The continental shelf beyond 200 nautical miles: the work of the Commission on the limits of the continental shelf and the Arctic.

• Author: Jares, Vladimir
• Position: Company overview

ABSTRACT

As policymakers, academia, and the media have paid increased attention to the Arctic region, there is more evidence of a certain lack of knowledge concerning the applicable international law.

The United Nations Convention on the Law of the Sea of December 10, 1982--adopted in 1982 and in force since November 16, 1994--provides both a legal framework within which all activities in oceans and seas must be carried out and, as far as the seabed of the Arctic Ocean international law is concerned, answers to questions related to its legal status and applicable regulations.

If a coastal State wishes to delineate its continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, it has to submit relevant data and information to the Commission on the Limits of the Continental Shelf, an expert body established under the Convention. The Commission issues recommendations, and the limits based on the recommendations of that Commission are final and binding.

In the Arctic region, only two coastal States so far have made submissions to the Commission--the Russian Federation and Norway. The Commission issued recommendations to both; in the case of the Central Arctic Ocean, it recommended that the Russian Federation make a revised submission.

Due to the fact that the other three coastal States of the Arctic Ocean--Canada,

Denmark, and the United States--have yet to make their submissions (the United States is still not party to the Convention), and taking into account the workload of the Commission, the delineation of the continental shelf beyond 200 nautical miles and related delimitation of maritime boundaries between States will take many years to finalize.

TABLE OF CONTENTS I. INTRODUCTION II. BASELINES AND MARITIME ZONES III. CONTINENTAL SHELF BEYOND 200M IV. THE COMMISSION ON THE LIMITS OF THE CONTINENTAL SHELF AND ITS FUNCTIONS A. The Commission V. THE ARCTIC REGION, ARCTIC OCEAN, AND ARCTIC COUNCIL VI. SUBMISSIONS TO THE COMMISSION IN RELATION TO THE ARCTIC OCEAN A. Submission by the Russian Federation B. Submission by Norway VII. SUMMARY OF THE SITUATION IN RELATION TO THE ARCTIC SEABED I. INTRODUCTION

In recent years, for reasons that are by now well known, the international community's attention has turned to the Arctic region. As policymakers, academia, and the media have paid increased attention to the region, considerable concerns have been raised about the perceived lack of a legal regime for governance in the Arctic. The combination of environmental awareness and sincere desire to prevent unregulated uses of the Arctic resources and ocean space, together with a lack of adequate knowledge concerning the applicable international law, seem to have especially fueled these concerns.

Thus, the ongoing debate about the legal status of the Arctic Ocean, including the seas of the region and its seabed, became part of the broader equation of issues, specific interests, and quests for solutions to present and potential future problems.

There is an important body of applicable international law that governs the waters surrounding the land territory of coastal States of the Arctic Ocean. As a matter of fact, as far as the seabed the Arctic Ocean international law is concerned, the law of the sea provides answers to most, if not all, questions related to its legal status and applicable regulations.

The most important international instrument, the United Nations Convention on the Law of the Sea of December 10, 1982 (UNCLOS or the Convention), (1) adopted in 1982 and in force since November 16, 1994, provides a "legal framework within which all activities in oceans and seas must be carried out." (2) Indeed, one might argue that since December 1982, the Convention has been the ultimate source of the law of the sea. This instrument is one of the most important (and, at the same time, one of the most underappreciated) international treaties ever negotiated under the auspices of the United Nations. Opened for signature on December 10, 1982, it was signed by 159 States by the end of the signing period (3) and entered into force on November 16, 1994. (4) Currently, (5) this instrument is binding for 157 States and the European Community. (6) Many States that are not parties to the Convention accept it as reflecting customary international law applicable to oceans. (7)

