris Wattie)

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