Neither Conflict nor “Use It or Lose It”
Delineating extended continental shelves in the arctic
The Arctic seabed is known to contain large quantities of oil, natural gas, and mineral resources. Resource development is frequently associated with conflict, both in media articles and scholarly works. Such writings encourage us to associate resource development with conflict and zero-sum politics, with a race to stake claims and a proliferation of military and naval activities in support of assertions of sovereignty. Predictions of impending armed conflict over Arctic seabed resources, while less prevalent than the fearmongering of several years ago, are still prevalent. Yet contrary to such dire predictions, the delineation of extended continental shelves in the Arctic is proceeding in an orderly, cooperative fashion.
The term “extended continental shelf” (hereafter the ECS) refers to the area beyond a coastal state’s exclusive economic zone, beginning 200 nautical miles from the straight baselines from which the territorial sea and exclusive economic zone are measured and extending a distance determined by criteria specified in Article 76 of the United Nations Convention on the Law of the Sea (hereafter the UNCLOS). There is an international legal regime in place to govern the delineation of the ECS. Moreover, its rules are being observed by all Arctic countries.
The rules and regulations governing the world’s oceans are specified in the UNCLOS. According to the latter, all coastal states have sovereign rights to the resources in the water column and seabed within 200 nautical miles from shore. The UNCLOS defines the continental shelf as a submerged prolongation of the coastal state’s land territory. When such prolongations extend beyond 200 nautical miles, they belong to the coastal state. (Articles 76-85) On its ECS, the coastal state has sovereign rights to explore and exploit the non-living resources and sedimentary species of the seabed and subsoil (Article 77); hence, the interests at stake are considerable.
The UNCLOS specifies both enabling criteria for ascertaining if the continental shelf protrudes beyond 200 nautical miles, and constraints as to the amount of seabed beyond 200 nautical miles over which the coastal states has rights. Responsibility for defining its continental shelf rests with the coastal state, which must conduct scientific research to determine if its continental shelf extends beyond 200 nautical miles and, if so, the limits of its outer edge. After gathering and analyzing seismic and bathymetric data in accordance with the enabling and constraining formulae, the coastal state is required to make a submission to the United Nations Commission on the Limits of the Continental Shelf (hereafter the Commission). The latter comprises 21 individuals elected by State Parties to the UNCLOS on the basis of their expertise in geology, geophysics, or hydrography, with due regard for geographic representation. The Commission reviews coastal states’ submissions, assesses the extent to which they define ECSs in conformity with existing international legal norms, and makes recommendations to coastal states on such matters. The UNCLOS stipulates that, “The limits of the shelf established by a coastal State on the basis of these recommendations shall be final and binding.” (Article 76.8) Thus it is the coastal state – not the Commission – that establishes the outer limits of the continental shelf.
The UNCLOS is clear that the coastal state does not have to exercise sovereignty over the continental shelf in order to enjoy its rights: “The Rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation.” (Article 77.3) Thus, the Russian Federation planting a flag on the Arctic seabed beneath the North Pole was a symbolic gesture but it had no legal significance. It is not a case of “use it or lose it”. A state’s continental shelf either meets the UNCLOS’s criteria for an extension or it does not.
The international regime specifies time constraints for making submissions to the Commission. Countries, such as Norway and the Russian Federation, that ratified the UNCLOS prior to 1999 had until 2009, while the states that became parties after 1999 have 10 years from the time of ratification or accession to make their submissions. Canada ratified in 2003 and Denmark in 2004; hence, they have until 2013 and 2014, respectively, to present their documentation to the Commission. The Russian Federation presented its first submission in 2001 and received comments from the Commission. As the latter found the Russian information insufficient to support its delineation of its continental shelf, Russian scientists have conducted further research. This year, Russia presented a partially revised submission pertaining to the Okhotsk Sea. A further resubmission is expected in 2014. Norway’s 2006 submission pertaining to the northeast Atlantic and the Arctic received a favourable review from the Commission. To complete the process, the Norwegian government must now enact legislation establishing its Arctic ECS. Denmark has made a submission pertaining some – but not all – of its Arctic ECS. In 2012, it presented documentation pertaining to the southern continental shelf of Greenland, which has yet to be reviewed. This December, Canada will make a comprehensive submission pertaining to the ECSs off its east coast and in the Arctic. While the details of the submission are not available, the area to be included is vast: Canada estimates that its continental shelf beyond 200 nautical miles in the Atlantic and Arctic Oceans covers approximately 1.75 million square kilometres (equal to the three prairie provinces combined). Once a submission has been presented, the Secretary General makes the executive summary public.
