Canadian government scientists estimate that the country’s continental shelf extension in the Arctic could be three-quarters of a million square kilometres. Not surprisingly, the delineation of the continental shelf extension— the continental shelf beyond the usual limit of 200 nautical miles— is attracting increasing public attention. Media articles correctly point out the enormous resource potential of the area; however, all too often the coverage conveys erroneous perceptions about the process by which title is being established. According to commonly held assumptions, Canada, the United States, Russia and Denmark (on behalf of Greenland) are engaged in a highly competitive scramble to stake claims for extensions to their Arctic continental shelves beyond 200 nautical miles. In this struggle, Canada is frequently seen to be trailing behind, as other countries move more quickly and effectively to stake claims to resources that could otherwise belong to Canada. Such perceptions reflect two prevalent myths. The first portrays the Arctic as a lawless frontier— a reincarnation of the Wild West. According to the second myth, the process for establishing title to the continental shelf beyond 200 nautical miles is fraught with competition and even conflict. Each myth seriously distorts reality.
Many media articles and some academic writings convey the idea that title to the continental shelf beyond 200 nautical miles will be determined by a race in which the most proactive and assertive countries stake the best and largest claims. Three overlapping sets of arguments dispel this myth. First, there is an international legal regime that governs the continental shelf beyond 200 nautical miles. Second, Canada and other Arctic countries already have sovereign rights over the continental shelf beyond 200 miles; thus, there is no need to stake claims. Third, not only is an international regime in place, but Arctic states are acting in accordance with its legal norms. Each set of arguments is discussed below.
The rules and regulations governing the world’s oceans are specified in the United Nations Convention on the Law of the Sea (the LOS Convention). According to the convention, all coastal states have sovereign rights to the resources in the water column and seabed within 200 nautical miles from shore. The LOS Convention 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 continental shelf extension, the coastal state has sovereign rights to explore and exploit “the non-living resources of the seabed and subsoil” (article 77); hence, the interests at stake may be considerable.
The LOS Convention specifies enabling criteria for ascertaining if the continental shelf protrudes beyond 200 nautical miles and constraints to the amount of seabed beyond 200 nautical miles over which the coastal state 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 formulas, the coastal state is required to make a submission to the Commission on the Limits of the Continental Shelf. The commission consists of 21 individuals elected by state parties to the LOS Convention 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 continental shelf extensions in conformity with existing international legal norms and makes recommendations to coastal states on such matters. The LOS Convention stipulates, “The limits of the shelf established by a coastal State on the basis of these recommendations shall be final and binding.” Thus it is the coastal state— not the commission— that establishes the outer limits of the continental shelf.
The international regime specifies time constraints for making submissions to the commission. Countries that ratified the LOS Convention prior to 1999, such as Russia, have until 2009, while 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. Although the United States is not a party to the LOS Convention, the Bush administration has urgently requested that the Senate approve accession so the United States can present its submission to the commission.
The LOS Convention 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.”
Thus, Russia’s planting a flag on the Arctic seabed beneath the North Pole last August 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 LOS Convention’s criteria for an extension or it does not.
Canada, Denmark and Russia are parties to the LOS Convention; hence they are legally bound by it. Although the United States is not a party, it, like the other Arctic states, is acting in the belief that, in accordance with the norms enshrined in the LOS Convention, it is entitled to the prolongation of its continental shelf. As discussed later, all four countries are currently conducting scientific studies in the Arctic in accordance with the provisions in the LOS Convention. Russia presented its submission in 2001 and received comments from the commission. As the commission found the Russian information insufficient to support its delineation of its continental shelf, Russian scientists are conducting further research in preparation for a resubmission. A submission by one state does not affect the rights of other coastal states. Thus, Russia’s making a submission before Canada does not jeopardize the latter’s legal rights. In their 2007 joint statement on economic cooperation, Russia and Canada reaffirmed their “commitment to international law, including the orderly and legally-established process outlined” in the LOS Convention.
In its 1996 Oceans Act, Canada outlined principles for defining its continental shelf that are in conformity with international law. Canada is now in the third year of collecting data, and it plans to continue with research in both the eastern and western Arctic in 2009. Denmark is actively involved in charting the Arctic seabed beyond 200 nautical miles, both individually and in joint operations with Canada.
In his 2004 testimony before the US Senate Foreign Relations Committee, US Deputy Secretary of State John Negroponte stressed the advantages of the LOS Convention for his country. Similar views were expressed in the US Geological Survey’s January 2008 report on the law of the sea, which affirmed the importance to the US national interest of making a submission to the commission, in accordance with the LOS Convention.
In short, the Arctic is not a wild frontier in which countries are engaged in a zero-sum struggle to grab as much of the Arctic seabed as possible before another state claims the spoils for itself. Not only are there rules and procedures to govern the continental shelf beyond 200 nautical miles, but they are guiding state behaviour. There is no need to stake claims, because the rights of coastal states already exist in law. Canada and other Arctic countries are working diligently to meet the timetable specified under international law— actions that recognize and bolster the legitimacy of the existing legal norms and the commission.
