Written by Shamshir Malik
Co-Founder and Editor-in-Chief, Law & Order
Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.
“The High Seas, the Atmosphere, the Antarctica and the Outer Space”
International law identifies the four major components of “the High Seas, the Atmosphere, the Antarctica and the Outer Space” as the “global commons”  — areas of the world that lie beyond the sovereignty of any particular state (United Nations, 2013). The global commons are governed by Grotius’s principle of mare liberum  – a principle that preserves the freedom of access for the benefit of all (Schrijver, 2015). At first glance, mare liberum may strike as laissez-faire approach towards the usage of natural resources in the global commons. Since the concept denotes a free-for-all, “open for business” approach towards the global commons, it is by no means an equitable distribution between all nations. Contrary to popular belief, the global commons are not the “equal responsibility” of each nation (Chappelow, 2020), rather, they are up for grabs by whoever wants to claim them first. This makes the invaluable resources of the global commons available free-for-all and on a first-come-first-serve basis to countries of the world.
Due to this first-come-first-serve principle, “The High Seas” or oceanic resources that lie beyond the 200 nautical miles international law-sanctioned sovereign territory  of a nation-state are already under heated contention, with current events such as China’s expansionist advances in the South-China Sea  (South China Morning Post, 2019). Natural barriers of intangibility in “the Atmosphere” and “the Outer Space,” as well as the uninhabitability and inaccessibility of the Arctic regions have curbed competition for influence in these areas throughout history. However, due to increasing temperatures and the rise of climate change, the Arctic region is slowly becoming accessible to mankind through a rise in transversable sea routes (National Geographic, 2018).
In general discourse, global warming is generally focused on its negative impact on humanity. Objectively, however, the warming of the Arctic would lead to the generation of massive quantities of water, mineral, oil, commercial fishing, energy, and land resources (Luhn, 2020).
In a strategic perspective, the rise in global warming is directly proportional to the Arctic’s strategic importance in terms of economic gains, especially for nations in close proximity to the Arctic, namely the United States, Canada, Russia, Iceland, Denmark, Finland, Norway and Sweden (Luhn, 2020).
The possibility of economic exploitation has opened new doors to military competition and geopolitical tensions in the Arctic region, while significantly threatening the indigenous populations and natural resources of the area. This article will discuss a general overview of the role of multilateralism in curbing tensions in the Arctic. Further, it will expand upon the actions and advances of individual States in the absence of concrete governance and their trade-offs with environmental sustainability and the rule-based international order.
Multilateralism in the Arctic Region
According to the Ecologic Institute, 30% of undiscovered gas and oil is located in the arctic region. Following the “tragedy of the commons”  concept, the biggest established threats to sustainability in the Arctic are climate change and long-range transboundary pollution (Riedel, 2013). Expansionist and commercial aspirations of industrialized Arctic nations in terms of fishing, mining, and shipping expeditions exacerbate these threats. Negative effects on regional wildlife and indigenous communities are a major off-shoot of commercialization in the Arctic (Riedel, 2013).
As one of the main tenets of the rules-based world order , disputes, and contentious issues are often solved through multilateral dialogue in international forums. The Arctic Council is an eight-member intergovernmental panel designated to facilitate dialogue between nations that possess sovereign land in the Arctic Circle (Arctic Council, n.d.). Following a prior agreement between member states, 13 observer states  including China, India, Germany, Poland, Japan and others are present at the Arctic Council meetings (Arctic Council, n.d.).
For an institution that is merely two decades old , the Arctic Council has made significant progress by bringing nations, indigenous peoples and non-state actors with diverse and often clashing interests on the same table, coordinating and strengthening research and policy efforts and setting the course for sustainable action in the Arctic region (High North News, 2019). A great example is the establishment of the “Arctic Offshore Oil and Gas Guidelines” in 2009 as an effort to apply international standards to curb global pollution (Escudé, 2016).
