Tuesday, September 28, 2010
In 2007, Russia planted its flag on an underwater mountain range arising from the oil-rich Arctic seabed, adding a show of power to its legal claim that the range belonged to it under international law. Not surprisingly, other nations claiming property rights in the Arctic seabed loudly objected, most notably Canada. As the ice shelf in the Arctic disappears, making areas accessible that were inaccessible before, arguments over sovereign property rights are gathering momentum. Russian and Norway recently concluded a 40-year dispute over Arctic territories. And this week scientists and diplomats from a number of nations claiming rights are meeting at a conference in Moscow. For an excellent source of analysis of international relations in the Arctic, see Professor Michael Byers's blog, Who Owns the Arctic?
Beyond the obvious geopolitical and resource-management importance of the dispute, it is fascinating to see the array of tactics contemporary competing claimants to property use to establish their dominion over it, particularly for those of us who teach first-year property students. The parties' use of law, custom, marking & signaling, and raw power to make their claims certainly would not surprise anyone teaching Johnson, Pierson and Ghen.
For example, Russia has gone to great lengths to mark the territory as its own, using a submarine to plant its titanium flag. It has argued that by custom, the Arctic is its own, since more Russians live within the Arctic circle than any other nationality. And Russia and Canada are both submitting claims to the territory to the UN for a ruling under the Convention on the Law of the Sea.
In addition, both Russia and Canada are making a show of expanding their presences in the region. Both countries have found new enthusiasm for sponsoring scientific expeditions to, and building research stations in, the region. The presence of those stations sends an important signal about territorial claims. More ominously, in moves that both display territorial claims and threaten the use of raw power, both countries have increased their military presences there as well. Canada, in fact, held military exercises there and vowed to increase its spending on defense forces for the area.
We teach students that actual, physical presence can be a key to making a successful property rights claim under doctrines such as adverse possession. That same impulse seems to be animating the competing nations, even without the benefit of a doctrine that would reward their efforts. That suggests to me that doctrines such as adverse possession merely ratify a deeply felt normative sense that claims to property rights are strengthened by the fact of physical presence. And this may be our last, best opportunity to see competing claims to "new" earthly territory -- in other words, the doctrine of discovery, and the raw military power that animates it, at work.
Mark A. Edwards
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