The limits to the law of the sea
10.7 > On 1 August 2007, Russian explorers captured the attention of the world’s media when they planted their national flag on the seafloor in the Arctic Ocean.
Underwater land grab
Most experts agree that climate change is causing the Arctic ice cap to melt faster. From an economic perspective, this is a very interesting development: firstly, because it could open up alternative and much shorter shipping routes during the summer months, such as the Northwest Passage and the Northern Sea Route, thus benefiting international trade, and secondly, because it will make the oil and gas deposits thought to lie under the Arctic seabed much easier to access. With the Arctic littoral states now vying for control over these natural resources, the public was given an initial taste of things to come on 1 August 2007, when Russia – using manned mini-submarines – planted a Russian flag on the seafloor at the North Pole and symbolically proclaimed the area concerned to be Russian territory.
Besides Russia, the other Arctic littoral states – Denmark (Greenland), Canada, Norway and the United States – have also launched expeditions to prove that areas of the ocean floor are submerged prolongations of their territories, prompting media speculation about the possible outbreak of an “ice-cold war” in the polar north.
Bickering over borders
But to what extent do the Arctic territories form part of the coastal states’ continental shelf? This is still an un-
resolved question. If the answer is affirmative, the United Nations Convention on the Law of the Sea (UNCLOS) grants the Arctic state on whose continental shelf they are located the exclusive rights to exploit any resources potentially existing there. These resources would, in consequence, not be subject to the rules applicable to the common heritage of mankind, which are administered by the International Seabed Authority. The Arctic states are currently attempting to prove that geologically, their continental shelf extends for more than 200 nautical miles out into the Arctic Ocean. As explained above, in this case too, the maximum outer limit may not exceed 350 nautical miles from the baseline or, alternatively, 100 nautical miles seawards from the 2500 metre isobath. In the Arctic, the – permissible – combination of these two methods would offer Russia, in particular, the prospect of extending its continental shelf to the maximum possible extent. There are just two relatively small areas (“donut holes”) in the Arctic which could not be claimed by any littoral state: the first is the Gakkel Ridge, an oceanic ridge which lacks a “natural” connection with the continental margins, while the second area is circumscribed by segments of the 2500 metre isobaths.
- 10.8 > Prolongation of the continental shelf in the Arctic. The Gakkel Ridge is shown in red on the right. The area marked in red on the left cannot be claimed by any littoral state as it is circumscribed by the 2500 metre sobath. The Lomonosov Ridge lies to the left of the Gakkel Ridge between two 2500 metre isobaths.
Oceanic ridges are formed when underwater tectonic plates drift apart and magma rises from the Earth’s interior at this fracture point. Over time, this creates a ridge which may reach a height of several thousand metres. Oceanic ridges are generally located mid-ocean, some distance away from the continental shelf areas and continental slopes.
- The situation in the Arctic is further complicated by the fact that an exception to the rule on measuring the outer limit of the continental shelf applies here. UNCLOS makes a distinction between “oceanic ridges”, which are not directly connected to the continental margins, “submarine ridges”, and “submarine elevations”. On submarine ridges, UNCLOS states that the outer limit of the continental shelf shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured. In other words, only the 350 nautical mile cut-off line applies to submarine ridges: the outer limit of the continental shelf cannot be measured according to the 2500 metre isobath, which in the case of submarine ridges is, by its very nature, a more advantageous method of calculation. If the feature concerned is merely a submarine elevation, however, this restriction to the 350 nautical mile method does not apply. This is because unlike submarine elevations, submarine ridges generally consist of volcanic rock and are hence formed from a different material than the continental shelf.
Although connected, they therefore differ in origin. Submarine elevations, by contrast, are similar in composition to the continental margin. In other words, the elevation and the continental shelf are geologically identical.
