Strange Things Done in the Midnight Sun

Most systems of property law, like exorcists, attach special importance to possession. Once someone is in possession of a given piece of property, it is usually a demanding process to have them removed by force of law (pro tip: try holy water). The same has historically been true in matters of international territorial sovereignty. More often than not, the country which simply takes possession of territory will win out over others which may have more legitimate claims. Yet how can a state “take possession” of land which is uninhabitable? It doesn’t take a Neil Armstrong to tell you that the answer is by planting flags.

For some reason Canada seems unwilling to practise flag-planting as much as other countries. Today we have the excuse that most of our flags are hanging over Olympic podiums. But this wasn’t always the case, and our nervousness about throwing flags around is putting our claims of Arctic sovereignty at risk. These claims are important, and could translate into tall cash, since shrinking ice coverage and advancing technology will make it more practical to extract resources such as oil and natural gas from the Arctic seabed in the future.

Don’t let the United Nations Convention on the Law of the Sea (UNCLOS) fool you into thinking that flag-planting isn’t a legal basis for an Arctic claim. According to Part VI of the UNCLOS, states have an exclusive right to extract minerals and other non-organic resources from the seabed of the continental shelf extending from their territory. States are required to make any claims to continental shelves within 10 years of their ratification of the UNCLOS, and claims must be supported with scientific data showing the outer limit of the continental shelf. Because Canada ratified the treaty in 2003, it has until 2013 to submit its claims.

While Canada has been nerdily collecting the required scientific data, other countries have been taking decisive action. In 2007, Russia sent someone 4.3km to the bottom of the ocean under the North Pole to plant a Russian flag. Last fall, Russia also announced plans to drop paratroops on the North Pole this spring (an exercise planned by Artur Chilingarov, the same man behind the undersea flag-planting expedition).

The natural response is that flag-planting and similar gestures are legally insignificant. As then-Minister of Foreign Affairs Peter MacKay put it, “this isn’t the 14^th or 15^th century”. The unimportance of such moves is underscored by the amount of energy all sides put into talking about how unimportant they are. After MacKay’s response to the flag-planting incident, the Russians agreed that it had no legal bearing. MacKay more recently (as Minister of Defence) responded defiantly to the announcement of the paratrooping mission, which the Russians again emphasised had “no legal meaning”. The Danish government also agreed that the undersea Russian flag doesn’t have “any impact on any legal claims”. They should know: Denmark planted flags on the disputed Arctic rock called Hans Island in 1984, 1988, 1995, 2002, and 2003.

Canada put one flag on Hans Island in 2005, Stephen Harper has visited the Arctic four years in a row, and the Canadian Forces have been carrying out Arctic training missions with increasing regularity. But to solidify its Arctic claims, Canada needs more of these unimportant, legally insignificant gestures. Boring old scientific data backing our claims may technically help us in international law, but it won’t do any actual good against the might of undersea foreign flags, since overlapping claims under the UNCLOS will have to be negotiated by the states involved.

In the meantime Canada should be making it rain flags on the Arctic seabed. There is a unique opportunity right now since the world’s flag-planting champions, the Americans, haven’t yet ratified the UNCLOS, and as such haven’t submitted any claims to the continental shelf. If in the meantime Canada acts to create “facts on the ground”, we could gain the same benefits that possessors have in domestic property law. Canada should also be wary of Russian invitations to hold a dialogue on the issue, continuing in April at a meeting of Arctic Council nations in Moscow. According to an article by Canadian time-travellers from the future, Russia will spurn an invitation to become a founding member of the Circumpolar Arctic Treaty Organisation in 2015.

It’s difficult to exorcise someone from property which they possess. Admittedly, the UNCLOS ascribes no importance to moves such as planting flags on the seabed or having politicians visit certain areas. All of the important players in the scramble for the Arctic continental shelf also agree that these actions are legally meaningless. But if you believe that, then I’ve got a patch of Arctic seabed to sell you – dollars or roubles accepted.

IGNORE THEM, UNCLOS