Seafloor High Shopping: (Mis)applying Article 76 of UNCLOS?

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Introduction

In a 2023 post on EJIL: Talk!, one of the authors to this post addressed some of the conclusions that follow from the recommendations of the Commission on the Limits of the Continental Shelf (CLCS) of 6 February 2023 in regard to the consideration of the revised submission of the Russian Federation of 2015. The post touched also briefly upon the revised submission of the Russian Federation of 14 February 2023, the recommendations in regard to which were made on 8 August 2023. These submissions were made in regard to the Arctic area, where the Russian Federation put forward a claim of entitlement to outer continental shelf. One of the points discussed in the above-mentioned post related to the implications of the refusal of the CLCS to uphold the claim of the Russian Federation that the Gakkel Ridge was part of its continental margin. Yet, it was concluded that ‘nothing would arguendo prevent the Russian Federation from submitting a revised submission, based on new data’ with a view to substantiating the claim that the Gakkel Ridge is part of its continental margin. This was materialized on 30 October 2023 upon the transmission of yet another revised submission to the CLCS in which the Russian Federation introduced new data in support of the claim that the Gakkel Ridge is part of its continental margin.

Under UNCLOS, coastal States may not extend their outer limits beyond the application of the constraints provided for in Article 76(5) of UNCLOS, notwithstanding the seaward extent of the outer edge of the continental margin. There are two alternative constraints, one of which is the 2,500 metres depth constraint, which, depending on the geological setting, may be challenging to apply, while the other constraint, the 350 nautical miles (M) distance constraint, seemingly is more straightforward. Consistent with Article 76(6) of UNCLOS, on submarine ridges the outer limit of the continental shelf shall not exceed 350 M ‘from the baselines from which the breadth of the territorial sea is measured’. The revised submission of 30 October 2023 makes use of the 350M distance constraint. The Russian Federation asserts that the Gakkel Ridge is a submarine ridge within the meaning of Article 76(6) of UNCLOS from which it follows that the outer limits generated from the Gakkel Ridge can not, consistent with the first sentence of Article 76(6) of UNCLOS, exceed 350 M from the baselines of the Russian Federation (p. 6). Yet, while the outer limits of the continental shelf do not extend beyond the 350 M distance line from the Franz Josef Land and the Severnaya Zemlya, respectively, the outer limits generated by Gakkel Ridge extend up to 800 M from the baselines along the Gakkel Ridge. This raises significant challenges with respect to the interpretation and application of the first sentence of Article 76(6) of UNCLOS consistent with which ‘on submarine ridges, the outer limit of the continental shelf shall not exceed 350 [M] from the baselines’. The question arises from which baselines? The response to that question may have significant impact on the application of Article 76 of UNCLOS.

Gakkel Ridge

According to the summary of recommendations of the CLCS of 14 February 2023, the data in support of the putative classification of the Gakkel Ridge as a submarine ridge within the meaning of Article 76(6) of UNCLOS was not considered sufficient. Thus, the fact that the CLCS did not endorse the assertion that the Gakkel Ridge was a submarine ridge was not due to the fundamental geological discontinuity between the Gakkel Ridge and the land mass from which it was said to constitute the submerged prolongation. Rather, in the view of the CLCS, ‘based on the submitted data and information [the] Gakkel Ridge is not morphologically connected with the Laptev Sea continental slope’ (para 73).

It followed from the publically available recommendations to the Russian Federation of 6 February 2023 that relatively large areas on the Amundsen Basin and the Gakkel Ridge were not considered part of the continental shelf of the Russian Federation.

More precisely, it appears that the area between the two orange lines, in addition to the area between the red and blue lines (the latter being the 200 M distance line north of Severnaya Zemlya) in the figure above were considered part of the deep ocean floor with its oceanic ridges within the meaning of the second sentence of Article 76(3) of UNCLOS. Yet, consistent with Article 8 of Annex II to UNCLOS, the Russian Federation has on 30 October 2023 transmitted a revised submission, supposedly with new morphological data substantiating that the Gakkel Ridge is the submerged prolongation of the land mass of the Russian Federation.

A New Revised Submission

In its publically available revised submission of 30 October 2023, the Russian Federation appears to submit that the Gakkel Ridge is morphologically connected with the Laptev Shelf, on which are located the New Siberian Islands, seen at the upper-right corner in the figure below, which we produced from publically available data and information (EEZ limits from https://www.marineregions.org/, version 11).

It is ascertained that the Gakkel Ridge is a submarine ridge within the meaning of Article 76(6) of UNCLOS due to morphological continuity being established between the Gakkel Ridge and the land mass of the Russian Federation.

