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The Continental Shelf Beyond 200 Nautical Miles in the Arctic Basin*

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The Continental Shelf Beyond 200 Nautical Miles in the Arctic Basin* 717 The Continental Shelf Beyond 200 Nautical Miles in the Arctic Basin * Jianjun Gao ** Résumé Abstract Cet article traite de la diffi cile déter- This article deals with the diffi cul- mination des droits des États côtiers de ties to settle the rights of coastal states in l’océan Arctique au-delà des 200 miles the Arctic Ocean beyond the 200 nautical nautiques de leur littoral. L’auteur exa- miles of their coast. In the fi rst part, the mine d’abord les prétentions de la Russie author looks at the submissions of Russia et de la Norvège à ce sujet. Il traite ensuite and Norway on that issue. In the second de la propriété des hauts-fonds marins, part, the author discusses the property l’une des principales revendications des rights over the seafl oor highs, which con- États côtiers. stitutes one of the most important claims of coastal states. * Prepared for the workshop between the International Law Faculty of China University of Political Science and Law and the Faculty of Law of the Université de Montréal. ** Professor of International Law at the China University of Political Science and Law. E-mail: [email protected]. Table of contents Introduction ........................................................................................... 721 I. The Submissions of Russia and Norway .......................................724 A. The Russian Submission of 2001 .............................................. 724 B. The Norwegian Submission of 2006 ........................................ 726 II. The Seafl oor Highs Issue in the Arctic Ocean .............................. 728 Conclusion ............................................................................................... 734 The Continental Shelf Beyond 200 Nautical Miles 721 The Arctic Ocean is a semi-enclosed sea bordered by fi ve states: Can- ada, Denmark (Greenland), Norway, the Russian Federation and the US. The Arctic Basin refers to the central basin of the Arctic Ocean and occu- pies most part of the seabed and subsoil of the Arctic Ocean that are beyond 200 nautical miles from the coasts of the littoral states. The Arctic Basin is divided into fi ve sub-basins by three through-going ridges of the Arctic Ocean. The Lomonosov Ridge 1, which traverses the Arctic from the New Siberian Islands off the Russian Federation to an area off Greenland (Denmark) and Ellesmere Island of Canada, divides the Arctic Basin into the Amerasia Basin and the Eurasia Basin: the Eurasia Basin consists of the Nansen Basin and the Amundsen Basin which are separated by the Gakkel Ridge, an extension of the Mid-Atlantic spreading ridge; while the Amer- asia Basin consists of the Podvodnikov and Makarov Basins and the Can- ada Basin which are separated by the Alpha-Mendeleev Ridge complex, which is the most extensive ridge system in the Arctic Basin, spanning the basin from the area off Canada and Greenland to Russia 2. According to article 76 of the United Nations Convention on the Law of the Sea (hereinafter “LOS Convention”) 3, where the continental margin of the coastal state extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, the state is entitled to the continental shelf beyond 200 nautical miles 4. On the other hand, such a coastal state shall submit particulars of its proposed outer limits of the continental shelf beyond 200 nautical miles to the Commis- sion on the Limits of the Continental Shelf (hereinafter “CLCS”) set up under Annex II of the LOS Convention, along with supporting scientifi c 1 The Lomonosov Ridge is more than 1500 km long, and the superjacent water depth ranges from more than 4200 m to less than 700 m. Mel Weber , “Defi ning the Outer Limits of the Continental Shelf across the Arctic Basin: the Russian Submission, States’ Rights, Boundary Delimitation and Arctic Regional Cooperation”, (2009) The Inter- national Journal of Marine and Coastal Law 24, 661. 2 Id ., 658 and 659. 3 Opened for signature on December 10, 1982 and entered into force on 16 November 1994 (www.UN.org/depts/los). By June 2011, the LOS Convention had 162 State Par- ties. Information available online at: <www.un.org/Depts/los/reference_files/chronological_lists_of_ratifications.htm #The%20United%20Nations%20Convention%20on%20the%20Law%20of%20 the%20Sea>. 4 LOS Convention, art. 76(1). Sometimes the continental shelf beyond 200 nautical miles is referred to as “extended continental shelf” by scholars. 