On the other hand, the body has faced criticism for its lack of concrete outcomes in terms of moderating political and security conflicts in the region with certainty and authority (High North News, 2019).
Like most multilateral institutions, the Arctic Council exercises immense normative influence, but lacks legal personality, or hard power to enforce laws over states (Escudé, 2016).
Hard law regimes that do affect the regulation of Arctic resources in an enforceable manner include the 1959 Antarctic Treaty, and the 1982 UN Convention on the Law of the Sea (UNCLOS) (Escudé, 2016). As mandated by the UNCLOS, countries may submit their applications to make territorial claims in the Arctic Region to the United Nations, if backed by scientific evidence of a “continental shelf” (United Nations, 1982).
Non-cooperative institutional mechanisms, diplomatic failures, and a high-bar of qualifying requirements have prompted many Arctic nations to conduct legal, yet destabilizing actions in the Arctic that pose an extreme danger to the already fragile rules-based, trust-based multilateral world order and sustainability efforts in the Arctic.
Projecting Power: Destabilizing State Action in the Arctic
After the Cold War, the thawing of East-West nations resulted in the creation of the rules-based international order we know today. However, the actions of state actors in the Arctic could very well trigger the age-old divide and weaken the present system. Decisive and bold state action in the arctic has been motivated by a few key factors, namely i) economic exploitation of hidden Arctic resources ii) increasing security risk due to warming temperatures and iii) the tipping and unstable balance of power between the strongest powers of the world stationed in the Arctic region.
The first blow to this established order was landed in 2007, when a submersible planted a titanium Russian flag at the north pole to highlight Moscow’s claim to economic rights over a wide swath of the seafloor in the Arctic region, inviting widespread concern from other Arctic nations, most notably Denmark, Canada and the US (Luhn, 2020). Since then, Canada and Denmark have made overlapping claims on the Arctic seafloor or “continental shelf” (National Geographic, 2019).
In 2006, Prime Minister Harper made it one of his campaign promises to establish and strengthen Canada’s Arctic sovereignty by the installation of around eight Arctic offshore patrol vessels, the establishment of a northern military training base in Resolute Bay, and the utilization of an inactive mining site into a ship refueling base in Nanisivikand (Huebert, n.d.).
According to National Geographic, Russia and Norway have been the most proactive Arctic nations, spending heavily on LNG and oil infrastructure. Russia’s military fleet stationed in the Arctic is the largest in the world, with 61 icebreakers and ice-hardened ships and 10 others under construction (National Geographic, 2018). It is safe to add the rise of economic competition in the area has been supplemented by an active effort to fortify and militarize the Great Powers of the Arctic region due to rising insecurity.
The US and Russia’s hot-and-cold relationship of conflict and cooperation is clearly reaching a boiling point in the Arctic. In February 2020, the Russian government pushed through new law allocating $300 billion in incentives for new ports, factories, and oil and gas developments on the shores and waters of the Arctic Ocean (Luhn, 2020). Subsequently, the Trump administration of the US has announced widespread drilling lease sales in the national wildlife reserve of the Arctic by the end of 2020 (CBC News, 2020).
With an administration that is largely apathetic towards climate change, a complete disregard for environmental sustainability coupled with anxieties surrounding the actions of other states in the region, the prospects of a constructive and sustainable strategy from the United States in the Arctic remain grim at best.
Mike Pompeo, US Secretary of State, announced in 2019 that “America’s moment to stand up as an Arctic nation” following which the US deployed forces for the first time since 1980 into Russian territory. Further plans to ramp up airforce engagement through the deployment of 100 F-22 and F-35 fifth-generation fighter jets to Alaska have been announced for the year to come (Luhn, 2020).
Interestingly, China — a Great Power much further down South — harbors major vested interests in Arctic geopolitics; a sentiment projected through its “Ice Silk Road” Initiative in collaboration with Russia. As such, Russia and China have collaborated extensively in terms of scientific research and development, as well as infrastructure projects in the Arctic region. Notably, both countries have made significant strides in the pursuit of liquified natural gas (LNG) reserves in the Arctic through the world’s largest LNG project, China–Russia Yamal LNG Project (Descamps, 2019).
