Legal, political and economic interests of Korea and China in the Arctic analysed and compared
Image I: The Arctic states: the Russian Federation, the United States of Amerika (Alaska), Canada, Denmark (Greenland), Iceland, Norway, Sweden and Finland
Iceland
Norway Greenland
Sweden Finland
Russia Alaska
Canada
Final Version
University of Groningen Master of Arts Thesis – East Asian studies Student: D.J. (Dirk) Krijgsman – S2572575
Abel Tasmanplein 3-A, 9726 EK, Groningen (+31 6 339 887 87) December 2018
Supervisor: prof. dr. mr. T. H. F. (Tjalling) Halbertsma Word count: 23,198
2 Abstract
The Arctic is subject to the consequences of climate change. The sea ice is melting and 90 million barrels of oil, 1.669 trillion cubic feet of natural gas and 44 billion barrels of natural gas liquids are about to be uncovered. This stimulates claims from the Arctic coastal states (US, Canada, Russia and Denmark) over the Arctic Ocean. The United Nations Convention on the Law of the Sea is used to justify these claims. Non-Arctic countries such as Korea and China, also show their interests in the Arctic. The purpose of this master thesis is to analyse how Korea and China pursue their (common or differing) legal, political and economic interests in the Arctic as formulated in their respective white papers.
The research is constructed on a threefold theoretical framework. First, the underlying philosophy of interstate interaction. Second, the legal sources used to justify interstate interaction. Third, the method of interstate interaction. Countries justify their interstate interaction by referring to international legal sources, rooted in underlying domestic interests. Korea and China pursue domestic interests (energy, shipping industry and political ambitions) in the Arctic by appealing on these international legal frameworks. This is called the Grotian tendency.
Korea and China appeal on the United Nations Convention on the Law the Sea in their Arctic interstate interaction.
This convention grants rights over all (Arctic) waters to the Arctic states, but also to Korea and China. Korea obtains for a cooperative interstate interaction method, what can be traced back to their position as middle-sized country. China uses a more coordinative approach (with cooperation elements) with which China wants to show that it has an important position in world politics. The two East Asian countries maintain bilateral ties because they pursue common interests in the Arctic with differing approaches. However, this cooperative attitude exists mainly due to the fact that cooperation is the most beneficial strategy for both to pursue their own domestic interests.
This framework indicates Arctic energy exploitation as essential domestic interest for Korea and China to engage with Arctic affairs. Energy exploitation can shift from Middle East to the Far North in the near future. Despite the current high risks of the Arctic Ocean, Korea and China are also much interested in future Arctic shipping lanes to transfer energy and transport freight to Europe. To pursue these interests, bilateral ties with the Arctic states, especially Russia, are utmost important. Aligning to Russia is a form of dependency and this explains the more cooperative attitude of Korea, as well as China, in their Arctic affairs. The opening Arctic is stimulating a power shift towards the East and is therefore a potential game changer in the international relations realm.
DECLARATION BY THE CANDIDATE
I hereby declare that this thesis, “Korean and Chinese interests in an opening Arctic” is my own work and by my own effort and that it has not been accepted anywhere else for the award of any other degree or diploma. Where sources of information have been used, they have been acknowledged.
Name: D.J. (Dirk) Krijgsman Date: November 30th, 2018 Signature:
3 List of Abbreviations
AMBI Arctic Migratory Bird Initiative
AMAP Arctic Monitoring and Assessment Program
BRI Belt and Road Initiative
CLCS Commission on the Limits of the Continental Shelf
DPRK Democratic People’s Republic of Korea
EEZ Exclusive Economic Zone
FTA Free Trade Agreement
IJC International Court of Justice
IMO International Maritime Organization
IPOP International Polar and Ocean Portal
IR International Relations
NATO North Atlantic Treaty Organization
UN United Nations
UNCLOS United Nations Convention on the Law of the Sea
UNFCCC United Nations Framework Convention on Climate Change
US United States (of America)
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TABLE OF CONTENTS
1. INTRODUCTION ... 5
2. THEORY OF INTERSTATE INTERACTION IN LEGAL DOMAIN ... 9
2.1 MARE LIBERUM ... 11
2.2 UNITED NATIONS CONVENTION ON THE LAW OF THE SEA ... 12
2.3 RHETORIC OF INTERNATIONAL LAW ... 16
3. METHODOLOGY ... 19
4. THE REPUBLIC OF KOREA AND THE ARCTIC ... 21
4.1 KOREA’S REASONS FOR ARCTIC INVOLVEMENT ... 21
4.1.1 KOREA’S POLITICAL CONTEXT ... 21
4.1.2 KOREA’S ECONOMIC CONTEXT ... 22
4.1.3 KOREA’S SOCIAL CONTEXT ... 23
4.2 ANALYSIS OF KOREA’S ARCTIC MASTERPLAN ... 24
4.2.1 STRENGTHENING INTERNATIONAL COOPERATION ... 25
4.2.2 ENCOURAGING SCIENTIFIC AND TECHNOLOGICAL RESEARCH CAPACITY ... 28
4.2.3 PURSUING SUSTAINABLE ARCTIC BUSINESSES ... 32
4.2.4 SECURING INSTITUTIONAL FOUNDATION ... 36
5. THE PEOPLE’S REPUBLIC OF CHINA AND THE ARCTIC ... 39
5.1 CHINA’S REASONS FOR ARCTIC INVOLVEMENT ... 39
5.1.1 CHINA’S POLITICAL CONTEXT ... 39
5.1.2 CHINA’S ECONOMIC CONTEXT ... 43
5.1.3 CHINA’S SOCIAL CONTEXT ... 45
5.2 ANALYSIS OF CHINA’S ARCTIC POLICY ... 46
5.2.1 DEEPENING THE EXPLORATION AND UNDERSTANDING OF THE ARCTIC ... 47
5.2.2 PROTECTING THE ECO-ENVIRONMENT OF THE ARCTIC AND ADDRESSING CLIMATE CHANGE ... 50
5.2.3 UTILIZING ARCTIC RESOURCES IN A LAWFUL AND RATIONAL MANNER ... 52
5.2.4 PARTICIPATING ACTIVELY IN ARCTIC GOVERNANCE AND INTERNATIONAL COOPERATION ... 57
5.2.5 PROMOTING PEACE AND STABILITY IN THE ARCTIC CONCLUSION ... 63
6. COMPARATIVE ANALYSIS OF KOREA AND CHINA ... 65
6.1 COMMON INTERESTS ... 65
6.2 DIFFERING INTERESTS ... 67
7. CONCLUSION ... 69
8. LIST OF SOURCES ... 72
9. APPENDIX ... 76
9.1 KOREA’S ARCTIC MASTERPLAN ... 76
9.2 CHINA’S ARCTIC POLICY ... 82
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1. INTRODUCTION
The Arctic is a Polar region north of the Arctic Circle (66˚ 33’N) and encompasses the Arctic Ocean, bordering seas and parts of the Russian Federation (hereafter Russia), the United States of Amerika (hereafter the US) (Alaska), Denmark (Greenland), Norway, Finland, Iceland, Sweden and Canada. These eight countries are known as Arctic states and are – together with representation groups of the indigenous people – associated in the Arctic Council since 1996.
