China’s White Paper on the Arctic: Legal Status Under International law

Introduction

China's increasing interest in the Arctic raises concerns among regional actors, and its continuous engagement in the region is often viewed with skepticism. On January 26, 2018, the country officially released a White Paper (WP) delineating its Arctic Policy. The document articulates China's official position towards the Arctic, recognizing the sovereignty of the Arctic coastal states, while emphasizing its legitimate rights in the region under international law, such as the freedom of navigation through the Arctic marine areas. It is within this context that this Insightexamines the WP from the viewpoint of international law: What are the international legal consequences of this document? 

International Legal Issues in the Arctic

The Arctic region is a geographical area comprised of eight countries including five coastal states with jurisdiction over parts of the Arctic Ocean. Spanning a total of approximately fourteen million square kilometers (about 5.4 million square miles),[1] the Arctic Ocean consists of around 2.8 million square kilometers (1.1 million square miles) of  high seas[2] with the remainder of the waters classified as the territorial seas and exclusive economic zones (EEZs) of the respective Arctic coastal states. The Arctic is a unique point of interactions—nationally, regionally, and globally. 

Major concerns in the Arctic include climate change, thinning ice sheets and glaciers, increased human activity in ever more accessible marine areas, and the implications of such changes on eco-system services. Hence, the United Nations Framework Convention on Climate Change (UNFCCC), and subsequent related regulations, such as the Kyoto Protocol and Paris Agreement, are often referred to in discussions on changes in the Arctic. The impact of changes in the Arctic are widespread and have global implications, or, as is colloquially said, "what happens in the Arctic doesn't stay in the Arctic"[3] —the example being the cold air spilling out of the Arctic into more southern latitudes causing severe winter storms.[4]

The United Nations Convention on the Law of the Sea (UNCLOS) offers general norms that govern the Arctic region including the rights and responsibilities of both coastal and non-coastal states in areas, within and beyond, national jurisdictions. By virtue of the law of the sea, the coastal states have sovereignty over their territorial seas (12 nautical miles) and certain exclusive jurisdictional rights within 200 nautical miles of the coastline. Under UNCLOS, all states have rights to the freedom of navigation through the EEZ with due regard to coastal states' rights, and to lawful utilization of the marine area in relation to operation of ships, aircraft and submarine cables and pipelines. However, the Arctic coastal states, by virtue of Article 234 of the UNCLOS are allowed to adopt stricter (non-discriminatory) measures because of presence of ice and special climatic condition prevailing in its marine areas.

The law of the sea is presented by the Arctic coastal states as the primary legal framework in relation to Arctic governance.[5] However, other international regulations also exist to cover both universal and region-specific regulations related to, for example, shipping, resources management, and protection of marine environment. The Polar Code, which entered into force in January 2017, regulates the safety and security of vessel operation, while simultaneously protecting marine environments in the Arctic.[6] In November 2017, nine nations including all five Arctic coastal states, along with four non-Arctic states (China, Japan, Singapore and South Korea) and the European Union (EU), concluded an agreement to ban unregulated fishing in the Central Arctic Ocean (CAO) for at least the next sixteen years pending the availability of more concrete knowledge on the marine ecology of the Arctic high seas.[7] Alongside international regulations, other Arctic specific regulations address cooperation on scientific research, oil pollution preparedness and response, and search and rescue operations.[8] These are further supplemented by international human rights documents on the protection and promotion of the rights of over forty distinct groups of indigenous peoples in the Arctic, whose lives and livelihoods are closely linked to Arctic's natural environment.[9]

China's Arctic Policy & International Legal Commitment

In its WP, China claims it is a "near Arctic state." The meaning of this claim is ambiguous, given that it does not have any legal consequence under international law. Perhaps China's claim is an attempt to increase the legitimacy of its Arctic engagement as human activities throughout the Arctic region increase. The WP clearly articulates ambitions for a "Polar Silk Road" to connect China's massive business and investment projects in Asia and Europe through the expansion of its Belt and Road Initiative (BRI).[10] The WP suggest as follows: 

[S]tates . . . should respect the sovereignty, sovereign rights, and jurisdiction enjoyed by the Arctic States in this region, respect the tradition and culture of the indigenous peoples, as well as respect the rights and freedom of non-Arctic States to carry out activities in this region in accordance with the law, and respect the overall interests of the international community in the Arctic.[11]

Hence, the WP highlights "reciprocal" respect both on part of China clearly recognizing "the sovereignty, sovereign rights, and jurisdiction enjoyed by the Arctic States in this region," and on the part of the Arctic states to guarantee non-Arctic states' legitimate rights and interests in accordance with law. The WP explicitly states China's commitments to uphold its international legal obligation as embodied in the UNCLOS, the Paris Agreement and other multilateral environmental treaties applicable to the Arctic. At the same time, the WP firmly commits to respect the "diverse social culture and the historical traditions of the indigenous peoples."[12] In other words, China upholds the international legal framework, as it applies to the Arctic, and at the same time seeks to assert its legitimate rights and interests within the framework of law. Such interests generally include the freedom of navigation via the EEZ, related maritime activities, such as laying of cables and pipelines, and resource extraction in the areas beyond national jurisdiction as embodied in the law of the sea. China nevertheless commits to pay due regard to fragile Arctic environmental conditions. 

