Brian Spielman, an Evaluation of Russia's Impending Claim for Continental Shelf Expansion: Why Rule 5 Will Shelve Russia's Submission

• Citation: Vol. 23 No. 1
• Publication year: 2009

AN EVALUATION OF RUSSIA'S IMPENDING CLAIM FOR CONTINENTAL SHELF EXPANSION: WHY RULE 5 WILL SHELVE RUSSIA'S SUBMISSION

INTRODUCTION

In August of 2007, a Russian ship, after plowing for over a week through layers of Arctic ice, released a mini-submarine, which dropped a titanium cast of the Russian flag onto the Arctic floor.¹Although the actual act of planting the flag has been dismissed as irrelevant,²the underlying motivation is not. In effect, the dropping of the titanium cast is a symbol of Russia's legal claim under the United Nations Convention on the Law of the Sea (UNCLOS) to a triangular area (the Region) of the Arctic Circle, the area located between Russia's Kola Peninsula to the west and the Chutoka Peninsula to the east, with the tip stretching to the North Pole.³The total area measures about

460,000 square miles and is believed to contain almost ten billion tons of gas and oil deposits.⁴

This land grab is not unprecedented, nor unexpected. Rather, the claim is actually a resubmission of Russia's initial 2001 claim for territorial expansion in the Arctic Circle, which was considered by the governing body of continental shelf expansion, the U.N. Commission on the Limits of the

Continental Shelf (CLCS or Commission),⁵and subsequently dismissed with a recommendation that Russia produce a revised filing.⁶

While Russia's 2001 claim was the first of its kind,⁷the years since the

2001 dismissal have seen a drastic increase in international activity relating to territorial acquisition in the Arctic region. Unsurprisingly, with the amount of territory and natural resources at stake, Russia is not without competition. Four other nations also have various territorial interests due to their geographic proximities to the Arctic Circle-the United States (through Alaska), Denmark

(through Greenland), Canada, and Norway.⁸Indeed, Russia's 2001 claim for territorial expansion was based on the Lomonosov Ridge,⁹which passes through Greenland to Canada's Ellesmere Island.¹⁰Canada and Denmark have taken actions to suggest that Russia's claim will not go unchallenged.

Recently, Denmark announced that it would submit its own claim for territorial expansion, while Canada has announced plans to build eight armed ships capable of cutting through ice.¹¹In 2006, Canada and Denmark undertook a dual scientific expedition known as "The Continental Shelf Project" to collect the bathymetric, seismic, and gravity data of the Lomonosov Ridge to establish claims to territorial expansion under UNCLOS.¹²The same year, Norway went one step further when it officially submitted its own claim for continental shelf expansion, including an express reservation of the right to claim additional territory.¹³

Though virtually all of the relevant information regarding continental shelf expansion claims remains confidential,¹⁴Figure 1 provides a general estimate of Russia's claim produced by the University of Durham.¹⁵

Part I of this Comment discusses UNCLOS mechanisms for continental shelf expansion, as well as the non-treaty-based obstacles Russia must overcome to see its revised filing ripen into a territorial acquisition about half the size of Western Europe. To accomplish this, Part II looks at Russia's 2001 submission, as well as the subsequent reactions of concerned nation-states to try to predict what a revised Russian claim would contain.

FIGURE 1: PREDICTED AREA OF RUSSIAN CLAIM (SOURCE: UNIVERSITY OF

DURHAM)

WNB

Using this prediction, Part III shows that without outside delimitation agreements between all of the countries concerned, the current structure of the CLCS makes any decision on Arctic sovereignty meaningless for resolving territorial disputes.

Finally, this Comment concludes that current assessments of the CLCS's effectiveness as a mediator of maritime boundary disputes drastically overestimate the benefits of the Commission in such situations, and that unless Article 76 of UNCLOS and Rule 5(a) of Annex I of the CLCS Rules of

Procedure¹⁶are modified, a successful Russian submission will not legally expand the country's continental shelf.

I. THE BACKGROUND OF CONTINENTAL SHELF EXPANSION

Though the notions of continental shelves and their expansion are relatively modern ideas,¹⁷both concepts have been reformulated numerous times since their inception.¹⁸Nevertheless, as this Comment will discuss, one of the problems that the reformulations intended to remedy still exists, and will likely render Russia's future claim fruitless.