The red line with the Roman numeration IX, connecting fixed points from 9D144 to point 9D13 in the reproduced figure above (see also p. 6 in the revised submission) is the proposed outer limit of the Russian Federation, apparently enclosing the entire area landward that line, ie. north of Franz Josef Land and Severnaja Zemlya. The additional area now claimed by the Russian Federation accounts for approximately 300.000 square kilometres.

While the Russian Federation asserts that the Gakkel Ridge is a submarine ridge, and therefore uniquely subject to the 350 M distance constraint under Article 76(6) of UNCLOS, the delineation of the 350 M distance line in the revised submission of 30 October 2023 is determined from the baselines of Franz Josef Land and Severnaya Zemlya, rather than from the New Siberian Islands. It results herefrom that the outer limits generated from the Gakkel Ridge extend to approximately 800 M from the baselines of the New Siberian Islands, from which it protrudes, but does not exceed 350 M from the baselines of the Franz Josef Land. The selection of terra firma accordingly raises principle questions in regard to the interpretation of Article 76(6) of UNCLOS. This arises as the first sentence of Article 76(6) of UNCLOS, provides that ‘on submarine ridges, 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’.

Applying the 350 M Distance Constraint

Article 76(6) appears silent as to the question of whether States may indiscriminately use any terra firma within their sovereignty for purposes of constructing the 350 M distance constraint line, or whether the distance constraint in Article 76(6) of UNCLOS rests necessarily on seafloor highs that are the extension of any such particular terra firma.

Whereas the geomorphological setting is not quite similar, the consideration of the submission of the Cook Islands concerning the Manihiki Plateau may provide some guidance on this issue, at least in so far as it concerns the view of the CLCS. The question arose whether the Cook Islands may rely on the Penrhyn Island as land territory for calculating the 350 M distance constraint line. The reason for which this question arose was due to the finding that the Penrhyn Islands was not within an envelope of seafloor highs within the Manihiki Plateau that could generate an outer edge of the continental margin beyond 200 M under Article 76(4)(a)(i-ii) of UNCLOS.

According to the publically available summary of recommendations, the Penrhyn Island is ‘not located in the Manihiki Plateau complex [and does not] have an entitlement to a continental shelf beyond 200 M’ (para 62). According to the CLCS, ‘the 350 M constraint must be determined using only [..] islands that share the same natural prolongation. The baselines from which the breadth of the territorial sea of Penrhyn Island is measured are, therefore, not applicable to this Submission’ (para 93). It follows from the summary of recommendations that the CLCS has made the endorsement of the 350 M distance constraint contingent upon the feature in question generating the outer continental shelf entitlement, on which the submitting coastal State is seeking to apply the depth constraint line.

It is fundamental in international law that ‘continental shelf rights are legally both an emanation from and an automatic adjunct of the territorial sovereignty of the coastal State’ (para 86). Accordingly, it is the coastal State that is vested with entitlement to continental shelf areas, including outer continental, rather than a specific island of the coastal State that is vested with any such entitlement. Yet, the formula applied by the CLCS in regard to the submission of the Cook Islands seems to suggest that a coastal State, including islands within the same envelope of 200 M arcs, may have different and separate entitlements. For reasons that go beyond the scope of this post, this interpretation may be difficult to reconcile with Article 121(2) of UNCLOS consistent with which ‘the continental shelf of an island [is] determined in accordance with the provisions of [UNCLOS] applicable to other land territory’. However, it should be mentioned that the expression of the CLCS on this particular question has been used with modifications in other recommendations.

Opposite and Separate Continental Margins

It is beyond any question that parts of the Scientific & Technical Guidelines of the Commission on the Limits of the Continental Shelf (S&TG) constitute legal interpretations of Article 76, notwithstanding the fact that these are adopted by the CLCS, rather than by the States Parties to UNCLOS. As is apparent in one of the opening paragraphs, by adopting the S&TG, the CLCS seeks to ‘clarify its interpretation of scientific, technical and legal terms contained’ in UNCLOS (para 1.3). Whether or not such ‘interpretations’ are opposable to States Parties may for obvious reasons trigger doctrinal reservations in light of the well-established rule that ‘the right of giving an authoritative interpretation of a legal rule belongs solely to the person or body who has the power to modify or suppress it’ (p. 37). Yet, practice demonstrates that submitting coastal States seek to prepare their submissions in a manner that is consistent with the S&TG, presumably because this optimizes the chances that the consideration of their submissions will result in a favourable outcome. As is provided in the S&TG, these ‘form the basis for the [CLCS] to make its recommendations with respect to submissions prepared by States’ (para 1.1).