The Arctic Council is an intergovernmental forum that promotes cooperation, coordination and interaction between the Arctic states. The Arctic Council has six working groups focusing on reducing emissions, monitoring and protecting (marine) environment, conserving Arctic biodiversity and sustainable development.1
The Arctic is subject to major changes because of global warming. The sea ice is melting in the summer and the changing environmental conditions affect the (marine) biodiversity. Because of this melting process, according to the US Geological Survey (2008), approximately 90 billion barrels of oil, 1.669 trillion cubic feet of natural gas and 44 billion barrels of natural gas liquids are about to be uncovered: the largest unexplored prospective area for petroleum remaining on Earth. Around 70 percent of the oil is estimated to occur in Alaska, Northern Canada and West- Greenland, while 70 percent of the gas is located in the Siberian basins and Alaska.2
Image II and III: Undiscovered oil and gas in the Arctic – the darker the colour, the higher the amount3
1 “The Arctic Council background information,” (Tromsø, Norway: The Arctic Council Secretariat, January 3rd, 2018), 1.
2 “Circum-Arctic resource appraisal: estimates of undiscovered oil and gas north of the Arctic Circle,” (San Francisco: United States Geological Survey, 2008), 1 – 4.
3 Ibid, 2 – 3.
Oil Gas
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These numbers demonstrate the huge potential of the Arctic region. In the (near) future, an ice- free Arctic could lead to new and shorter shipping lanes from Asia to Europe for example.
However, current risks with drifting ice, low infrastructure and high costs, do not make it a realistic option yet.4 Nonetheless, the Arctic future is full of opportunities.
The growing interests in these opportunities put pressure on the international relations between the Arctic states. Two Russian submarines planted a Russian flag on the seabed of the central Arctic Ocean in August 2007. It was a demonstration of Russian power, despite Moscow denying this to be a territorial claim. It led to diplomatic agitation between the different Arctic states. A year later, the five Arctic coastal states came together in Greenland and concluded the Ilulissat Declaration (2008). This turned out to be a game changer in Arctic interstate affairs.
The five Arctic coastal states, the US, Russia, Denmark, Canada and Norway declared that more Arctic regional cooperation was needed because of the drastically changing environmental circumstances. They justified this claim based on sovereignty rights over parts of the Arctic Ocean: expressed in the United Nations Convention on the Law of the Sea.5 However, this convention can be interpreted in different ways. The Arctic 5, as they are called, used the convention to grant themselves regional jurisdiction and to exclude other countries. This research explains this as a political statement to the international community that the Arctic 5 does not want global involvement in Arctic affairs.6
The three non-invited countries: Iceland, Finland and Sweden, were not happy with this state of affairs. Countries as the Republic of Korea (hereafter Korea) and the People’s Republic of China (hereafter China) took their chances and intensified bilateral cooperation with the excluded countries. China National Offshore Oil Corporation, for example, announced a deal with Iceland’s Eykon Energy Firm over joint oil exploitation on Icelandic soil.7 Korea and China proceeded their interests in the Arctic region and also made treaties with the other Arctic states. The Ilulissat Declaration was concluded with the intention of keeping Arctic affairs at a regional level, but had the opposite effect. The Arctic 5 also wanted to benefit from bilateral cooperation with non-Arctic states. This paved the road for non-Arctic countries to obtain for
4 Leah Beveridge, Melanie Fournier, Frédéric Laserre, Linyan Huang and Pierre-Louis Têtu, “Interest of Asian shipping companies in navigating the Arctic,” Polar Science 10, (2016), 405, 406 and 408.
5 “Ilulissat Declaration,” (Ilulissat, Greenland: Danish Ministry of Foreign Affairs and representatives of Canada, Norway, Russia and the US), 1.
6 Klaus Dodds, “The Ilusissat Declaration (2008): The Arctic states, ‘Law of the Sea’ and Arctic Ocean,” SAIS review of international affairs 33, no. 2 (2013), 46, 48 and 50 – 51.
7 Stephen Blank and Younkyoo Kim, “The Arctic and new security challenges in Asia,” Pacific Focus 28, no. 3 (December 2013), 328 – 329.
