Rachel Muhammad Thoriq, Abror Kafi Ananta, Sebelas Maret University

“Cuius est solum eius est usque ad coelum et ad inferos” (Whoever owns the soil, it is theirs all the way to the sky and to the depths) — this ancient Roman legal maxim captures the essence of territorial sovereignty as a three dimensional concept extending vertically from the earth’s core to the heavens above. Yet in the Arctic region, this principle has evolved into a complex geopolitical contest where multiple nations assert overlapping claims not merely over land, but across all vertical dimensions which international flights traverse. As climate change accelerates the melting of polar ice, the Arctic has transformed from a frozen frontier into one of the most contested geopolitical spaces of the 21st century, exposing critical weaknesses in international legal frameworks governing these multidimensional territorial assertions.¹

The contemporary “Scramble for the Arctic” represents an unprecedented challenge to international law because it involves not simply horizontal boundary disputes, but vertical claims. The ancient maxim of vertical sovereignty, when applied to the Arctic’s unique geophysical and legal conditions, reveals a system where unhindered vertical claims create overlapping assertions that international law is structurally incapable of resolving. Global attention on the Arctic has fixated overwhelmingly on horizontal claims, the scramble for seabed resources beneath melting ice. Media coverage and academic discourse concentrate on the Lomonosov Ridge that is claimed by Russia, Canada, and Denmark. These nations submitted geological data to the Commission on the Limits of the Continental Shelf (CLCS), seeking to extend their continental shelves hundreds of miles beyond their coasts. While significant attention is directed toward seabed resources, critical strategic competition is increasingly emerging in the airspace above.

Five nations possess coastlines bordering the Arctic Ocean and have submitted or are preparing claims that frequently overlap. They are Russia, Canada, the United States, Denmark, and Norway. These states, except the United States, operate with the United Nations Convention on the Law of the Sea (UNCLOS), which provides the primary legal framework for maritime claims.² Russia asserted rights to the ridge and the Mendeleev-Alpha Rise in a 2001 submission before symbolically planting a seabed flag in 2007.³ Canada countered by linking the ridge to Ellesmere Island⁴, and Denmark followed in 2014 with evidence connecting it to Greenland. While the CLCS accepted parts of Russia’s claim in 2023, disputes remain unresolved over this hydrocarbon-rich region. The situation becomes even more pronounced with respect to internal waters, creating one of the most contentious legal disputes in Arctic governance. Canada claims that the Northwest Passage (NWP) constitutes internal waters⁵, while Russia makes parallel assertions regarding the Northern Sea Route (NSR), also both countries citing Article 234 of UNCLOS which grants coastal states authority to regulate ice-covered waters of their EEZ.

The persistent opposition from the United States to these claims reflects not merely concern about maritime navigation rights but a fundamental disagreement about airspace control through strategically vital Arctic routes. The United States maintains that these straits qualify for transit passage rights under UNCLOS, which would prevent Canada and Russia from restricting passage based on national regulations, while both coastal states assert their right to deny passage in response to violations of their regulations based on Article 234. If the NWP and the NSR are international straits, UNCLOS (Articles 37–38) grants the right of “transit passage,” which explicitly includes a non-suspendable right of overflight for aircraft. However, if the claims by Canada and Russia that these are internal waters are recognized, they would acquire absolute sovereignty over the airspace above them. This would include comprehensive control over all airspace above these critical maritime corridors.

UNCLOS inadvertently engineered a security legal void by bifurcating economic rights on the seabed from navigational freedoms in the air. While the EEZ and Extended Continental Shelf (ECS) regimes grant coastal states specific sovereign rights over resources, Articles 58 and 78 clarify that the superjacent airspace remains international territory. This legal separation guarantees foreign nations the freedom of military overflight and reconnaissance above these zones, restricted only by the vague standard of “due regard.”