One issue that clearly must be seen to constitute a legal interpretation of Article 76 of UNCLOS is the elaboration of a rule preventing States from connecting fixed points, based on sediment thickness, between opposite and separate margins (para 2.3.9) in regard to the establishment of the outer edge of the continental margin under Article 76(4)(a)(i) of UNCLOS. Yet, it has also been applied to other undertakings regarding the application of Article 76 of UNCLOS. To the extent the reasoning underlying paragraph 2.3.9 of the S&TG applies for the purpose of identifying relevant terra firma for measuring the 350 M distance line, the Russian Federation, it would appear, could be seen prevented from relying on the 350 M distance constraint determined from the Franz Josef Land and Severnaya Zemlya in regard to the outer edge of the continental margin that is generated from the Gakkel Ridge. Indeed, it may be difficult to accept the premise that the Gakkel Ridge is not an opposite and separate margin vis-à-vis the continental margins on Franz Josef Land and the Severnaya Zemlya. Accordingly, the question arises whether Article 76(5-6) of UNCLOS and, as appropriate the S&TG, require the baselines of the New Siberian Islands on the Laptov Shelf, from which the Gakkel Ridge is said to constitute the submerged prolongation of land mass within the meaning of Article 76(3) of UNCLOS, applicable for delineating the 350 M distance constraint line, rather than the baselines of Franz Josef Land and the Severnaya Zemlya. On the one hand, it could appear difficult for the CLCS to endorse the construction of the outer limits on the basis of the 350 M distance lines from the overseas archipelagos in light of the considerations underlying its conclusions regarding the Penrhyn Island. On the other hand, it would appear difficult for the CLCS to dismiss the methodology appearing in the most recent revised submission of 30 October 2023. This arises from the fact that the CLCS implicitly did endorse this methodology in its recommendations of 6 February 2023 and its recommendations of 8 August 2023.

The figure above is an excerpt from the publically available Summary of Recommendations of the CLCS, adopted on 6 February 2023 to the Russian Federation (Fig. 15).

The white dots on the Lomonosov Ridge are foot of the continental slope (FOS) points that generate fixed points of outer edge of the continental margin under Article 76(4)(a)(i-ii) of UNCLOS. The outer limits that are generated from Franz Josef Land (orange line connecting yellow points) result in the relatively small area immediately adjacent to the 200 M distance line (light blue in colour) from Franz Josef Land. The green line is of more interest. It is the 350 distance line from the baselines of the Russian Federation. It intersects and crosses the outer edge of the continental margin generated from the Lomonosov Ridge. It has been delineated, together with the dark-blue line which is the 2,500 m depth constraint contour, to ensure that the criteria in Article 76(5-6) are fulfilled. However, while the Lomonosov Ridge generates an outer edge of the continental margin in a seaward direction, from the Lomonosov Ridge towards the Franz Josef Land, the baselines for determining the 350 M distance line are those of Franz Josef Land and Severnaya Zemlya.

Further, in the publically available recommendations to the Russian Federation of 6 August 2023 in regard to the revised submission of 14 February 2023, a similar phenomenon appears.

The red points are the revised fixed points of the outer edge of the continental margin. Those red points are all generated from FOS points located at the base of the Lomonosov Ridge. The Lomonosov Ridge protrudes from the Laptev Shelf, which generates a 350 M distance line approximating FOS 27 and outer limit fixed point 11H80. All of the red dots, connected with straight lines not exceeding 60 M, constitute the outer limits of the continental shelf, as endorsed by the CLCS in its recommendations. It would appear fixed points 11H109 to 11H185 are located seaward of the 350 M distance constraint line from the New Siberian Islands. In other words, were the 350 distance constraint line to be determined from the baselines of the New Siberian Islands on the Laptev Shelf, a large area within the endorsed limits would be excluded under the 350 M distance constraint. Yet, the Russian Federation has measured the constraint line from the baselines of Severnaya Zemlya and more importantly, the CLCS ‘agrees with the methodology applied by the Russian Federation in the construction of these distance constraint lines’ (para 28). Surprisingly, the CLCS went even further by attesting that ‘[i]n the south-east Eurasia Basin, the distance constraint is located entirely seaward of the outer edge of the continental margin’ (para 29). This statement can be questioned as the seaward direction on the flank of Lomonosov Ridge is defined from the FOS points towards the outer edge of the continental margin, implying that the distance constraint is in fact located entirely landward of the outer edge. In any case, the findings of the CLCS did not have any impact on the outer limits as the Lomonosov Ridge was approved to be a submarine elevation that is a natural component of the continental margin of the Russian Federation, which necessarily allows the use of the 350 M distance line or/and the 2,500 m depth constraint. Since the 2,500 m depth constraint line lies seaward of the outer edge of the continental margin, it is the applicable constraint. Yet, what matters is the fact that the principle was established that seemingly any terra firma may be used for purposes of delineating the 350 M distance line. And that principle was proven important as appears in the revised submission of 30 October 2023 related to the Gakkel Ridge. This arises, because contrarily to the Lomonosov Ridge, which is a submarine elevation on which both constraints apply, the Gakkel Ridge is, as asserted by the Russian Federation, a submarine ridge within the meaning of the first sentence of Article 76(6) of UNCLOS.