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an observer status of the Arctic Council. Non-Arctic countries can obtain an observer status and support the council with scientific research, information and financial support.8
There are more observing countries and many countries are interested in the developments in the Arctic, but this research focuses on two East Asian observers: Korea and China. This research offers an outside-in perspective on Arctic affairs from an East Asian point of view.
This is a new perspective in IR research. The Korean and Chinese engagement with the Arctic is an ongoing process and is thus very interesting to analyse. The term of Korea’s Arctic policy paper ended in 2017 and there is not much reflected upon the outcomes of the plans yet, while China only published an Arctic policy paper in January 2018.9 Furthermore, the Arctic opportunities are a potential game changer for Korea and China. Arctic oil and gas exploitation will decrease their dependency on petroleum from the Arab peninsula. Intensified cooperation with, and investment in Arctic states, especially Russia, explains long-term Arctic interests of Korea and China.10 This research argues that increased East Asian involvement in Arctic affairs is also a demonstration of a shifting power balance from the West to the East. The situation in the Arctic is an ongoing and contemporary process and, therefore together with the niche in IR research, very relevant to examine.
Korea published its Arctic Masterplan in December 2013, after obtaining the observer status, while China published its Arctic Policy in January 2018. These white papers present Korea’s major strategic goals and key plans and China’s policy goals and policies. Korea’s policy paper expresses to strengthen international cooperation, encourage scientific and technological research, pursue sustainable business and secure institutional foundation.11 China wants to understand the Arctic with scientific research, protect the Arctic in order to solve climate change, participate in the Arctic with more international legal frameworks and develop the Arctic for exploitation of natural resources and shipping lanes.12 The two white papers are the main source of research.
8 “Arctic Council observer’s manual for subsidiary bodies,” (Kiruna, Sweden: Eighth Arctic Council Ministerial Meeting, May 15th, 2013), 7.
9 Viatcheslav Gavrilov and Alexandra Kripakova, “Arctic policy of the North East Asian countries,” Jindal Global Law Review 8, no. 1 (2017), 76.
10 Aki Tonami, Asian foreign policy in a changing Arctic – the diplomacy of economy and science at new frontiers (London: Palgrave Macmillan, 2016), 20 – 24 and 73 – 75.
11 “Arctic policy of the Republic of Korea,” (Seoul: Ministry of Oceans and Fisheries, December 2013), 5 – 6.
12 “China’s Arctic policy,” (Beijing: The State Council Information Office of the People’s Republic of China, January 26, 2018), 4 – 5.
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All Arctic waters and the seabed are subject to the third United Nations Convention on the Law of the Sea (UNCLOS) from 1982. This means in short that countries have rights over their territorial waters with an Exclusive Economic Zone (EEZ) up to 200 nautical miles of their baselines, including rights over the Continental Shelf.13 The waters and seabed beyond national borders are part of the common heritage of mankind and belong to everyone. UNCLOS is meant to cover all national and international waters, why then could there be territorial disputes over the Arctic Ocean?
Territorial disputes in the Arctic exists because of different interpretations of UNCLOS, treaties preceding and conflicting UNCLOS and the maritime delimitation of UNCLOS. The prime example is the claim on the Continental Shelf of the Arctic Ocean, by the Arctic 5, justified with a reference to UNCLOS. The coastal states have sovereign rights on the Arctic seabed up to 200 nautical miles from their baseline, with a maximum extension of 150 nautical miles.14 However, this does not diminish rights of other countries. The Arctic 5 play a political game expressed in a legal framework. Korea and China also look into the possibilities that different interpretations of UNCLOS can offer them to pursue legal, political and economic interests in the Arctic, expressed in their white papers. These East Asian countries have thus entered a game of Arctic interstate interaction in a legal domain. The Arctic states, by referring to UNCLOS, are trying to keep Arctic affairs on regional level, while Korea and China are pushing for a
‘Global Arctic’ to pursue their own interests. The research question therefore is:
“How do Korea and China pursue their (common or differing) legal, political and economic interests in the Arctic, as formulated in their respective white papers?”
Divided into sub questions:
How does Korea pursue its legal, political and economic interests in the Arctic?
How does China pursue its legal, political and economic interests in the Arctic?
How are these two cases comparable or differing?
This research follows the structure of the sub questions with two cases of Korea and China and a comparative analysis part.
13 “United Nations Convention on the Law of the Sea,” (New York: United Nations, 1982), article 2, 3, 56, and 76.
14 Asim Zia, Ilan Kelman and Michael H. Glantz, “Arctic melting tests the United Nations Convention on the Law of the Sea.” In: Diplomacy on ice eds. Rebecca Pincus and Salem H. Ali (Yale: Yale University Press, 2015), 133 – 136.
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2. THEORY OF INTERSTATE INTERACTION IN LEGAL DOMAIN
How to answer this comprehensive research question? This research uses the logical structure of international law theory of Shirley Scott, a professor specialized in politics in international law. This research extends Scott’s framework with theories of several international law and international relations (IR) scholars such as Oxman, Rossi, Shackelford and Goldsmith &
Posner into a new theoretical framework called: theory of interstate interaction in legal domain.
This extended framework is necessary to understand how Korea and China have interstate interactions in a legal domain with the Arctic states, each other and the international community, to pursue legal, political and economic interests in the Arctic.