In this regard, the WP highlights China's determination to better understand the region, as it seeks to utilize the opportunities arising from Arctic change, but also to protect the region from imminent threats, such as climate change. It is within this context that the WP presents China's determination to participate in the governance of the Arctic. China, as demonstrated in its WP, clearly prioritizes a multi-level governance approach at global, regional, and bi-lateral levels.[13] China also intends to explore avenues to participate in Arctic governance from the United Nations level. Its role on the Security Council (SC) provides China with the prerogative, along with other permanent members of the SC, to link the maintenance of "peace and security" to Arctic governance.[14]

Overall, however, the WP clarifies China's position in the Arctic: to deepen its knowledge in the region in order to respond to prevailing and future challenges and to cooperate with the Arctic and other states at various levels; to sustainably utilize Arctic natural resources while respecting sovereignty and sovereign rights of the Arctic states; and to promote peace, stability, and development in the region, or, as the WP states, a "win-win" situation for all.[15]

The WP reminds that as an emerging global power, China arguably assumes its responsibility to contribute to the governance of the Arctic.[16] In this context it should be noted that China actively participated in recent legal developments applicable to the Arctic, such as the adoption of the Polar Code. China recognizes the extensive role of the International Maritime Organization (IMO) in shipping related issues. China is also a signatory to the recently concluded CAO Fisheries Agreement. Given its complex legal and political structure,[17] the framework of Arctic governance, according to China, should be approached as a multi-level structure, with national to trans-national, and regional to international, interactions. Even though the WP explicitly confirms China's international legal commitments, the text of the WP raises concerns regarding China's adherence to legal commitments for the protection and promotion of rights of indigenous peoples. While the WP states that China aims to accommodate the interests of Arctic's indigenous peoples as part of its cooperation with the Arctic states, the document does not provide any clear articulation of which international legal frameworks China will observe. Although China has voted in favor of the adoption of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), it failed to ratify a number of human rights treaties, such as the International Covenant on Civil and Political Rights (ICCPR). 

Legal Status of White Paper Under International Law

This section examines questions raised by the WP, such as: What consequences does the WP raise in terms of China's legal obligations towards the Arctic states? Are these different from the obligations of other states engaged in the Arctic? How might Arctic states reflect on China's WP? 

Given that the adoption of the WP is a unilateral action by which China officially presents its Arctic policy, assessing its legal character relies on how international law considers such unilateral action within its ambit. Does this policy document correspond to a "unilateral act" as understood within the framework of international law? While there is no generally accepted definition of "unilateral act" in international law,[18] general references suggest that a "unilateral act" creates rights and obligations as a result of the conduct of one state, and without the involvement of other states. The jurisprudence of international case law also provides numerous examples of the possible legal consequences of unilateral acts. The Nuclear Tests cases of 1974 are frequently referenced, where the International Court of Justice (ICJ) evaluated the binding character of a unilateral declaration. The Court relied on two conditions to evaluate the binding character of such a unilateral act. First, whether the act was public or generally known, and second, whether it provides sufficient evidence of a state's intention to be bound.[19] These conditions are now also codified within the framework of the International Law Commission (ILC)'s "Guiding Principles applicable to Unilateral Declarations of States capable of creating legal obligations."[20]

A unilateral act may create a legal obligation for the state declaring the act. It is nonetheless incapable of changing or terminating established international legal norms, either for itself or in relation to other states, without due legal process prescribed by international law.[21] As a policy document, China's WP may be capable of creating the obligation for itself to not act contrary to the WP. Third states including the Arctic states may be able to reference the WP to evaluate how their internal policies relate to the policies of the Chinese in the Arctic. While it is not clear whether China intended to create for itself a different legal existence, the WP is probably best read as a policy declaration reaffirming China's adherence to pre-existing legal frameworks governing the Arctic region. As a document, the WP continues to affirm China's "win-win" foreign policy goal to gain legitimate influence in the region while avoiding conflict and promoting cooperation.

Conclusion

In conclusion, the WP may not be evidently presented as an autonomous international legal document. However, as a supplementary policy document, the reaffirmation of China's international legal commitment towards the Arctic is politically significant. The WP presents China's official policy position towards the Arctic, and thereby provides the foundation for action or mutual cooperation with China in the Arctic.

About the Author: Kamrul Hossain is a Research Professor, and Director of Northern Institute for Environmental and Minority Law (NIEM) at the Arctic Centre of the University of Lapland. He is also the lead of the Thematic Network on Law of the University of the Arctic.