Numerous media articles describe activity pertaining to Arctic continental shelf extensions as a Cold War and a rush for resources, thereby conveying the idea of conflict and competition. Yet the process of establishing the limits of the continental shelves in the Arctic has been characterized much more by cooperation than by competition.
Scientists have a long history of cooperating in the Arctic, and defining the continental shelf has been largely a scientific enterprise. Arctic countries recognize their mutual interest in cooperating. Collecting the data required for the submissions is expensive and time consuming— factors militating in favour of cooperative ventures. Furthermore, there are very few icebreakers in the world capable of carv i n g a path through thick Arctic ice, which compels countries to work together.
In addition to the practical advantages of sharing the costs and scarce resources needed to conduct the required scientific research, cooperative ventures offer other benefits. In the course of working together, officials from different countries can share information and learn from each other, which will enhance the quality of their respective submissions.
Since 2005, Canada has participated in collaborative research projects with Denmark to collect data on the seabed north of Greenland and Ellesmere Island. Not only have scientists from the two countries collected data together, but they have also interpreted them jointly; hence they now have a single data set on which they both agree. Having bilateral agreement on a data set makes the data more credible. As the commission’s experts will be reviewing the submissions in light of accepted scientific knowledge, it is advantageous for the submitting countries when their research and analysis is accepted by the international scientific community. Thus, Canadian and Danish scientists are submitting their data and their interpretation of them in joint papers to refereed journals. Having their scientific findings peer reviewed and accepted prior to each country’s submission should enhance the prospects of receiving positive reviews.
This summer, Canada and the United States are participating in their first joint survey in the Beaufort Sea. This bilateral venture is mapping an area further north than those covered in previous unilateral research.
In November 2007, Canadian, Danish and Russian officials met in St. Petersburg to discuss scientific and technical matters pertaining to the Arctic continental shelf. At this meeting, the Russian scientists shared the charts, maps and data of their 2001 submission to the commission. This sharing gave Canadian and Danish officials access to the details and analysis that would not otherwise be available to them, as the specifics of submissions to the commission are confidential.
Canadian and Russian scientists separately have done similar research on the Mendeleev and Lomonosov Ridges from their respective sides. Scientists from the two countries have agreed to jointly review their data on the Lomonosov Ridge when they meet later in 2008. This collaboration will make it easier to determine areas of agreement and disagreement and to identify where more data are required. Thereafter, they may decide to organize joint ventures to fill the gaps in the existing knowledge.
Overall, Canada’s relations with Denmark, the United States and Russia reflect a high degree of cooperation in the preparation of their respective submissions. Cooperation is also evident in the ongoing communications between the commission and countries preparing their submissions, and this cooperation benefits all parties. As evidence of state support for the commission, Canada, the United States and 15 other countries sponsored a resolution in the United Nations General Assembly in December 2007 that reaffirmed the importance of the commission’s work, encouraged states to make their submissions on time and empathized the need to provide the commission with the resources necess a ry to function effectively. The adoption of this resolution demonstrated the importance member states accord the issue, and was a formal acknowledgement of the need to support the commission and to act in conformity with the LOS Convention.
This is not to suggest that there will not be overlapping boundaries between extended continental shelves or that their resolution will necessarily be free of conflict. The commission is a technical body that is 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.” Responsibility for resolving such disputes rests with the states involved. Past experience has shown that resolving maritime boundary disputes can be difficult and time consuming. For example, Canadian and US negotiators worked for 10 years to reach an agreement on fishing rights in the Gulf of Maine, only to have the settlement rejected by the US Senate. The case was then referred to the International Court of Justice, which issued its judgment in 1984. The Canada-United States boundary dispute in the Beaufort Sea has dragged on for years, and it is definitely an irritant in bilateral relations. As these examples indicate, resolving disputes over maritime boundaries can be tough and protracted; however, in each case, countries have pursued legally accepted channels for addressing the conflicts rather than resorting to unilateral grabs for jurisdiction. International law offers a variety of mechanisms for resolving maritime boundary disputes, including bilateral negotiations, arbitration, mediation and taking a case to the Law of the Sea Tribunal or the International Court of Justice. These legal channels have been used in the past, and there is no reason to think they will not be used in the future.
While myths about Canada losing the race to stake claims to the Arctic shelf beyond 200 nautical miles may generate grave concerns about Canada’s prospects in the Arctic, the evidence supports more positive conclusions. There is an international legal regime in place, and its rules are being observed by Canada, Denmark, Russia and the United States. These Arctic countries already have sovereign rights over the continental shelf beyond 200 miles that do not depend on occupation or proclamation. The preparation of the submissions is characterized much more by cooperation than by competition or conflict. There are many climatic challenges to conducting research in the harsh Arctic climate, including ice, fog and winter darkness. Nonetheless Canada’s scientific research program is making good progress, and Canadian officials are determined to present a high-quality submission to the commission by the 2013 deadline.
Adapted from “Canada and Arctic Politics: The Continental Shelf Extension,” Ocean Development and International Law (forthcoming).