International law is defined as:
“The general and consistent practices of states from a sense of legal obligation. This is based on two ideas: there must be a widespread and uniform practice of states and states must engage in the practice out of a sense of legal obligation. The second requirement is often referred to as opinio juris: the reason why states act according to a behavioural regularity. Opinio juris is what distinguishes a state act done out of interest or comity form one that a state performs because it is required to do so by law. The longstanding practices among states ripens or hardens the process of international law when it becomes accepted by states as legally binding.”15
International law is thus a body of rules established by custom or treaty recognized by states as binding in their relations with one another. Goldsmith & Posner focus on why states act according to international law. The body of rules therefore is intertwined with state behaviour, or the political context in which it operates. There is a certain autonomy of international law with a system of interrelated rules, principles and concepts, despite this (just mentioned) relation between the body of rules and its political context.16
Scott designed a framework with rules, principles and concepts of international law divided into three groups. This research follows the framework of Scott, but as mentioned before, extends on it to create a version more applicable to the Arctic situation. Scott’s original pyramid framework is put upside-down, because the three different levels of interstate interaction in legal domain are intertwined, but the upper two parts form the essence of the model.
15 Jack L. Goldsmith and Eric A. Posner, The limits of international law (Oxford: Oxford University Press, 2005), 23.
16 Shirley V. Scott, International law in world politics – an introduction (Boulder: Lynne Rienner Publishers, 2004), 87.
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Figure I: Scott’s logical structure of international law, adapted into an up-side down pyramid17
The first level of Scott’s pyramid model is the underlying philosophy or theory forming the fundaments of international law. Scott makes a distinction between natural law and positivist human-shaped law as starting point of the legal system. Natural law is the body of unchanging moral principles regarded as basis for all human conduct, while human-shaped law is constructed by humans. The second level represents the sources of international law, or the system of international law. This means in essence: the International Court of Justice (IJC) and all its treaties or conventions. All members of the United Nations (UN) are, under article 93 of the UN Charter, subjected to the statutes of the IJC. The third level is the system of rules, principles and concepts of international law that contain substantial issues in relations among states, and also to other international actors. Scott explains this as states using legal frameworks to justify violations of territory or other forms of using force. Her example is a case of North Atlantic Treaty Organization (NATO) bombing Kosovo in 1999. Yugoslavia explained this as violating territorial rights, while NATO expressed the bombing as acting on behalf of protecting humanitarian rights.18
This research puts the pyramid of Scott in a different way. The mare liberum theory of Hugo Grotius, explained by Christopher Rossi, a scholar specialized in IR and public international law, is the first level of the pyramid. The second level is an explanation of the UNCLOS, as convention from the IJC and the source of law most used in Arctic interstate interaction. In the third level, countries justify interstate interaction by using legal sources. This research agrees with Scott, but her focus on belligerent countries is less relevant for this research. Korea and China want to pursue their interests in the Arctic and benefit from Arctic (living) resources.
17 Ibid, 88.
18 Ibid, 87 – 110.
III
I II
Rules, principles and concepts pertaining to the operation of the system of world politics (modes of legal state interaction)
Rules, principles and concepts pertaining to the operation of the system of international law (sources of law)
The underlying philosophy/theory of international law
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This means bilateral or multilateral cooperation with Arctic states, because 90% of the resources are within their sovereign borders.
Image IV: overview of all undiscovered petroleum stocks in the Arctic19
Image IV visualizes that 90% of Arctic resources (the darker coloured areas), are located within territorial borders of the Arctic states. The Arctic Ocean (for a large part international territory) contains much less resources. Therefore, Korea and China need cooperation with the Arctic states rather than conflicts to pursue their interests in the Arctic resources.
2.1 MARE LIBERUM
This research focuses on the interstate interaction in legal domain, and therefore does not engage in the ongoing discussion in international law theory whether natural law or human- shaped law is the foundation of the system. The mare liberum – the free sea – is a theory of Hugo Grotius (1609) that argues that the sea, a gift from nature, either belongs to nobody (res nullius), as part of a common possession (res communis) or belongs to the public (res publica).
This means in essence that gifts from nature cannot be owned by any actor, except for fish, birds and other sea animals which can be owned by someone, and are thus not universal goods.
These two concepts formed his theory of private property: when something belongs to an individual, it is therefore incapable of belonging to someone else as well.20 Grotius’ theories
19 “Circum-Arctic resource appraisal: estimates of undiscovered oil and gas north of the Arctic Circle,” (San Francisco: United States Geological Survey, 2008), 2.
20 Christopher R. Rossi, Sovereignty and territorial temptation (Cambridge: Cambridge University Press, 2017), 30 – 33.
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are the basis of the common heritage of mankind principle which applies to the high seas, the deep seabed, the moon and outer space: there are special regions in this universe that belong to no one and therefore to all. The mare liberum formed the basis of international law as legal framework for geo-spatial areas beyond national jurisdiction.
Christopher Rossi however, besides acknowledging mare liberum as foundation of international law, also interprets it as an attempt to justify Dutch colonialism in the 17th century. His interpretation is helpful for this research, because he explains how international law is used to justify domestic interests. Rossi argues that by declaring the sea as universal property of mankind, the strongest nation benefits most from this equilibrium. The Dutch Republic was the largest naval power of the 17th century and the mare liberum was in fact a legal pamphlet of Grotius to support the monopolistic intentions of the Dutch in the Indonesian archipelago.21 When a legal principle turns a feature of trade into a common good, it helps the strongest power justifying his domination over the common good. Rossi calls this a territorial temptation, or the Grotian tendency. Rossi explains this theory by pointing at the Ilulissat Declaration. The Arctic 5 interpreted UNCLOS to explain their sovereignty over large parts of the Arctic Ocean.
