The Commission on the Limits of the Continental Shelf considers the data and other material submitted by coastal States to make final and binding recommendations to coastal States on matters regarding the establishment of the outer limits.
Other Benefits. We should also join the Convention now to steer its implementation. The Convention’s institutions are up and running, and we – the country with the most to gain or lose on law of the sea issues – are sitting on the sidelines. As I mentioned, the Commission on the Limits of the Continental Shelf has received submissions from over 40 countries without the participation of a U.S. commissioner. Recommendations made in that body could create precedents, positive and negative, on the future outer limit of the U.S. shelf. We need to be on the inside to protect and advance our interests. Moreover, in fora outside the Convention, the provisions of the Convention are also being actively applied. Only as a party can we exert the level of influence that reflects our status as the world’s foremost maritime power.
Indeed, after Russia made its 2001 claim, five nations (Canada, Denmark, Japan, Norway, and the United States) submitted objections to the CLCS. The U.S. objection identified “major flaws” in the Russian claim, including an objection concerning whether the Alpha-Mendeleev and Lomonosov mid-ocean ridges in the central Arctic are a natural component of Russia’s continental shelf. However, the U.S. comments also noted that “the Russian submission utilizes the boundary embodied” in the 1990 U.S.–USSR treaty and that the “use of that boundary is consistent with the mutual interests of Russia and the United States in stability of expectations.”36
The CLCS agreed with the U.S. comments, stating that the U.S.– USSR boundary demarcated in 1990 reflects the boundary of the U.S.–Russia continental shelf in the Bering Sea. The CLCS recom- mended that Russia “transmit to the Commission the charts and coordinates of the delimitation lines as they would represent the outer limits of the continental shelf of the Russian Federation extended beyond 200 nautical miles in ... the Bering Sea.”37
In June 2002, in light of the objections to Russia’s ECS claim, the CLCS recommended to the Russians that they provide a “revised submission” on Russia’s claims in the central Arctic.38 Russia reportedly will make an amended submission to the CLCS at some point in the future. In addition, Canada and Russia recently signaled that they will cooperate with each other to demarcate their respective ECS boundaries in the Arctic.39
The U.S. objections to the Russian ECS submission and the CLCS’s subsequent rejection of the Russian claim call into question the repeated assertions by UNCLOS proponents that, absent U.S. accession to the convention, the United States is a helpless bystander in demarcation of Arctic ECS boundaries.40 In fact, the United States has raised objections to the CLCS on other ECS submissions, such as those made by Australia and Brazil.41
Despite UNCLOS's mandate that the CLCS examine a nation's claim to a physically connected continental shelf, problems arise with the Commission's structure. Sessions of the CLCS are secret."' The only nation that is privy to the CLCS deliberations is the one that submitted the scientific data purporting to support an extended continental shelf claim.20 Because the CLCS "considers itself bound by States' requests to keep their submissions information confidential,"21 the executive summaries of the CLCS sessions do not contain any details. Moreover, the CLCS process itself seems to be the only check on possible abuse by a nation making a fraudulent or erroneous extended continental shelf claim. Written interventions by nations that are not opposite from or adjacent to a submitting state are not allowed.
