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Vol. 14, No. 22 Week of May 31, 2009
Providing coverage of Alaska and northern Canada's oil and gas industry

Not free-for-all land grab

Stephen de Boer: Continental shelf claims following orderly legal process

Alan Bailey

Petroleum News

Contrary to popular opinion, the current flurry of activity around offshore continental shelf claims under the international Convention on the Law of the Sea is an orderly legal process, and not some kind of free-for-all land grab, Stephen de Boer, director of the Oceans and Environmental Law Division for the Canadian Department of Foreign Affairs, told a Commonwealth North forum in Anchorage May 20.

“It’s not a race to the top but an orderly process within the orderly framework of international law,” de Boer said.

International treaty

The Convention on the Law of the Sea consists of an international treaty establishing rules for all aspects of ocean use. Provisions in the convention allow for the possible extension of a coastal nation’s legally recognized continental shelf beyond the customary 200-mile economic exclusion zone. On the extended continental shelf the nation would maintain sovereign rights over the development of resources such as oil and gas.

Nations can submit continental shelf claims to the U.N. Commission on the Limits of the Continental Shelf, the body set up to facilitate the international resolution of these claims.

Canada is working very closely with Denmark, the United States and Russia, with a deadline of making a claim on its mapped delineation of the outer limits of Canada’s continental shelf by 2013, 10 years after Canada ratified the treaty for the international convention, de Boer said.

“Sovereign rights exist with respect to the continental shelf,” de Boer said. “The delineation exercise is merely a way of signaling to other countries what is already ours and what is already yours, recognizing of course that there will be overlapping claims.”

Ilulissat declaration

The overlapping claims are governed by the law of the sea, a principal that was confirmed by the five Arctic Ocean countries, the United States, Canada, Russia, Norway and Denmark, in the Ilulissat declaration in 2008, a declaration that runs counter to media talk of escalating international disputes regarding sovereignty over huge swathes of the Arctic offshore, de Boer said. In fact the offshore surveying that is in progress has not yet reached the point of resolving overlapping submissions, he said.

As well as conducting joint surveying exercises with the United States, Canada has a memorandum of understanding with Denmark for joint surveys and has been exchanging scientific data about Arctic Ocean ridges with Russia.

Another myth that the media have promulgated is the idea that the Commission on the Limits of the Continental Shelf is a U.N. institution that adjudicates over conflicting claims, de Boer said. The commission is in fact a scientific body that will test the veracity of the science presented in each claim: The countries that submit claims will ultimately have to settle their differences through negotiation or some form of litigation, he said.

Not ratified

Some 15 years after the Convention on the Law of the Sea treaty went into effect, the United States has not yet ratified the treaty, a situation resulting from a belief by some Washington politicians and others that the convention undermines U.S. sovereignty and compromises U.S. security interests. But unless the United States does ratify the treaty, the United States will not be able to submit any claims to extend its legally recognized continental shelf, extensions that could include an Arctic region about the size of California.

John Norton Moore, director of the Center of Oceans Law and Policy at the University of Virginia School of Law, and erstwhile U.S. representative in international law of the sea negotiations dating back to the Nixon era, told the Commonwealth North forum that U.S. treaty ratification is essential. The United States played a leading role in the negotiations leading to the treaty, with virtually all of the U.S. objectives for the convention being met or exceeded, Moore said.

“We doubled the area of U.S. resource jurisdiction,” Moore said. In addition, the convention met all U.S. security interests, including the rights of passage through, over or under straits used for international navigation. And, among rights granted to the United States for participation in international organizations, the United States received the only guaranteed seat on the Council of the International Seabed Authority, the entity that administers mining in international waters.

“This (treaty) is not a trade-off,” Moore said. “This is an absolute overwhelming victory for the United States. … And I would say an overwhelming victory for the international community.”

“Ideologically driven”

But, despite widespread support for the convention from many sectors of society, the U.S. Senate has not yet approved ratification. And Moore lambasted what he said is an “ideologically driven group” that opposes treaty ratification, saying that the group’s arguments are based on false or distorted messages.

Contrary to what the group says, there is not a single provision in the convention that undermines U.S. sovereignty; the convention does not place any part of any ocean under United Nations control; there is no threat to U.S. security, a point confirmed by convention support from all of the Joint Chiefs of Staff; prominent Republicans, including President Reagan, have supported the convention; and Russia is playing by the rules when it comes to implementing the terms of the convention, Moore said.

Rather than restricting U.S. use of the high seas, the Convention on the Law of the Sea operates on the basis of freedom of navigation, spelling out responsibilities within areas of national jurisdiction and following a long precedent of free access to the seas, as championed in historic times by the United States and the United Kingdom, said Commander James Kraska of the U.S. Naval War College. The U.S. Department of Defense is a strong proponent of the convention, Kraska said.

“This is not something that’s a function of newly emerging 1990s globalization,” Kraska said. “This is something that’s a function of really the last 500 years. … It’s a liberal world order. It promotes freedom of navigation and multiple uses of the oceans.”

And the fact that the United States and the Soviet Union, supported by other major powers, were primary partners in negotiating the convention during the Cold War reflects the international interest in freedom of navigation, he said.

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Canada conducts survey beyond North Pole

Canadian media are reporting that Canada has been conducting survey flights over the Arctic Ocean, beyond the North Pole, as part of the Canadian effort to gather information about the extent of its Arctic continental shelf, in anticipation of submitting a claim for extended Canadian continental shelf under the terms of Convention on the Law of the Sea. The surveys took place between mid-March and late April and involved collecting gravity data from undersea formations and ridges, according to the Globe and Mail.

In 2001 Russia claimed territory up to the North Pole from its side of the Arctic Ocean in a submission to the Commission on the Limits of the Continental Shelf, but the commission rejected the claim as requiring more substantiating evidence. However, in 2007 Russia caused some political global warming in the Arctic by planting a Russian flag on the seabed at the Pole.

At the core of overlapping claims for sovereign rights at the North Pole is the Lomonosov Ridge, a narrow zone of continental crust which lies under the Pole and crosses the Arctic Ocean from the Russian outer continental shelf, north of Siberia, to continental shelf extending from northern Canada and northern Greenland: Canada, Russia and Denmark (which has sovereignty over Greenland) all have aspirations of exerting sovereign rights along the ridge.

However, despite reports of some saber rattling by Russia and matching rhetoric on the Canadian side of the Arctic, the process for piecing together extended continental shelf claims is proceeding in an orderly manner, with various countries, including Russia, sharing information, Stephen de Boer, director of the Oceans and Environmental Law Division for the Canadian Department of Foreign Affairs, told a Commonwealth North forum May 20.

—Alan Bailey