The fifth Arctic coastal state, the United States, is not a Party to the UNCLOS; hence, it does not have the right to make a submission to the Commission. The Obama Administration, like the Bush Administration before it, has asked the U.S. Senate to approve accession to the UNCLOS. Republican opposition to the convention, which dates back over three decades, remains the principal obstacle to accession. In 1981 the Republican administration of Ronald Reagan announced that it would conduct a review of all the provisions in the UNCLOS, much to the consternation of the vast majority of the world’s countries, which had worked long and hard over the preceding eight years of the UN Conference on the Law of the Sea to negotiate a comprehensive treaty. The conference was left marking time for a year, while the U.S. conducted its review. The Reagan Administration then announced that it was rejecting the UNCLOS on the grounds that its provisions, particularly those pertaining to the development of the international seabed (the area beyond national jurisdiction), were not consistent with its capitalist, free-enterprise values. Ironically, most of the administration’s key objections were to provisions that had been proposed by former Republican Secretary of State Henry Kissinger in 1976 in order to secure concessions from the Group of 77 (the Southern countries) to safeguard U.S. interests as a potential deep seabed mining country. Republican opposition to the UNCLOS continues to prevail. Although Democrats slightly outnumber Republicans in the U.S. Senate by a narrow margin of 54 to 46, there has not yet been sufficient support to carry a vote in favour of accession.
Yet as increasing numbers of coastal countries make their submissions to the Commission, pressure continues to build within the United States for accession, so that it, too, can present a submission and thereby begin the process of gaining international recognition of its ECS. In the meantime the U.S., like other Arctic countries, is conducting research on the continental shelf beyond 200 nautical miles in accordance with the UNCLOS provisions.
Not only are the five coastal Arctic states, including the U.S., complying with the UNCLOS, but non-Arctic states, including China, France, Germany, India, Italy, Japan, the Netherlands, the Republic of Korea, Poland, Singapore, Spain, and the United Kingdom, have agreed to respect the sovereignty of Arctic countries, as a condition for being granted Observer status at Arctic Council meetings. This condition includes respecting coastal states’ rights as specified in the UNCLOS.
While the early submissions by the Russian Federation and Norway were reviewed fairly quickly (six months and two-and-a-half years, respectively), the Commission now faces a huge backlog. As of June 2013, it had received 66 submissions yet only 18 had received recommendations and another six were being reviewed. In an effort to speed up the evaluation process, the Commission has made two procedural changes. First, its Sub-Commissions are now meeting three times per year for sessions of six or seven weeks each instead of only once. Secondly, each Sub-Commission now reviews two submissions at a time rather than one; hence, while waiting for one state to respond to queries pertaining to its documentation, the Sub-Commission can move on to examine the other submission. Even with these positive improvements, the problem of backlog persists. If progress continues at the current pace, it will be decades before submissions made after 2009 are reviewed.
The process of delineating Arctic ECSs has been marked by bilateral and multilateral cooperation among Arctic countries. Collaboration makes good sense in light of the exorbitant costs and the logistical difficulties of Arctic surveys, and it also helps to legitimize the findings when they are presented to the Commission. Canadian and Danish scientists have collected and analysed data pertaining to the area north of Greenland and Ellesmere Island, while Canadian and American scientists have conducted studies together in the Canada Basin and Arctic Ocean. Such collaborations have resulted in joint publications and joint presentations at scientific conferences.