China’s efforts to strategically expand its Belt and Road Initiative to project power as a “near-Arctic” state also intersects with the European Union’s interests, especially three EU member states: Finland, Sweden, and Denmark that also happen to be Arctic states. China and Finland, as well as China and Iceland, have collaborated on major research initiatives in the Arctic (Chun, 2020).
With the US, Canada, Russia, China, and European nations actively projecting power in the region, the reality of the situation is incompatible with the rules-based, cooperative vision of the Arctic Council. Ultimately, international law and multilateralism have failed to effectively curb rapid expansionism in the global commons.
Therefore, multilateral aspirations for sustainable development are in complete contrast to the reality of state action in the Arctic.
Sri Lankan Judge and Vice President of the International Court of Justice (ICJ), Christopher Weeramantry once said, “We have entered an era of international law in which international law subserves not only the interests of individual States but looks beyond them and their parochial concerns to the greater interest of humanity and planetary welfare.” (Schrijver, 2015).
In a system where state interests are valued over the collective interests of the planet, the dream of optimal governance in the global commons may remain unrealized for the foreseeable future. Recent studies show that a few degrees of warming might trigger “sudden thaws of vast frozen lands, releasing huge stores of greenhouse gases and collapsing landscapes” (NASA, 2020). This is just one of the signs of how drastically the Arctic is changing. Rising and largely unchecked state action is destabilizing the balance of power in the Arctic Region.
Due to the combination of rapid environmental changes and rising temperatures in the Arctic, and the dynamic and ever-changing state of geopolitics, anxieties about managing governance challenges in the Arctic have increased sharply. However, the global commons, especially the Arctic region can act as a ground to innovate and test the limits of the concept of global governance at large.
How can state self-interest be balanced with the dire need to regulate the global commons for optimal mutual gains?
Future developments in Arctic governance may help to solve this conundrum and keep the rules-based order alive in the global commons.
 Global commons are natural assets outside national jurisdiction such as the oceans, outer space and the Antarctic (OECD, 2001).
 Hugo Grotius was a Dutch humanist, diplomat, lawyer, theologian, jurist. Grotius’s primary contribution to international law is his suggestion that “a rational system governs international relations” (Online Library of Liberty, 2016).
 As per the 1982 United Nations Convention on the Law of the Sea, a sovereign state has special rights regarding the exploration and use of marine resources, including energy production from water and wind resources spanning 200 nautical miles from the coast of the state in question. This is called an exclusive economic zone (EEZ). (UNCLOS, 1982)
 The South China Sea is one of the world’s busiest waterways and the site of heated territorial disputes and military drills by American and Chinese forces. China has ramped up expansion efforts in the South China Sea off late, causing major commotion in the geopolitical balance of the region (South China Morning Post, 2019)
 "The tragedy of the commons is an economics problem in which every individual has an incentive to consume a resource, but at the expense of every other individual -- with no way to exclude anyone from consuming” (Investopedia, 2020).
 The “rules-based world order” means “a shared commitment by all countries to conduct their activities in accordance with agreed rules that evolve over time, such as international law, regional security arrangements, trade agreements, immigration protocols, and cultural arrangements” (United Nations Association of Australia, 2016).
 All observer, non-arctic states: India, China, Japan, Germany, Japan, Poland, Switzerland, Netherlands, South Korea, Singapore, Spain, UK (Arctic Council, n.d.).
 The Arctic Council was formally established in 1996 (Arctic Council, n.d.).
 According to UNCLOS, “the continental shelf of a coastal State comprises the submerged prolongation of the land territory of the coastal State - the seabed and subsoil of the submarine areas that extend beyond its territorial sea to the outer edge of the continental margin, or to a distance of 200 nautical miles where the outer edge of the continental margin does not extend up to that distance” (United Nations, n.d.)
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