However: the High Seas, Deep Ocean and the Area are part of the common heritage of mankind (further elaborated on in section 2.2).22
2.2 UNITED NATIONS CONVENTION ON THE LAW OF THE SEA
The mare liberum formed the basis of the common heritage of mankind principle, which is again the foundation of UNCLOS. The third United Nations Convention on the Law of the Sea was concluded in 1982 following a series of disputes over maritime claims. UNCLOS is a broad legal framework, signed by 163 countries, but only ratified by 149. The US is the most important country that signed the convention, but did not agree with the dispute settlement system. When the convention was drawn up, the Arctic, but also Antarctica, outer space and the deep seabed, were relatively unexplored areas. As a result, less specific regulation was created on the Arctic sea. For example: are the entrances to the Arctic Ocean inland waters or international straits? This discussion on interpretation, leads to countries explaining UNCLOS in a way which benefits their domestic needs. Russia claims the Bering Strait (one of the entrances to the Arctic Ocean) as inland water, while China sees it as an international strait.
Russia benefits most from this national claim, while China, by claiming international rights of
21 Ibid, 49 – 50.
22 Ibid, 173.
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transit passage uses the Grotian tendency. China justifies domestically rooted interests in the Bering Strait, by justifying it with a reference to an international legal framework.23
Furthermore, UNCLOS can precede or conflict other treaties and conventions. Article 30 of the Vienna Convention on the Law of Treaties applies when parties to an earlier treaty are also parties to a later treaty. The earlier treaty is not terminated or suspended in operation, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty.24 This means that treaties with different implications can be in operation together as long as contradicting parts are not applicable. A convention, such as UNCLOS, is a multilateral treaty and can therefore exist next to other treaties with other regulations. A good example is the Svalbard Treaty of 1920. The treaty grants the peaceful usage of the Norwegian archipelago to signatory states. This contradicts the sovereignty rights granted to Norway by UNCLOS part IV on Archipelagos. This led to a dispute between Norway and Russia over claims of natural resources in the Barentsz Sea, closely located to Svalbard.25
The previous two examples demonstrate the difficulties of UNCLOS. However, UNCLOS includes all waters in the world and is therefore the legal tool most used by Korea and China in their interstate interaction with the Arctic states. The remainder of section 2.2 gives a comprehensive overview of UNCLOS’ articles applicable to the Arctic situation. It is vital for the research to understand the rights of UNCLOS for all countries involved and to understand how they interpreted the same articles in their respective white papers and other declarations in a different manner.
23 Scott Shackelford, “The tragedy of the common heritage of mankind,” Stanford environmental law journal 28, no.1 (2009), 120.
24 Scott, International law in world politics, 147.
25 Zia, “Arctic melting,”133.
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Figure II: Visual construction of territorial rights of countries as agreed upon in UNCLOS
Figure II provides a visual overview of the rights countries have over their baseline, Territorial Seas, Contiguous and Exclusive Economic Zone and the Continental Shelf. In short, countries enjoy sovereign rights over their Territorial Sea with the seabed. However, other countries have rights of innocent passage through these territorial waters. Following, the Contiguous Zone grants right to prevent infringement of their customs, fiscal, immigration or sanitary laws and regulations within the Territorial Seas. The Exclusive Economic Zone (EEZ) provides sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living of the waters superjacent to the seabed.
However, other countries have the rights of navigation, overflight or even laying submarine cables and pipelines. Also, when the coastal state of the EEZ does not have the capacity to harvest the entire allowable catch of living resources, it shall, through agreements, give other states access to this surplus. Furthermore, the Continental Shelf of a coastal state compromises the seabed to a distance of 200 nautical miles from the baseline. It includes the seabed and the subsoil of the shelf, the slope and the rise, but not of the Deep Ocean or the Area. However, when a Continental Shelf extends further than 200 nautical miles, a country can submit for an
Continental slope
Continental
rise Deep Ocean
Continental slope
Continental rise
Deep Ocean
15
enlargement of this territorial zone up to 350 nautical miles, with a depth of 2,500 metres from the water surface to the bottom as limit.26
As figure II also shows, the High Seas, Deep Ocean and subsoil, The Area, are beyond national jurisdiction. No sovereignty claims can be made on these areas, and there is freedom of navigation, freedom of constructing artificial islands (drilling platforms for example), freedom of fishing and doing scientific research. States need to cooperate over the living and non-living resources and these areas are a common heritage of mankind. The High Seas, Deep Ocean and The Area are exclusively used for peaceful purposes. When resources are both in The Area and within national borders, the consent of the coastal state is needed. Another important element of the areas applicable to the common heritage of mankind principle, is the importance of joint protection and preservation of the marine environment.27 This is stated in Article 197:
“States shall cooperate on a global basis, and as appropriate, on a regional basis, directly or through competent international organizations, in formulating and elaborating international rules, standards and recommended practices and procedures consistent with this convention, for the protection and preservation of the marine environment, taking into account characteristic regional features.”28
This is an interesting article, because it was interpreted by the Arctic 5 as a reason to cooperate together, on a regional basis, instead of on a global basis. Again, there is room for interpretation within the UNCLOS framework.
In case of a conflicting interpretation of an UNCLOS article, a dispute settlement procedure can be started. The options are: the International Tribunal for the Law of the Sea, the International Court of Justice and two special tribunals. However, states remain free to settle disputes by any peaceful means of their own choice. This means to a certain extent, that UNCLOS cannot always regulate and enforce their articles. Also the fact that the US did not ratify Part XV, the Dispute Settlement System, and thus does not accept the enforcing side of the regulatory framework emphasizes why countries try to interpret UNCLOS in a manner of self-interest. If ‘even’ a large nation as the US does not need to ratify the system, other countries also seek the opportunity to pleat the legal framework to their own national interests.
26 “United Nations Convention on the Law of the Sea,” (New York: United Nations, 1982), article 2, 3, 33, 56, 57 and 76.
