Author: Donald R Rothwell, ANU
Is China a polar nation? Despite making no Antarctic territorial claims, China became a party to the Antarctic Treaty in 1983 and has four scientific research bases on the continent. China likewise makes no Arctic territorial claims, and yet as the region has gradually become more accessible due to climate change, Beijing has begun to express a greater interest in it. This includes gaining access to navigation routes and high sea fisheries.
China’s Arctic objectives and goals are now clearly articulated with the release of China’s Arctic Policy on 26 January 2018. The Policy recognises the territorial sovereignty and jurisdiction of the eight Arctic States (Canada, Denmark, Finland, Iceland, Norway, Russia, Sweden and the United States), and also acknowledges the rights of Arctic indigenous peoples. The Policy also claims that China is a ‘near-Arctic state’ and an ‘important stakeholder in Arctic affairs’.
China backs up these claims by referencing its role since 1925 in the Svalbard Treaty (formerly known as the Spitsbergen Treaty), its Arctic scientific research program and its status since 2013 as an accredited observer to the Arctic Council.
Unlike Antarctica, which is regulated by the Antarctic Treaty System, the Arctic has no overarching legal framework. Instead, it has the Arctic Council, which has a core membership of the eight Arctic States, six permanent participants representing indigenous peoples and 13 non-Arctic state observers. The Council has developed into an important forum for the discussion of common Arctic issues. Within that framework three Arctic treaties have been adopted: namely on search and rescue, marine pollution and scientific cooperation.
China’s Arctic Policy asserts that the international legal framework of the UN Charter and the 1982 UN Convention on the Law of the Sea (UNCLOS) combined with treaties on climate change, the environment and marine affairs all create mechanisms for ‘building and maintaining a just, reasonable and well-organized Arctic governance system’. China sees itself as having a major ongoing role in this system.
China’s policy goals include understanding, protecting and developing the Arctic, as well as participating in the governance thereof. These policy goals are to be implemented while following the principles of ‘respect, cooperation, win-win result and sustainability’. China asserts that ‘respect should be reciprocal’, meaning that parties obey international treaties such as UNCLOS and respect the sovereignty, sovereign rights and jurisdiction of the Arctic states. China believes this should also extend to respecting the ‘rights and freedoms of non-Arctic states to carry out activities in this region in accordance with the law’.
These aspects of China’s Arctic Policy pave the way for a bold new initiative: building Arctic shipping routes with other parties to create a ‘Polar Silk Road’. This proposal dovetails with China’s Belt and Road Initiative and would reduce shipping costs and the time involved in transporting Chinese goods to European markets. Unlike for the Belt and Road Initiative, China has not yet named its partners for the Polar Silk Road.
The development of commercial shipping routes through the Arctic has until recently been impossible because of the solid ice that covers much of the Arctic Ocean. Russia has long promoted the Northeast Passage along the Siberian coast as a potential major shipping route, but the route has historically been unreliable because of ice and the need for icebreaker escorts. Canada’s Northwest Passage has been even more problematic due to a navigation dispute with the United States and strict environmental controls limiting commercial shipping.
This state of affairs is now in transition, as climate change has radically altered the Arctic Ocean and its surrounding seas. The Northeast Passage has become increasingly more accessible and ships could soon pass through high sea routes in the central Arctic Ocean during the summer season. A new ‘Polar Code’ for Arctic shipping was recently adopted by the International Maritime Organization in anticipation of these developments in order to ensure both ship safety and the maintenance of minimum environmental standards.
A Polar Silk Road rests upon respect for UNCLOS, which China’s Arctic Policy acknowledges by observing that ‘the freedom of navigation enjoyed by all countries in accordance with the law and their rights to use the Arctic shipping routes should be ensured’. While freedom of navigation is the cornerstone of the Polar Silk Road, China’s interpretation of this international law right is contested. China regularly challenges US warships that assert freedom of navigation in the South China Sea, which Beijing insists give prior notification and seek its permission before they pass through the area.
While both China and the United States have a vested interest in ensuring freedom of navigation for merchant vessels, China’s Arctic pivot relies upon the US respecting freedom of navigation in the Bering Strait (which is between Alaska and Russia and is the Pacific entry point to the Arctic). While the United States accepts that all ships enjoy the right of transit passage in the Bering Strait, new environmental measures are also under consideration due to concerns over increased shipping. China’s Arctic Policy may have just shifted the freedom of navigation debate into a new domain.
Donald R Rothwell is Professor of International Law at the College of Law, the Australian National University.