Since 2007, Canadian, Danish, and Russian scientists have held annual meetings to discuss scientific and technical matters pertaining to the Arctic ECSs. At the first meeting, the Russian scientists presented some of the charts, maps, and data of their 2001 submission to the Commission. Since most of the data, charts, and analyses contained in a state’s submission are confidential, the only way that other states may discover the details is through consultations with the submitting state. This sharing on the part of Russian scientists exemplifies the high degree of multilateral collaboration in Arctic research and the importance of these meetings.
At the multilateral meetings in 2008, U.S. scientists were invited to participate as observers. In 2009 representatives of the Canadian, Danish, and Russian foreign ministries also began to attend the meetings. In 2010, participation was further widened to include Norwegian officials. Since then the meetings have involved scientists and diplomats from all five Arctic coastal countries. They serve as venues in which to share scientific findings as well opportunities for international legal experts to discuss other issues relevant to submission preparation.
The commitment to peaceful cooperation is not only evident in these meetings; it has also been formalized. In the 2008 Ilulissat Declaration, Canada, Denmark, Norway, the Russian Federation, and the United States recalled the extensive legal framework that applies to the Arctic Ocean, pledged to strengthen their existing close cooperation in the delineation of their respective Arctic ECSs, and committed themselves to the orderly settlement of any possible overlapping claims.
While cooperation, not conflict, has characterized relations among the coastal Arctic countries in the preparation of their respective submissions, there will be overlaps in the ECSs, just as there are often overlaps in the exclusive economic zones between adjacent and opposing states. For example, Canada, Denmark and the Russian Federation are all expected to include sections of the Lomonosov Ridge in their respective submissions, although the likelihood of claims being made to the same seabed are as of yet unknown. The Commission is a technical body responsible for making recommendations pertaining to the outer limits of the continental shelf. It has no mandate to resolve overlapping maritime boundaries, and submissions to it “are without prejudice to the question of delimitation of the continental shelf between States with opposite or adjacent coasts”. (Article 76.10) Responsibility for resolving such disputes rests with the states involved. Past experience has shown that resolving maritime boundary disputes can be difficult and protracted; however, political and legal channels have been used in the past and they will be used in the future, as evidenced by the 2010 agreement between the Russian Federation and Norway ending their bitter maritime boundary dispute of some 40 years in the Barents Sea.
The delineation of the Arctic ECSs stands in contrast to the findings of scholars, such as Michael Klare, who have examined state responses to the scarcity of oil, natural gas, minerals and water in other parts of the world. In Resource Wars: The New Landscape of Global Conflict, Klare concludes that states are increasingly resorting to military policies in their global scramble for natural resources. While there has been military rhetoric to back claims of sovereignty in the Arctic generally, the process of delineating the ECSs has been characterized by bilateral and multilateral cooperation. Why the difference? Several factors help answer the question. Scientists have a long history of cooperating in the Arctic, and defining the continental shelf has been largely a scientific enterprise. Arctic countries have a mutual interest in cooperating and the need to do so is well recognized. Collecting the data required for the submissions is expensive and time consuming – factors militating in favour of cooperative ventures.
While the long term potential for exploiting natural resources beyond 200 nautical miles may be considerable, expectations of great riches need to be tempered. The greatest potential is on land and within the exclusive economic zones. Developing seabed resources beyond 200 nautical miles will be fraught with difficulties, including the enormous costs and environmental risks of extracting and transporting the resources to markets, the short seasons, the challenging climatic conditions, and the high insurance premiums. There are still a lot of resources to develop on land, where the risks and logistical problems are far less daunting. While Arctic coastal states are eager to establish their ECSs, there is relatively little pressure to begin mining and oil and gas extraction beyond 200 nautical miles. ECS resources are neither as plentiful, accessible nor as economically viable as media predictions of vast riches suggest. For all the reasons discussed above, the process of delineating the Arctic ECSs has been peaceful. A functioning legal regime is in place. Not only are its rules being observed by all participants but the degree of cooperation and collaboration among them is notable.
> For more on the Arctic, see our series Cold Calculations: The Politics of Arctic Development.