27 Ibid, 86, 89, 116, 118, 136, 141, 142 and 194.
28 Ibid, 197.
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Image V: Visualization of EEZ and other offshore national borders in the Arctic as agreed upon with UNCLOS29
The blue dotted lines in image V show the 200 nautical mile limits of the EEZ, or agreed national borders of the Arctic states. This demonstrates, again, that there are agreements in operation next to the UNCLOS regulations. The coloured areas beyond these lines show the claims on extended shelfs beyond the 200 nautical mile limit: a good visualization of how actively the Arctic states are claiming the Arctic Ocean.
2.3 RHETORIC OF INTERNATIONAL LAW
The mare liberum theory was the basis for the common heritage of mankind principle which led to UNCLOS. UNCLOS is the most important legal tool of interstate interaction between the East Asian and the Arctic states. This third level explains how and why this legal instrument is used. Examples from the past demonstrate that countries use forms of political and legal morality to justify that they violate international law. States defend actions with own interpretations of a specific treaty. Goldsmith & Posner give Nazi Germany as example, using the immorality of the Versailles treaty, to justify the marching into the Rhineland in 1936. States often justify their interpretation based on ideals. These ideals regularly reflect historical conflicts or international ethical norms. The opposite of violating international law and
29 Author unknown, “Frozen conflict,” The Economist, December 17th, 2014, https://www.economist.com/international/2014/12/17/frozen-conflict
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conflicting with other countries, is cooperation within international legal frameworks.
Cooperation is expected to occur between countries with common cultural backgrounds, political ideas and economic interests: referred to as in-group cooperation.30 So countries violate international law, accuse other countries of violating it, and cooperate based on international law. However, if it is a system of interpretation and justification of actions, why would it work? Critics say that this legal game functions as pretext for actions motivated by a desire for power. On the contrary, if political interactions would never be done conform international law, the system would not exist. The fact that countries use legal frameworks for political interaction can be seen as evidence for opinio juris: countries accept the system of international law.31
How do states use legal rhetoric in political interaction? There are two conditions in which states do not have interaction in legal manner: a pure conflict (war or other territorial conflict), or when states have full information about each other’s strategy and therefore all interaction would be superfluous. As earlier explained, Korea and China do not intend war. The countries respect the territorial rights of the Arctic states and therefore seek for collaboration, to pursue their interests in the Arctic region. This happens in two ways: cooperation and coordination.
Table I: methods of legal state interaction as described by Goldsmith & Posner
Table I shows cooperation and coordination methods of interstate interaction in legal domain.
The first step of cooperation is sending signals to the other state to show itself as attractive cooperative partner. Sending signals include: paying debts, respecting state borders or other forms of authority. However, sending signals is costly: cooperation always costs something. If cooperation would be costless, it would not be believed by the other state, because every state can say that they want to cooperate. Signs of willingness to cooperate is considered a weak signal. However, every state sends these signals, as a form of courtesy in a legal way. As Goldsmith & Posner explain: this is called cheap talks, because an equilibrium arises since
30 Goldsmith, The limits of international law, 168, 181 – 183.
31 Ibid, 170 – 171.
Cooperation Sending signals
Cooperation always costs something (cheap talks)
Interpretation is key
Audience matters (domestic/international)
Coordination Similar engagement without knowing each other’s next step
Announcing next move (cheap talks)
Aligning to other (stronger) state in return for more pay-offs
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every state sends these politeness signals. Nonetheless, not sending weak signals is also a bad sign, because a country does not even make the effort to disguise their real intentions.
There has to be costs and pay-offs for both sides if states really want to cooperate. The balance between costs and pay-offs is important for cooperation. Interpretation is key since interstate cooperation is executed by means of legal sources or legal ‘talk’. States need to exchange interpretation over similar legal sources, because they can both interpret it differently. And lastly, states send signals to both domestic and international audiences in the same legal sources. Domestic audiences might be poorly misinformed and need to be pleased for their votes. Foreign leaders invest more in the motives of other states than in the text of policy goals, because they know policy texts are part of rhetoric and underlying signals is what matters.32 The elements of the cooperation method are intertwined. A country sends a signal – this can be a weak signal or cheap talks – or has cooperation costs. Often is the interpretation of a legal source involved in this signal and it is always sent to a specific audience.
The coordination method (consult table I again) appears when interests of states converge.
Goldsmith & Posner advocate that, state interests can overlap and certain cooperation needs to be coordinated to prevent conflicts. States engage in similar actions, without knowing the next step of one another. Actions could be mutual beneficial, but is less clear how the other would respond. A way to solve this coordination problem is to announce next steps. Announcing next steps is also a form of sending signals to the other party. However, since interests overlap, it differs per situation how the other party responds to these signals. Signals include publishing white papers with policy plans, as demonstrated in this research. The other state can believe these next steps and make a similar move. However, announcing a move can also be a form of cheap talks: when both countries announce a similar vague action, a new equilibrium arises.
This research argues that the coordination methods often occur between unequally powerful states. Weaker states regularly strategically ‘align themselves’ to stronger states as a method of coordination. Aligning can have higher pay-offs for the weaker state, compared to a situation on its own.33
32 Ibid, 172 – 174, 176 – 181.
33 Ibid, 175 – 176.
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3. METHODOLOGY
How applies this research this comprehensive theoretical framework? The research consists of two cases, Korea and China, in chronological order. Korea presented its whitepaper in 2013, while China presented its Arctic policy in 2018. Both cases are analysed as comparative case study, since Korea and China differ in size and impact, and have commonalities and differences in Arctic policy. It is relevant to understand how and why they cooperate in interstate interaction with the Arctic states. Their differences display the diversity of the East Asian block in Arctic affairs. Each case study starts with a contextual part of why Korea and China are interested in the Arctic region. The context forms the domestic underlying arguments by which interstate interaction in legal domain is motivated.
