LONG-TERM OPTIONS FOR FREEDOM OF NAVIGATION IN THE ARCTIC

BY TIM PERRY

As Arctic ice thaws, it will continue to open opportunities for commerce but will also stir dormant disputes over maritime jurisdiction. The United States has largely agreed to disagree with its Arctic neighbors over these unresolved tensions, but the time for equilibrium will eventually draw short. To preserve freedom of navigation in the Arctic, the United States must think creatively and long-term.

Contested Spaces

In matters of Arctic jurisdiction, Russia holds a distinct advantage. Its 15,000-mile northern coast stretches nearly 180 degrees around the globe, projecting a 1.7 million square-mile exclusive economic zone, within which it has sole right to resource extraction. While this much is largely uncontested, Russia also claims an additional 1.2 million square miles extending all the way to the North Pole based on its own expansive measurement of its continental shelf.

Closer to shore, Russia deems parts of the Northern Sea Route—the shortest water path between East Asia and Europe—as “internal waters.” That designation is significant. While international law principles strongly suggest the Northern Sea Route is an international strait free for all nations to use, Russia treats it more like sovereign space, reserving regulatory authorities that can be used to bar foreign vessels from transit.

Yet Russia is not the only nation that makes contested claims to Arctic maritime space. Mirroring Russia’s claim to the Northern Sea Route, Canada deems the Northwest Passage to be part of its internal waters, subject to essentially unlimited national jurisdiction. To be sure, Ottawa is unlikely to deny its allies, including the U.S., legitimate access through the strait when necessary, but its sovereign claim is unequivocal.

Like most maritime disputes, Russia’s and Canada’s claims are about more than just real estate. Russia uses its expansive claims as a de facto buffer for military installations in a region that it deems vital to its economic future. Ottawa’s assertions of Canadian sovereignty implicitly raise questions about which nations have a legitimate role to play in Arctic matters. Further, while these dynamics are to a large extent regional, they reflect global patterns. In recent years, coastal states have increasingly asserted wider and more robust maritime jurisdiction over their adjacent seas than what international law allows. The most famous of these claims—those advanced by Beijing in the South China Sea—show just how intractable such maritime disputes can be.

New Approaches to Arctic Space

To better defend freedom of navigation against such excessive claims, the U.S. should consider, among other things, these three long-term options.

First, the United States should reframe the Arctic as a global, rather than regional, challenge. A warming Arctic affects all nations, causing sea levels to rise across the globe. As ice melts and technology improves, more non-Arctic nations are able carve out a footprint through investments in resource extraction, and more countries’ merchant fleets can ply Arctic waters on more days each year. A nuclear or other environmental disaster in the Arctic would have cascading effects far afield, well beyond Arctic waters.

To address these global stakes, the United States should work to introduce more countries to the Arctic Council dialogue, currently limited to the eight Arctic nations and several observers. As a priority, these new participants should include island nations threatened by rising seas, as well as the flag of convenience states that regulate more than half the world’s merchant vessel fleet.

Expanding the Arctic Council will give voice to these important stakeholders but will also play to U.S. interests. Russia’s and Canada’s claims are parochial, benefiting Moscow and Ottawa alone. By contrast, most other nations see a greater interest in freedom of navigation and protecting this delicate global commons. Incorporating more of these voices in the Arctic dialogue will discourage Russia and Canada from deepening or extending their excessive claims—and potentially, over time, could prompt them to accede to widely accepted interpretations of international law. 

Second, the U.S. should do more to leverage its partners and allies in defending free Arctic navigation. European members of NATO can supply naval vessels, and supplement the United States’ small icebreaker fleet, for freedom of navigation operations not through the Northern Sea Route, but in areas peripheral to it. To better enable these efforts in a forbidding environment where the “tyranny of distance” reigns, the United States should also make greater long-term investments in undersea and autonomous vessels, as well as other innovations that make operations more nimble.

The United States should also consider talks with Canada over the Northwest Passage. While Ottawa has historically maintained a hardened view of the matter, this maximalist position complicates the West’s objections to Russia’s and China’s excessive claims elsewhere in the world. To be sure, the close U.S.-Canada relationship means there is little tactical urgency, but this is exactly why a dialogue should begin now—before unforeseen circumstances paint either side into a corner.

The United States should not wait another hundred years to invest in long-term strategies for protecting freedom of navigation in the Arctic.

Third, the United States should supplement freedom of navigation operations with Coast Guard law enforcement detachments to police environmental and safety violations north of the Arctic circle. The United States should do this not just in its own waters around Alaska, but in other Arctic nations’ exclusive economic zones. To make its enforcement authority explicit, the United States should negotiate limited bilateral ship-boarding agreements with flag of convenience states, just as it has done in service of counterproliferation efforts.

This, too, implies long-term investments in a better Arctic capability. Why invest in such an assertive approach? For one, stepped-up enforcement will make Arctic waters safer. But as I have argued elsewhere, this would also harness trends in the law of the sea that play to U.S. strengths. Russia and Canada value their excessive claims because those claims (purport to) represent exclusive sovereign control over physical area and everything within it. Indeed, in a world of finite space and resources, this kind of sovereign control is certainly valuable.

Nevertheless, the United States can reduce the relative geostrategic significance of such claims by increasing the relative significance of an alternative form of jurisdiction—specifically, enforcement jurisdiction over half the world’s merchant fleet. In essence, this is an offset strategy: it allows the United States to enhance its overall advantage without immediately confronting its Arctic neighbors over their claims to fixed maritime space.

There are other benefits to this approach. Historically, direct challenges to Ottawa’s claim over the Northwest Passage has inflamed Canadian public opinion. A direct challenge to Russian in the Northern Sea Route risks a military confrontation. An offset strategy minimizes both of these risks. In addition, this approach is consistent with a more agile, less predictable military. And it can be scaled to address excessive maritime claims in other regions too, such as the Indo-Pacific.

Time Is Short for Long-Term Strategy

Some argue that the discourse on Arctic competition is too often alarmist; the Arctic is more geopolitically stable than other contested spaces, and a viable program of Arctic shipping likely remains decades away. While all this may be so, it does not counsel inaction. An oft-repeated anecdote provides some perspective: When U.S. Navy Commander Robert Peary first reached what he believed to be the North Pole in 1909, he telegrammed President Taft to place the territory “at your disposal.” Taft cabled back: “Thanks for your interesting and generous offer. I do not know exactly what I could do with it.”

More than a century later, Arctic jurisdiction has become somewhat more complex than in Peary’s day, while America has struggled to show more Arctic vision than its 27th president. The United States should not wait another hundred years to invest in long-term strategies for protecting freedom of navigation in the Arctic.

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Tim Perry is a Pacific Council member, an attorney, and a former federal prosecutor who recently served as California Governor Gavin Newsom’s appointed Chief of Staff at the Governor’s Office of Emergency Services.

The views and opinions expressed here are those of the author and do not necessarily reflect the official policy or position of the Pacific Council.