The Convention's 320 articles and nine annexes regulate States' behavior in the world's oceans; define maritime zones and provide rules for the delineation of their outer limits; assign sovereignty, sovereign rights, and jurisdiction in these zones; specify other rights and obligations of States; provide tools for the settlement of disputes; and specify the mandate for three distinct international bodies established by the Convention, namely the International Tribunal for the Law of the Sea (the Tribunal or ITLOS), the International Seabed Authority (the Authority or ISA), and the Commission on the Limits of the Continental Shelf (the Commission or CLCS). (8)

It should be noted that, with respect to ocean spaces and maritime zones under national jurisdiction, the Convention is quite specific and contains relatively detailed provisions as to the extent of rights and obligations of both coastal and other States. In some other respects--such as the protection and preservation of marine environment, prevention of pollution, and regulation of marine scientific research--the Convention serves rather as a framework document, providing a basic set of rules that need to be, and in many cases have been, further developed and refined by other relevant international instruments, rules, and standards.

It should be emphasized that the Convention approaches the oceans from an integrated viewpoint and attempts to balance--in a carefully designed package--various major interests, such as those of coastal States in the exploration and exploitation of marine resources off their coastlines as well as the preservation of traditional freedoms of the seas like the freedom of navigation. (9)

The General Assembly of the United Nations annually underscores the Convention's important place in the system of international law. When considering matters related to oceans and the law of the sea, the Assembly emphasizes "the universal and unified character of the Convention" and reaffirms that "the Convention sets out the legal framework within which all activities in the oceans and seas must be carried out." (10)

From the very outset, it is important to reemphasize that, from a legal standpoint, the Arctic Oceans and the adjacent seas are fully subject to the provisions of the Convention.

As the five coastal States of the Arctic Ocean stated in the Ilulissat Declaration:

By virtue of their sovereignty, sovereign rights[,] and jurisdiction in large areas of the Arctic Ocean[,] the five coastal States are in a unique position to address these possibilities and challenges. In this regard, we recall that an extensive international legal framework applies to the Arctic Ocean.... Notably, the law of the sea provides for important rights and obligations concerning the delineation of the outer limits of the continental shelf, the protection of the marine environment, including ice-covered areas, freedom of navigation, marine scientific research, and other uses of the sea. We remain committed to this legal framework and to the orderly settlement of any possible overlapping claims. This framework provides a solid foundation for responsible management by the five coastal States and other users of this Ocean through national implementation and application of relevant provisions. We therefore see no need to develop a new comprehensive international legal regime to govern the Arctic Ocean. We will keep abreast of the developments in the Arctic Ocean and continue to implement appropriate measures. (11) Indeed, it appears that the most important task that the coastal States of the region face is the implementation of the Convention's provisions, as developed in some regards by a number of other international instruments. This being said, the implementation of the Convention in the Arctic is not only an issue for the coastal States. Other States have their own share of rights and responsibilities under the Convention; thus, a better understanding of the Convention is critical for all parties that may potentially be implicated.

This Article focuses on only one aspect of the implementation of the regime set up by the Convention in the Arctic Ocean--namely, the process of delineating the continental shelf beyond 200 nautical miles and the related work of the Commission on the Limits of the Continental Shelf.

2. BASELINES AND MARITIME ZONES

   It may be useful to begin by outlining, albeit briefly, the regime of maritime zones under the Convention.

   The Convention provides for the following maritime zones under national jurisdiction: internal waters, archipelagic waters, (12) the territorial sea, the contiguous zone, the exclusive economic zone, and the continental shelf. (13) One of the notable features of the Convention is that it establishes the maximum breadth for the zones as measured from the baselines. (14) In each case, the Convention's provisions also contain very specific packages of rights and obligations for both coastal States and other States, thus settling some of the most complex law of the sea matters previously faced by the international community.

   It also may be useful to note that the existence of some maritime zones--the territorial sea or the continental shelf--is implied. In the case of the territorial sea, it is an ipso facto result of a State being a coastal one; in the case of the continental shelf, it is by virtue of article 77, paragraph 3, of the Convention, which states: "The rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation."...