The motivation and ideology of the states to get involved in the Arctic is vital to understand how the countries operate in this system of interstate interaction in legal domain. Policies are embedded in domestic ambitions. The contextual section is connected to the analysis of the policy documents, because the contextual elements explain why Korea or China presented a specific policy and what the underlying (domestic) motive of the policy is. The contextual section is divided into a political, economic and social part with multiple elements. The contextual elements are referred to as political, economic or social contextual elements, to prevent confusing the contextual elements with analytical arguments.
The main primary sources of the research are the two white papers (consult appendix 9.1 and 9.2). Next to the white papers also other declarations, treaties, laws, governmental statements and intergovernmental meeting-documents are used. The white papers are a device of interstate interaction, because they present the key plans and policies to the different audiences.
An important difference between the two white papers is that Korea’s key plans were set until 2017, while China only presented its policies in 2018. This means that some Korean plans are already in advanced stages compared to China’s plans, but China has already announced parts of its policies in a keynote speech at the third Artic Circle Assembly (2015).34 Therefore, this research argues, the two white papers are suited for a comparative analysis.
34 “Keynote speech by Vice Foreign Minister Zhang Ming at the China country session of the third Arctic Circle Assembly,” (Beijing: Ministry of Foreign Affairs of the People’s Republic of China, October 17th 2015), 3.
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Korea’s white paper consist of four major strategic goals with 31 key plans labelled to it.
China’s white paper includes five policy goals and 31 policies attached to the goals. To avoid confusion, this research uses major strategic goals and key plans in the Korea’s section, and policy goals and policies in China’s section. Korea’s major strategic goals and China’s policy goals are the main arguments of their documents, with more practical and concrete key plans (Korea) or policies (China) attached to it. The key plans or policies are numbered and clustered in order to prevent exhaustive summaries. These labels help the reader to understand the different levels of analysis.
The first step of analysis is to detect the cooperation and coordination elements of Korea and China in their policy papers. The analysis includes – previously mentioned – exposing signals, actions, cheap talks, interpretations of legal sources such as UNCLOS, which audience they approach, but also if there is any similar engagement, announcement of next moves (with or without cheap talk), and alignment to other states. As briefly mentioned in theory section 2, the elements of the cooperation method are intertwined. When countries send signals, either weak signals/cheap talks or cooperation costs are involved. Often a sent signal is an interpretation of a legal source and a signal is always sent to a specific audience.
The research analysis follows the upside down structure of the theoretical pyramid. Firstly, the legal rhetoric of interstate interaction is an analysis on cooperation and coordination.
Subsequently is tested how these methods use the legal sources of UNCLOS, and other relevant treaties, to pursue their underlying domestic interests.
Section 6, on comparative analysis, indicates the commonalities and differences in the contextual elements and the Korean major strategic goals and key plans versus the Chinese policy goals and policies. This section helps to understand how complex the Korea-China relations are and how interstate interaction presented in white papers is written for several audiences.
Primary sources form the core of research that, again, demonstrates how contemporary and ongoing the topic is. The secondary sources are from a comprehensive variety of scholars. This analysis of the white papers, combined with the contextual knowledge makes it possible to answer the question how Korea and China pursue their (common or differing) legal, political and economic interests in the Arctic, as formulated in their respective white papers.
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4. THE REPUBLIC OF KOREA AND THE ARCTIC
This chapter is divided into two sections. The first section explains contextual elements of why and how Korea is involved with Arctic affairs. This section is divided into a political, economic and social part. The second section analyses the Korean Arctic Masterplan in order to understand how Korea tries pursue its legal, political and economic interests in the Arctic. This section is divided into the four major strategic goals from the Arctic Masterplan and the 31 key plans attached to the goals.
4.1 KOREA’S REASONS FOR ARCTIC INVOLVEMENT 4.1.1 Korea’s political context
This research identifies three political contextual elements: political ambition, the emphasis on scientific cooperation and the fear for conflicts. The first political contextual element, the political ambition of the Korean government, is expressed in the ‘Global Korea’ and ‘Global Arctic’ strategy. This demonstrates the political willingness to get more involved globally. The Korean government is working together with other countries, on a Eurasian Initiative. This network project involves several infrastructural projects connecting Asia to Europe.35 This is similar to the Belt and Road Initiative (BRI) of China. Resources are needed to realise these projects and that is what Korea wants to extract from the Arctic. The political willingness towards the Arctic can therefore be seen as resource diplomacy.36 Several domestic actors are concerned with Arctic affairs: Ministries of Foreign Affairs, Oceans and Fisheries, Science IT and Future Planning, Trade Industry and Energy, Land Infrastructure and Transport and Environment. Also the Korean Meteorological Administration, Korea Polar Research Institute, Korea Maritime Institute, Korea Institute for Ocean Science and Technology and the shipping, ports, infrastructure, energy and fisheries sectors, are involved. This demonstrates that the Arctic stakes are high for Korea. The Ministry of Foreign Affairs has a secretary function in guiding the Arctic affairs and is responsible for the Arctic Masterplan.37 This policy paper is currently not legally binding for the Korean law and the government is working on legal
35 Iain Watson, “From middle power to pivot power: Korea as an Arctic Observer in the age of Eurasia,” Pacific Focus 31, no. 3 (December 2016), 333 – 335.
36 Hyun Jung Kim, “Success in heading north? South Korea’s Arctic Masterplan for Arctic policy,” Marine Policy 61 (2015), 265 – 266.
37 Tonami, Asian foreign policy in a changing Arctic, 78.
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enforcement with a Polar Activities Promotion Act. This shows Korea’s political willingness for more legal embedded Arctic activities.38
Second political contextual element of Korea is their emphasis on scientific cooperation. This is expressed in the government’s strategic focus on joint scientific research. Countries see scientific research as important and non-violent. Multiple countries are interested in Arctic research on climate change consequences. Improved scientific research costs a lot of money, because more research centres and technological equipment is needed.39 By taking a leading position in scientific research, Korea exposes good intentions to the Arctic states and the international community.