In the absence of a comprehensive international legal framework specifically governing Arctic airspace security, the region has transformed into an arena where states unilaterally project military power to establish de facto control over the skies. By legally separating rights over the seabed from the airspace, UNCLOS creates a security gray zone. It grants states highly valuable economic rights on the seabed (via Article 76) but fails to provide them with the legal tools to safeguard those interests against perceived security threats in the international airspace directly above (as affirmed by Article 78). Consequently, states have begun to act as if their de jure economic rights grant de facto security rights in the overlying international airspace. UNCLOS addresses airspace solely by limiting coastal sovereignty to territorial seas, leaving the airspace above EEZs international and devoid of security management or enforcement measures. This represents a classic phenomenon of creeping jurisdiction. UNCLOS’s structural limitations in regulating the vertical dimension of sovereignty illustrate how gaps in international law incentivize states to assert control through alternative mechanisms.

As long as the aerial activities are concerned, it needs to highlight the existing Chicago Convention as the principal international framework governing airspace. The  Convention established the International Civil Aviation Organization (ICAO) as a specialized agency of the United Nations charged with coordinating international air travel, establishing rules of airspace, aircraft registration, safety, security, and sustainability. However, Article 3 of the Chicago Convention specifies that state aircraft engaged in military, customs, and police operations are excluded from its provisions. The organization that possesses technical expertise in airspace management and decades of experience coordinating international aviation lacks any authority whatsoever over precisely the military activities that drive security competition. This creates an absurd situation where civilian aircraft flying over the Arctic are subject to comprehensive international regulation and coordination, while military aircraft operating in the same airspace follow only national rules and unilateral interpretations of international law. The sophisticated air traffic management systems and safety protocols that govern civilian operations exist in parallel to an essentially ungoverned military aviation environment where close encounters and intercepts occur according to ad hoc procedures developed through operational experience rather than negotiated agreements.

The legal complexity intensifies within EEZs and ECSs claims, creating what can only be described as a governance vacuum where theory and practice dangerously diverge. In these areas, extending up to 350 nautical miles from baselines under UNCLOS provisions, coastal states possess only sovereign rights rather than full sovereignty. These rights are specifically limited to exclusive subsoil resource access on the extended continental shelf, and successful extension claims in no way affect the legal status of the water column, the ocean surface, or the airspace above the extended continental shelf. The airspace above EEZs and continental shelf areas technically remains international airspace, where freedom of overflight should theoretically prevail under established principles of international aviation law.

States increasingly rely on unilateral measures to manage Arctic airspace because no international regime governs military aviation. One such measure is the Air Defense Identification Zone (ADIZ), defined in ICAO Annex 15 as “special designated airspace of defined dimensions within which aircraft are required to comply with special identification and/or reporting procedures additional to those related to the provision of air traffic service.” Although an ADIZ may extend into international airspace, it does not expand state sovereignty, as authority there remains determined by international law.⁶ ADIZs generate both legal ambiguity because they create partially controlled spaces that may overlap with other states’ jurisdictions and functional ambiguity, as states now use them to project strategic influence beyond early-warning purposes, fueling accusations and deliberate incursions.⁷

The intricacy of Arctic airspace is further compounded by the operational realities of ADIZs. Canada and the US jointly enforce their ADIZ through North American Aerospace Defense Command (NORAD) to ensure aerospace sovereignty. Operational duties are divided between the US managing flight plan requests, while Canada provides air traffic services across both zones.⁸ Concurrently, Russia maintains its own ADIZ in the region. Given the geographical proximity and the convergence of ECS claims, these defense zones are prone to overlapping. 

Another similar scenario occurred in the East China Sea, where conflicting ADIZs over disputed maritime territories have normalized aerial intercepts and heightened the risk of miscalculation. Overlapping ADIZs have occurred in the East China Sea, involving multiple nations. For instance, Japan’s 2010 expansion of its ADIZ around Yonaguni Island by 22 kilometers westward caused an overlap with Taiwan’s ADIZ.⁹ Similarly, China’s establishment of the East China Sea ADIZ in 2013 drew condemnation from Japan and South Korea because it created overlaps above the Senkaku and Diaoyu islands within airspace claimed by Japan, South Korea, and Taiwan.¹⁰ This condition can happen in the Arctic, where legal clarity is lacking and geopolitical competition is intensifying, these layers of ambiguity make ADIZs even more problematic, reinforcing uncertainty, misperception, and the potential for escalation. 