So to determine whether the structural features of the Arctic seabed are submarine ridges or elevations, a geological analysis of the rock must first be carried out. And this is exactly where the problem lies in the Arctic: it has numerous submarine mountain ranges. According to prevailing opinion, all of them – with the exception of the Gakkel Ridge – are connected in some way with the continental margins and could thus be regarded as integral parts of the continental shelf of one or more littoral states. Their geological composition will therefore be the crucial factor in determining which of UNCLOS’s provisions ultimately applies. Russia, for example, takes the view that the Lomonosov Ridge is a submarine elevation within the meaning of the Convention, such that the 2500 metre isobath rule would apply. However, explorations carried out to date indicate that geologically, the Lomonosov Ridge is not a natural component of Russia’s continental margin.
- 10.9 > The area covered by Arctic sea ice has been shrinking for many years, offering access to untapped oil and gas deposits during the summer months in future. It could also open up new shipping routes, such as the Northwest Passage and Northern Sea Route, which are much shorter than the Panama and Suez Canal routes.
- So which country will ultimately be able to lay claim to the Arctic seabed? That will depend on how the Commission on the Limits of the Continental Shelf (CLCS) evaluates the data submitted by the coastal states. And time is pressing: for countries such as Russia, which acceded to UNCLOS before 13 May 1999, the deadline for submission to CLCS of data relating to the prolongation of its continental shelf beyond 200 nautical miles expired on 13 May 2009. It is likely to be many years before all CLCS’s recommendations are available. Countries which acceded to UNCLOS after 1999 or whose accession is planned must submit their documents within 10 years of accession. For Canada, the deadline expires in 2013, while Denmark’s deadline is 2014. Given that new oil and gas deposits were discovered in the Arctic seabed in 2004, it remains to be seen whether the states parties to UNCLOS will opt to extend the deadline envisaged in the Convention. However, the Commission is not responsible for the delimitation of the continental shelf between states with opposite or adjacent coasts. In such cases, UNCLOS merely obliges the states concerned to effect agreements in order to achieve an equitable solution. Moving in that direction, in the Ilulissat Declaration of 28 May 2008, the five Arctic states reaffirmed their commitment to the international law of the sea and the orderly settlement of any possible overlapping claims.
The term “carbon credits” means the same as “emissions allowances”. These allow industrial enterprises, such as power plants or cement works, to emit a specific amount of carbon dioxide (CO2). If a company installs technical systems to reduce its CO2 emissions, it uses up fewer of its emissions allowances. This means that it can sell the surplus to other companies which are still producing high levels of emissions and therefore need more allowances. CO2 reduction measures, which often generate additional costs, thus become economically viable.
The law of the sea and climate change mitigation
One of the most pressing issues on the climate policy agenda is reducing emissions of CO2, a climate gas. This issue has implications for the law of the sea as well. At present, great hopes rest on the storage of atmospheric CO2 in the oceans and seabed. From a law-of-the-sea perspective, however, this is a complex issue, as is apparent from a topical example, namely the fertilization of the oceans with iron providing plant nutrients. The idea is to stimulate primary production of phytoplankton, which, gradually sinking to the sea floor, would remove CO2 from the atmosphere over the longer term. The concept was trialled in the Indo-German “Lohafex” marine research project in 2009. The question which arises, however – not only in relation to Lohafex – is whether this type of geo-engineering activity is compatible with the law of the sea as it stands. Although UNCLOS contains detailed provisions on the protection of the marine environment, it makes no reference to the permissibility of geo-engineering measures in general or iron fertilization in particular. The dumping of waste and other matter at sea is generally prohibited, however, and this prohibition is fleshed out in two other international treaties: the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, adopted in 1972 (London Convention – LC), and the 1996 London Protocol (LP) which tightened and specified the provisions of the London Convention. Accordingly, in October 2008, the states parties agreed that legitimate scientific research should not conflict with the objectives of the London treaties, which means that iron fertilization of the oceans on a commercial basis continues to be prohibited. There was some discussion as to whether industrial enterprises should be able to fertilize the oceans to stimulate algal growth and thus qualify for carbon credits, but it is now accepted that iron fertilization on a commercial basis is prohibited.