Gaining exclusive sovereign rights over the full potential U.S. Arctic extended continental shelf will prove difficult, however, due to the close proximity among the United States, Russia, and Canada and the potential for overlapping claims to extended continental shelves. The Russian Federation was the first UNCLOS party to submit an extended continental shelf claim to the CLCS.97 The CLCS rejected Russia’s initial 2001 submission but permitted it to revise and resubmit its claim. Russia anticipates submitting its revised claim for its extended shelf in the Arctic by the end of the year.98 Denmark, Iceland, and Norway also submitted claims to the CLCS99 and Canada must do so by December 2013.100 This will leave the United States as the only Arctic nation that has not formally claimed the outer limits of an extended continental shelf. Moreover, if Russia accepts the commission’s recommendations, Russia’s extended continental shelf boundaries are final and binding (although it is not clear who is so bound). If the United States accedes and eventually perfects a claim to the outer limit of its extended shelf with the CLCS, there is a chance that its extended continental shelf will overlap with Russia’s. UNCLOS allows for two (or more) legitimate outer limit claims but leaves it to the parties to agree to terms that split the overlapping extended continental shelf between them. The United States has provided observations on submissions by two other states, but, as a non-party, it cannot submit a claim under Article 76.101
Another potential avenue could be to just let the problem “work itself out”. Consider the following: At the time of the USGS CARA study, geologists believed that most of the energy resources available for exploitation reside on the continental ￼shelf.128 With four of the five coastal states as signatories of UNCLOS, a solution to the ￼Arctic “problem” could be as easy as letting the CLCS adjudicate the claims in an ￼orderly manner.129 If the CLCS could settle the disputed territory, then the Arctic ￼conflicts would probably evaporate. Unfortunately, there may be little likelihood of this ￼occurring. Given the snail's pace at which the CLCS resolves claims, the impending ￼political and economic incentives for asserting a national presence in the Arctic, and the ￼possibility that CLCS judgments may be unenforceable under customary international ￼law, it is unlikely that such a course is a legally viable one. Furthermore, the USGS ￼CARA study did not include in its survey “unconventional” sources of energy, one of ￼￼￼which was oil/gas derived from shale.130 Perhaps, the Arctic may contain more energy ￼resources than anyone may currently believe, and, in such a case, no CLCS adjudication ￼would be likely to work in the face of such a stark new reality.
Given the tenor of events following Russia’s flag planting stunt, the threat of nonpeaceful disputes over Arctic sovereignty is not implausible.224 A week after Russia’s submarine dive, Canadian Prime Minister Stephen Harper announced that Canada would construct two new military facilities in the Arctic, build six to eight navy patrol ships to guard the area, and increase its military forces by 900 troops in order to protect Canada’s asserted sovereignty over the Arctic and its natural resources.225 Russian bombers appeared over the Arctic a few days later, for the first time since the Cold War.226 Harper, flanked by his Defense Minister and Canadian troops, said in a speech at the site of one of the future facilities that “Canada’s new government understands that the first principle of Arctic sovereignty is: Use it or lose it.”227 As troops, ships, and bombers circle the Arctic, this fragile region faces yet another threat: war.
The Commission has a limited role in the success or failure of the coastal States’ Article 76 claims. It is powerless to stop a coastal State whose claim it has denied from nevertheless behaving as if the claim had been approved. For example, if the Commission rejects Russia’s Article 76 claim, Russia could nevertheless continue to claim Alpha-Mendeleev and Lomonosov Ridges as part of its continental shelf, and could develop oil and gas in those areas of the Arctic. If Canada disagrees with Russia’s behavior—as it certainly would—it is not clear what peaceful means it has to make its dispute. Thus, the specter of armed conflict—for which Russia and Canada appear to be preparing—looms over an already dire situation.
Even if U.S. had a seat on CLCS, they would have limited ability to influence the direction or decisions of the CLCS as members are required to act independently from their governments and in secrecy.
- Should not overstate the impact that US will be able to have with a full seat on CLCS
- CLCS process flawed by its secretive nature that prevents thorough examination of claims
- Members of CLCS are bound by agreement not to act as agent of their respective governments, undermining "seat at the table" argument
- By ratifying UNCLOS, U.S. could still be outvoted in CLCS decisions but then be obligated to abide by the ruling
The United States cannot currently participate in the Commission on the Limits of the Continental Shelf, which oversees ocean delineation on the outer limits of the extended continental shelf (outer continental shelf). Even though it is collecting scientific evidence to support eventual claims off its Atlantic, Gulf, and Alaskan coasts, the United States, without becoming party to the convention, has no standing in the CLCS.
- Assertions of legal rights to arctic resources have dubious legal standing while us remains outside of UNCLOS
- US will have no capacity to challenge CLCS claims unless it is a full member of UNCLOS
- Seat on CLCS council valuable in that it allows US to take part in discussions and engage other participants
- By remaining outside of convention, US is unable to engage in disputes over Arctic claims within framework
- ... and 5 more quote(s)