722 (2011) 45 R.J.T. 717 and technical data for the examination by the latter5. Until now, all of the fi ve Arctic states have advanced claims to the continental shelf beyond 200 nautical miles in the Arctic Basin by various ways: Russia and Norway have submitted their outer limits of the continental shelf beyond 200 naut- ical miles in the Arctic to the CLCS in 2001 and 2006 respectively; Den- mark intends to make separate submissions for “the maritime areas north, north-east, and south of Greenland” 6; Canada plans to make its submis- sion in 2013 7; and the US is making preparation too 8. It is said that it may be possible for the Arctic coastal states to acquire most seabed of the Arc- tic Basin 9. However, the examination by the CLCS of the Russian and Nor- wegian submissions shows that it would not be an easy task for the Arctic states to succeed in establishing their claims to the seabed and subsoil beyond 200 nautical miles in the Artic Basin, by the application of arti- cle 76 of the LOS Convention. Of the fi ve states bordering the Arctic Basin, four are parties to the LOS Convention 10 , with the only exception of the US. It should be noted that some provisions of the LOS Convention refl ected the existing cus- tomary international law at the time of its adoption, and some others have acquired such a status later. These provisions will be applicable even in cases involving non-state parties to the LOS Convention. As far as arti- cle 76 is concerned, however, it “can hardly be viewed as a refl ection of 5 Id ., art. 76(8) and art. 4 of Annex II. 6 Receipt of the submission made by the Kingdom of Denmark to the Commission on the Limits of the Continental Shelf , 6 December 2010, CLCS.54.2010.LOS, available online at: <www.un.org/Depts/los/clcs_new/submissions_fi les/dnk54_10/clcs54e.pdf>. 7 Issues Related to the Workload of the Commission on the Limits of the Continental Shelf – Tentative Dates of Submissions , 16 January 2008, SPLOS/INF/20, available online at: <http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N08/209/61/PDF/N0820961.pdf? OpenElement>. 8 For example, when publishing its limits of the exclusive economic zone, the US declared that these limits “are without prejudice to the outer limit of the continental shelf of the United States where that shelf extends beyond 200 nautical miles from the baseline in accordance with international law”. Public Notice 2237: Exclusive Economic Zone and Maritime Boundaries; Notice of Limits , 23 August 1995, available at: <www. un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/USA_1995_eez_public_ notice.pdf>. 9 Tavis Potts & Clive Schofield , “The Arctic”, (2008) 23 The International Journal of Marine and Coastal Law 163. 10 Norway ratifi ed the LOS Convention on June 24, 1996, the Russian Federation ratifi ed the LOS Convention on March 13, 1997, while Canada and Denmark ratifi ed the LOS Convention on November 7, 2003 and November 16, 2004, respectively. The Continental Shelf Beyond 200 Nautical Miles 723 customary international law” 11 . Besides, although the US has declared that it accepted and would act in accordance with the LOS Convention’s provi- sions “relating to traditional uses of the oceans” 12 , whether article 76 is related to the traditional uses of the oceans is not certain 13 . Therefore, unless the US accedes to the LOS Convention, strictly speaking, the provi- sions of article 76 will not be defi nitely applicable between the US and the other Arctic Ocean littoral states 14 . On the other hand, in the Ilulissat Dec- laration adopted by the fi ve Arctic states in 2008, these states “recall that an extensive international legal framework applies to the Arctic Ocean […]. Notably, the law of the sea provides for important rights and obliga- tions concerning the delineation of the outer limits of the continental shelf, […] and other uses of the sea. We remain committed to this legal framework and to the orderly settlement of any possible overlapping claims” 15 . Today, it is well recognized that “the delineation of the outer limits of the continental shelf” should be achieved in accordance with article 76 of the LOS Convention. Furthermore, the US has already attempted to take part into the work of the CLCS by sending notes to comment the submissions made by other states in accordance with arti- cle 76 16 . So it seems reasonable to discuss the present issue within the framework of article 76, though the US has not joined the LOS Conven- tion. 11 Vladimir Golitsyn , “Continental Shelf Claims in the Arctic Ocean: A Commentary”, (2009) 24 International Journal of Marine and Coastal Law 405. 12 Statement by the President dated 10 March 1983 , available online at: <www.un.org/ Depts/los/LEGISLATIONANDTREATIES/PDFFILES/USA_1983_Statement.pdf>. 13 See, for example, V. Golitsyn, supra , note 11, 404. 14 For opposite view, see Oran R. Young, who states that the Arctic Ocean is fully covered by the LOS Convention, and the US has accepted most of the Convention’s provisions as a matter of practice: Oran R. Young , “The Arctic in Play: Governance in a Time of Rapid Change”, (2008) 23 The International Journal of Marine and Coastal Law , 435. 15 The Ilulissat Declaration, Arctic Ocean Conference , 29 May 2008, available online at: <www.ambottawa.um.dk/en/servicemenu/News/THEILULISSATDECLARATION ARCTICOCEANCONFERENCE.htm>.
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