A. The History of Continental Shelf Expansion

The continental shelf doctrine was created for the purpose of resource exploitation. In 1945, President Harry S. Truman proclaimed that the resources underneath the U.S. continental shelf were the sole property of the United States.¹⁹Thirteen years later, the international community sought to codify the law of the sea through four multilateral treaties produced by the first

U.N. Conference on the Law of the Sea.²⁰In its initial formulation, the 1958

Convention on the Continental Shelf (1958 Convention) defined the term "continental shelf" as the area "outside the area of the territorial sea, to a depth of 200 metres or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas."²¹

In this early model, there was no mention of continental shelf expansion through any type of geological claim.

Furthermore, two critiques were leveled at this initial formulation, one attacking the definition's practicality and the other its equity.²²The practicality critique attacked the phrase "exploitation of the natural resources"²³as being too imprecise, while the equity critique stated that basing the definition of "continental shelf" on the ability to exploit resources "naturally favoured developed States with more advanced technical capabilities."²⁴Under the equity objection, states with advanced technology could not only extend their continental shelves well past those of less advanced states, but could theoretically extend the shelves indefinitely as well.²⁵

Eleven years after the 1958 Convention, the International Court of Justice (ICJ) handed down an opinion that contained one of the earliest official recognitions of the concept of natural prolongation.²⁶In the North Sea Continental Shelf cases, the ICJ articulated the fundamental principle "that the submarine areas concerned may be deemed to be actually part of the territory over which the coastal State already has dominion,-in the sense that, although covered with water, they are a prolongation or continuation of that territory, an extension of it under the sea."²⁷This idea that a nation could extend its rights to harvest resources through a "prolongation" of that nation's territory would become the basis of UNCLOS Article 76, the modern doctrine of continental shelf expansion.²⁸

B. The Current Status of UNCLOS in Nations with Potential Claims to the

Arctic Circle

As mentioned above, the 1958 Convention was an attempt by the international community to codify the emerging international law of the sea. However, because the treaty's provisions were "ambiguous in some areas and completely deficient in others," a second U.N. Conference on the Law of the Sea was convened, but "[e]fforts to close some of the gaps and clarify some of the ambiguities . . . failed."²⁹In 1973, due to strong international support, a third U.N. Conference on the Law of the Sea began with the intention of creating a "comprehensive law of the sea treaty."³⁰Nine years later, in 1982, UNCLOS opened for signature.³¹

On June 24, 1996, Norway was the first nation with a potential claim to the Arctic region to ratify UNCLOS.³²On March 12, 1997, Russia also ratified UNCLOS.³³It was another six years before Canada ratified the Convention on November 7, 2003, and Denmark ratified the Convention the following year.³⁴

As of publication, the United States has not ratified UNCLOS.

Following ratification, each nation has a ten-year period to submit its claims for territorial expansion.³⁵The ten-year limit for claims does not apply to all filings, just the "particulars" of the claim to expansion.³⁶Re-filings are covered by a separate provision, whereby a country may re-file a claim within

Id. a "reasonable time."³⁷Consequently, Russia's future claim, although likely to fall outside the ten-year limit imposed, will not be barred from submission.

However, subsequent rules adopted by the CLCS have slightly altered the ten-year time limit. Under the new rules, states that ratified the treaty before May 13, 1999, were given a uniform deadline for submissions of May 13,

2009.³⁸For example, Brazil, having ratified UNCLOS on Dec. 22, 1988,³⁹ was not barred from submitting a claim in May 2004, over six years after the expiration of its ten-year period.⁴⁰On the other hand, since the United States has not yet ratified the treaty, its ten-year period has yet to begin.

C. The U.N. Commission on the Limits of the Continental Shelf

Assuming a country files its submission within the appropriate time limit, if it seeks to extend its continental shelf under the provisions of Article 76, it must submit a very specific request to the CLCS.⁴¹

The CLCS derives its authority from Annex II, Article 1 of UNCLOS, which, in addition to creating the CLCS, also lays out that body's composition.⁴²The enabling provisions state that the CLCS shall consist of 21 members, each elected by the states parties to the convention.⁴³Each member must be an expert in the field of geophysics, geology, or hydrography.⁴⁴

Members are elected for five-year terms,⁴⁵which means that the Commission that decided Russia's 2001 claim will not have the same composition as the one that decides its future submission. In the years since Russia's 2001 claim was dismissed, five members of the Commission-the representatives from Zambia, New Zealand, Germany, France, and Egypt-have been replaced by five new members from Australia, Togo, Romania...