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Assessing US Extended Continental Shelf (ECS) Claims In The Arctic – Analysis

By Bipandeep Sharma In December 2023, the US Department of State in a press release highlighted its new extended continental shelf (ECS) claims in the Arctic and Bering Sea region.1 The US press release noted that these new claims are on the basis of scientific data and research conducted by the US National Oceanic and Atmospheric Administration (NOAA) and U.S. Geological Survey (USGS). It further noted that the US is making these claims in accordance with the principles of ‘customary international law’ and as per the provisions of United Nations Convention on the Law of the Sea (UNCLOS) and in accordance with the guidelines of the Commission on the Limits of the Continental Shelf (CLCS). The US move drew mixed reactions from the global legal and polar experts some of which questioned the legitimacy of such US move while others supported the US position.  UNCLOS and United States UNCLOS, since coming into force in 1994, has remained a credible international mechanism for establishing legal framework for maritime jurisdictional claims of the states. Article 3 of the UNCLOS provides coastal states with12 nautical miles of ‘territorial waters’ from their baselines. A coastal State enjoys full sovereignty in its territorial waters that includes state’s sovereignty over its territorial sea, the airspace above, and the seabed and subsoil beneath it.2 Article 57 and Article 58 of the UNCLOS provide states with 200 nautical miles of exclusive economic zones (EEZ) that extends seaward from its baseline.3  In their designated EEZ, states have ssovereign rights over exploration, exploitation, conservation and management of natural resources, they can establish artificial islands, installations and structures, undertake scientific research and enable protection and preservation of marine environment.  In addition to these, a signatory state as per Article 76 of the UNCLOS can even make claims for an area beyond its designated EEZ if that signatory state becomes successful in justifying through scientific and technical data before Commission on the Limits of the Continental Shelf (CLCS) that the area beyond its designated EEZ is an extension of its continental shelf. CLCS, on the basis of submitted scientific data by a claimant state, makes its recommendations either in favour or against state’s claims. All signatory states can make their claims for extended continental shelf before CLCS only within 10 years of their ratification of the UNCLOS treaty.4 To date, the European Union along with 168 countries have signed and ratified the UNCLOS while the United States remains a non-signatory to UNCLOS.   Extended territorial claims in the Arctic In the Arctic region, all the Arctic states except the United States are signatory to the UNCLOS. In the past, most issues of maritime borders between the Arctic states have been bilaterally resolved (Russia–Norway, Denmark–Canada) while some of these still remain unresolved but are being managed though consultations (Canada–United States). In so far as the issues of ECS are concerned, all the UNCLOS signatory states after undertaking rigorous scientific research have made their submission for ECS to CLCS for its review and approval.5 CLCS after undertaking comprehensive assessments of the scientific data submitted by the states, in some cases have made its recommendations in favour of those states, while in others it has recommended the states to undertake further research to justify their claims before the commission.  The latest positive recommendations from CLCS for extended continental shelf claims in the Arctic on the basis of scientific data submitted, came in favour of Russia in 2023. The commission however has yet to make assessments/recommendations on the submissions made by Canada and Denmark (Greenland). Despite the slow and time-consuming process involved in analysing states’ submitted data regarding their claims, CLCS has remained credible mechanism for enabling rule-based international order to address the issue of ECS. Implications of US unilateral claims The US unilateral act of claiming ECS in the Arctic and Bering Sea in 2023 raises several challenges that could have potential future implications. First, US actions of unilaterally declaring areas of ECS challenges the mandates of UNCLOS and CLCS itself and questions the legitimacy of these established mechanisms. The US highlights that it has made its claims on ECS on the basis of extensive research and collection of high-quality marine geophysical data undertaken in more than two decades. Till date, however, there are no assessments by any legitimate and unbiased international authority regarding the validity of US data and research undertaken on the basis of which US has declared its claims of ECS. Presently, all the US scientific research and data collected by its state agencies remain classified. The US in the future might submit its data to CLCS for review of its ECS claims even without being signatory state to UNCLOS. There are also proponents within US senate that call for US becoming a signatory state to UNCLOS. Secondly, maritime borders between the US and Russia in Bering Sea to High North remains delimitated by the 1990 Baker-Shevardnadze agreement line which was concluded by the then US Secretary of State James Baker and Soviet Union Minister of Foreign Affairs Eduard Shevardnadze.6 The US soon after the conclusion of this agreement