Without universal legal frameworks specifically addressing Arctic airspace sovereignty, states will continue deploying military aircraft, advanced radar systems, and air defense networks to unilaterally enforce airspace claims derived from disputed maritime assertions. The Arctic risks replicating the East China Sea model, where overlapping maritime claims generated unilateral ADIZ declarations, frequent military intercepts, and dangerous normalization of airspace appropriation absent international legal constraint. The Arctic should remain a commons accessible to all states for peaceful purposes, yet the legal vacuum surrounding vertical sovereignty threatens to militarize the region’s airspace. 

This shows that, as of now, international legal frameworks governing the Arctic address horizontal maritime delimitation while leaving vertical airspace sovereignty unresolved, thereby creating a dangerous legal vacuum that states are filling through unilateral and egocentric militarization. If the horizontal domain of the Arctic has already become a battleground of overlapping continental shelf submissions, what prevents its airspace from becoming the next contested frontier?

References

Book

Kieval, Mariel. “Arctic Resource Claims and the Lomonosov Ridge.” In Global Encyclopedia of Territorial Rights, edited by Kevin W. Gray. Springer Nature Switzerland, 2025. https://doi.org/10.1007/978-3-319-68846-6_494-1.

Burke, Edmund, and Astrid Cevallos. In Line or Out of Order? China’s Approach to ADIZ in Theory and Practice. RAND Corporation, 2017. https://doi.org/10.7249/RR2055.

Rinehart, Ian E, and Bart Elias. “China’s Air Defense Identification Zone (ADIZ).” Congressional Research Service, 2015. https://sgp.fas.org/crs/row/R43894.pdf.

Journal Article

Connolly, Daniel, and Alexander M. Hynd. “The Construction and Enforcement of East Asia’s Air Defence Identification Zones: Grey Volumes in the Sky?” Environment and Planning C: Politics and Space 41, no. 5 (2023): 1029–46. https://doi.org/10.1177/23996544231169378.

Fadhiil, Muhammad Dzaki. “Pelaksanaan Air Defence Identification Zone (ADIZ) sebagai Upaya Penegakan Hukum Wilayah Udara Negara Menurut Hukum Internasional.” Jurnal Program Magister Hukum FHUI “Dharmasisya” 2, no. 21 (2022). https://scholarhub.ui.ac.id/dharmasisya/vol2/iss1/21.

Gavrilov, Viatcheslav, Ted McDorman, and Clive Schofield. “Canada and the Russian Federation: Maritime Boundaries and Jurisdiction in the Arctic Ocean.” Arctic Review on Law and Politics 13 (June 2022). https://doi.org/10.23865/arctic.v13.3233.

Handeland, Ingrid. “Navigational Rights for Warships in the Northwest and Northeast Passages.” Arctic Review on Law and Politics 13 (March 2022): 143–59. https://doi.org/10.23865/arctic.v13.3383.

Ikeshima, Taisaku. “China’s Air Defense Identification Zone (ADIZ) and Its Impact on the Territorial and Maritime Disputes in the East and South China Seas.” Transcommunication 3, no. 1 (2016).

Macneill, Christopher Mark. “A Trip to Lomonosov Ridge: The Arctic, UNCLOS, and ‘Off the Shelf’ Sovereignty Claims.” Journal of Environmental Law and Litigation 35, no. 3 (2020).

Webpage

Dutta, Upamanyu. “Governing the Melting Arctic: Geopolitical Tensions and Legal Gaps.” Earth.Org. https://earth.org/governing-the-melting-arctic-geopolitical-tensions-and-legal-gaps/.