Upon the receipt of the recommendations in February 2023 in conjunction with those of August 2023, it can be no surprise that the Russian Federation would seek to enclose the entire Gakkel Ridge within the outer limits of its continental shelf on the understanding that the Gakkel Ridge is a submarine ridge on which the ‘outer limit of the continental shelf shall not exceed 350 [M] from the baselines’. However, it may, notwithstanding, generate limits that extend in casu up to 800 M from the baselines from the land mass from which it is the submerged prolongation if only there are overseas archipelagos on which the submitting coastal State may leapfrog for fulfilling the criteria underlying the 350 M distance constraint. Given the findings of the CLCS in its recommendations of February and August 2023, it may be difficult to disagree with the Russian Federation to rely on the baselines of Franz Josef Land and the Severnaya Zemlya for purposes of measuring the 350 M distance constraint in regard to the outer edge of the continental margin generated from the Gakkel Ridge. Yet, it does seem to challenge the ordinary meaning to attribute to the rule in Article 76(6) consistent with which the outer limits of the continental shelf shall not exceed 350 M on submarine ridges

Closing Observations

It will be interesting to follow the consideration of the revised submission made by the Russian Federation. This is all the more true in light of the fact that the question identified in this post clearly relates to one of those aspects that is unequivocally not limited to a technical assessment but relates to legal interpretations of fundamental importance. Without prejudice to the outcome, the question arises on the one hand whether a treaty body composed of 21 scientists all of which act in their personal capacity (see Article 2) is in an appropriate institutional position to determine how to interpret the distance constraint within the above setting(s), which potentially may result in a disagreement on a legal interpretation of significant importance for the application of Article 76. On the other hand, the contrary may result in recommendations, which provide opposable outer limits, relying on different methodologies all of which may constitute different interpretations of Article 76 of UNCLOS. To proceed accordingly could be seen contrary to the CLCS terms of reference consistent with which it ‘shall [..] make recommendations in accordance with Article 76’ of UNCLOS (Article 3(1)(a) of Annex II to UNCLOS). Either way, the outcome will trigger interest in the international legal community.

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Mark Seidenberg says

January 19, 2024

BJORN & WALTER (if I may),

Bjoderrn wrote on 3 March 2023 wrote: "Under the Rules of Procedure of the CLCP (Rop), where a submission related to an area that is in dispute, the prior consent of the relevant States with opposite
or adjacent coasts is a requisite for the CLCS to consider a requisite for the CLCS to consider any such submission".

On 1 August 1850 at 8:30 pm the British Royal Navy took formal possession of the Plover Group (four islands to the east of what now is known as Plover Point, Alaska, which includes Cooper and Martin islands).

During the period of 13 March through 12 April 1930, Samuel Wittermere Boggs (Geographer of the US Department of State)
proposed a concession of Machias Seal Island of the Western Seal Islands in Washington County, Maine to New Brunswick for a British concession of the Plover Group to the USA without a treaty. William Eric Beckett (2nd Legal Advisor of the British Foreign Office) rejected the
concession made as an Imperial Question, because it was not going to be done by a treaty.

Then in August 1938, Boggs tried it again as an non-Imperial Question with the Government of Canada at Ottawa. This time the federal government of Canada rejected the concession officer. Which Boggs explained in his trip report to Ottawa at the Department of State because all the Canadian Officials were "provincial". Boggs did not return to Ottawa until 31 March 1944.

This puts the Maine sovereignty over Machias Seal Island at risk again. The real question is why Senator Angus King is putting Maine sovereignty at risk for seafloor on an expanded outer continental shelf to the north of Alaska to hurt the Maine LOBSTER fisherman.

Thank you for any answer to why doing an unconstitutional taking of Machias Seal Island and in environ waters in the interest of Maine?

Mark Seidenberg, Anchorage, Alaska