ratified it in its Senate, but to date this agreement remains non-ratified in the Russian Duma. Since 1990, this agreement remains only provisionally abided by Moscow as its maritime boundary with United States in the Arctic. In the past, there have been debates in the Russian Duma with some proponents calling for denouncing the Baker-Shevardnadze agreement.7 Such proponents have been of the view that this agreement has been poorly negotiated and that it has greatly undermined Russia’s interest in the region.8   Though new US ECS claims remains well within the limits of this Baker-Shevardnadze agreement line, there remain possibilities that such a move could provoke Russia’s response in anticipation of any further US intentions of extended territorial claims in the region. Such an act could lead to further escalated strategic and military complications in the region.   Third, the new area that has been claimed by US in the Bering Sea is an area known as the ‘Donut hole’ (Figure 1). This maritime space earlier regarded as ‘international waters’ remains important due to its vastness in terms of reserves of Pollock fisheries and potential estimates of some of the most critical minerals on its deep seabed. Existing US estimates also highlights the presence of some 24 billion barrels of oil and some 126 trillion cubic feet of natural gas in the Bering and Chukchi Sea region.9 Currently there is no ongoing deep seabed exploitation activity in this region, but there remains clear indication among US policy-makers regarding harnessing the potential of such critical minerals in the future.10 Any US development in this region on the basis of its unilateral claims could lead to complex geopolitical situations between states in the Arctic.  Figure 1. US–Russia Maritime Boundary as per 1990 Baker-Shevardnadze agreement and US Extended Continental Shelf (ECS) Claims Fourth, despite Canada–US strong bilateral relationship and multiple mutual cooperation mechanisms, both the states remain divergent on their positions when it comes to delimitation of their maritime borders and overlapping areas of ECS in the Arctic. Both these states even maintain opposing positions regarding the sovereignty and jurisdictional control over the Norther Western Passage, which is viewed by Canada as its internal waters whereas US calls it as ‘international waters’. The new US ECS in the Arctic region overlaps largely the Canadian claims of its ECS for which Canada has already made submissions to CLCS in 2019 (with addendum in December 2022).11 The complexity between US–Canada ECS in the Arctic could further exaggerate if Canada’s claims get recognition/approval from CLCS on the basis of its submitted scientific data. Under such circumstances, the ‘Canadian Arctic nationalism’ and the issue of Canadian Arctic sovereignty in Canada’s domestic political spheres would leave little space for any ruling government in Canada to compromise on any of its ECS claims with United States in the Arctic. Finally, the proponents who support US claims of ECS by calling Article 76 of UNCLOS as ‘customary international law’ need critical re-thinking. Such selective approaches to UNCLOS and actions of similar selective nature on ground that best suits US interest, dilutes the established legitimacy of UNCLOS. US action further sets wrong and dangerous global precedence as this act remains keenly noted by states in other parts of the world. US action and any similar unilateral claim of ECS by state/s in future could create complex situations for established rule-based orders in international maritime spaces. Views expressed are of the author and do not necessarily reflect the views of the Manohar Parrikar IDSA or of the Government of India. About the author: Mr Bipandeep Sharma is a Research Analyst at the Manohar Parrikar Institute for Defence Studies and Analyses, New Delhi. Source: This article was published by Manohar Parrikar IDSA 1.“The Outer Limits of the Extended Continental Shelf of the United States of America”, US Department of State, 2023. 2.“United Nations Convention on the Law of the Sea”, Article 3, Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, United Nations, 10 December 1982. 3.Ibid., Article 57 and Article 58. 4.Ibid., Article 4. 5.“Commission on the Limits of the Continental Shelf Pursuant to Article 76, Paragraph 8, of the United Nations Convention on the Law of the Sea of 10 December 1982”, Division for Ocean Affairs and the Law of the Sea, United Nations. 6.“Agreement between the United States of America and the Union of Soviet Socialist Republics on the Maritime Boundary”, Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, United Nations, 1 June 1990. 7.“Foreign Minister Sergey Lavrov’s Remarks and Answers to Questions during Government Hour at the State Duma of the Federal Assembly”, The Ministry of Foreign Affairs of the Russian Federation, Moscow, 14 February 2024. 8.Interfax, “The Duma Allowed the Denunciation of the Shevardnadze-Baker Agreement on the Bering Strait”, 21 February 2024. 9.Vlad M. Kaczynski, “US-Russian Bering Sea Marine Border Dispute: Conflict over Strategic Assets, Fisheries and Energy Resources”, Russian Analytical Digest, Center for Security Studies, Zürich, 1 May 2007. 10.Evan T. Bloom, “Five Takeaways from the US Continental Shelf Announcement”, The Wilson Centre, 3 January 2024. 11.  “Addendum to the Partial Submission of Canada to the Commission on the Limits of the Continental Shelf Regarding Its Continental Shelf in the Arctic Ocean”, Government of Canada, 2022.