Third political contextual element is Korea’s fear for conflicts. Korea sees rising tensions between Arctic countries and increased militarization in the Arctic as a worrying state of affairs.
The Korean government emphasizes their position as middle-sized country and tries to acquire a mediating role in conflicts. Korea sends signals of trustworthiness (further elaborated in 4.2) to Arctic states.40 Korea fears conflicts close to its soil and sees northern neighbour, The Democratic People’s Republic of Korea (DPRK), as biggest threat. Conflicts often lead to alliance formation, and Korea fears the nuclear strength of the DPRK. Political cooperation can be interpreted as a strategy for Korea to increase influence in Arctic affairs, but also as a reason to prevent conflicts.41
4.1.2 Korea’s economic context
The economic context of Korea consists of two elements: the importance of collaborations and Korea’s valuable Arctic-related assets. First economic contextual element is the importance of collaborations. Korea is currently involved in several collaborations with Arctic states.
Especially the shipping and oil exploitation deals with Norway gives Korea a good position in Arctic affairs. Korea is a leading country in ship manufacturing and Norway upholds the International Maritime Organization (IMO) mandatory for Polar classifications. About 70 percent of bilateral trade between Korea and Norway is related to ship building and other maritime industries.42 This research argues, despite the scientific focus of the government, that
38 Kim, “Success in heading north,” 269.
39 Ibid, 268.
40 Watson, “From middle power to pivot power”: 342.
41 Vijah Sakuja and Kapil Narula, Asia and the Arctic – narratives, perspectives and policies (Singapore: Springer 2016), 53.
42 Watson, “From middle power to pivot power,” 352 – 353.
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these kind of far-reaching collaborations with Arctic states have a vital place in Korea’s Arctic strategy.
Second economic contextual element (as further explained in 4.2): Korea’s valuable Arctic- related assets. The highly technological development in navigation, ice breakers and equipment, combined with one of the largest ship manufacturing sectors in the world, make Korea a valuable Arctic partner. Arctic states are eager to collaborate with Korea for these assets. The Korean government therefore expects the next economic miracle to happen by means of Arctic resources.43 Vice versa, Korea is dependent on the Arctic market to keep the ship manufacturing industry on a global competitive level. Also the lack of fossil fuels on Korean soil functions as a catalyst for the need of more economic cooperation. The developments in the Arctic with its resources can possibly change Korea’s dependency on Arab oil.44 Korea has valuable assets, but also needs Arctic resources to improve their economic situation. Korea and the Arctic states are therefore interdependent.
Korea wants to become a Northeast Asian hub for oil from the Arctic, with an estimated value of 25 billion USD oil per year shipped to third parties.45 Shipping lanes through the Arctic Ocean are essential for this plan. As explained in the introduction, the current situation of the Arctic Ocean is far from ideal for intensive shipping transportation. This research argues that Korea, with valuable Arctic-related assets, wants to position itself in the front row, in case the circumstances of the Arctic Ocean change for the better.46
4.1.3 Korea’s social context
The social contextual element is the role of Korea’s domestic audience. Political willingness, resource exploitation and shipping lane plans are partly stimulated by the influence of Korea’s business community. The big corporate companies of Korea such as Daewoo, Hyundai and Samsung (known as chaebols) have a strong relation with the Korean state. These companies are either interested in Arctic resources or want to sell their highly advanced technologies, such as ice breakers, to the Arctic states and other interested parties.47 The government of Korea is therefore somewhat accountable to the chaebols for its Arctic policy, because of this strong public-private relations.
43 Sakuja, Asia and the Arctic, 58.
44 Ibid, 55.
45 Watson, “From middle power to pivot power,” 351.
46 Tonami, Asian foreign policy in a changing Arctic, 79.
47 Ibid, 83.
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This contextual section sums up reasons why Korea wants to pursue its legal, political and economic interests in the Arctic. The government, partly driven by the influence of the chaebols, exercises a resource diplomacy to stimulate its domestic industry. The opportunities the shipping lanes could offer to the shipping manufacturing industry and the exploitation of Arctic resources to this country lacking domestic resources, make the Arctic utmost important to Korea. The stakes are high for Korea and this explains why Korea puts so much emphasis on shipping lanes in its Arctic Masterplan.
4.2 ANALYSIS OF KOREA’S ARCTIC MASTERPLAN
When Korea published its Arctic Masterplan on December 10, 2013, Park Geun-hye was still president of the Republic. Her foreign policy was based on the earlier mentioned Eurasian Initiative and ‘Global Korea’ concept.48 The Arctic Masterplan contains four major strategic goals and 31 key plans attached to the goals. The Arctic Masterplan was planned to be effective from 2013 until 2017 and this section therefore examines how Korea pursued its legal, political and economic interests in the Arctic and if this somehow is succeeded. Four key plans are not discussed, because they are identical to other key plans. Most of the key plans are clustered, to prevent exhaustive summarizing. This research argues, elaborated on in the sub-sections, that Korea chose for a more cooperative than coordinative approach towards the Arctic states. Korea send several cooperation signals by means of key plans in its white paper and refrains from much cheap talk. However, Korea interprets UNCLOS in a different way than the Arctic five coastal states because Korea insists on more international use of the Arctic Ocean and on Arctic law, in order to pursue its political and economic interests.
48 “ROK becomes a permanent observer to the Arctic Council, expanding the horizon of the Park government’s Eurasia diplomacy,” (Seoul: Ministry of Foreign Affairs, May 15th, 2013).
