Recommendations on the Russian Federation’s Proposed Outer Continental Shelf in the Arctic Area

On 6 February 2023 the Commission on the Limits of the Continental Shelf (CLCS) made its recommendations to the Russian Federation under Article 76(8) and Article 3 of Annex II to the United Nations Convention on the Law of the Sea (UNCLOS) in regard to the Arctic area. The Russian submission was initially made in 2001 but revised in 2015 and further revised in 2021. The proposed outer limits of the continental shelf were significantly expanded in the course of these sequential revisions. While the CLCS did not approve the entirety of the approximate 2 million square kilometres claimed by the Russian Federation, the lion’s share of the claim was approved, disapproving only approximately 300.000 square kilometres of claimed entitlement. Finally, on 14 February 2023, Russia submitted a revised submission, submitting further data in regard to the local part of the Amundsen Basin.

Outer Continental Shelf

The continental shelf begins where the territorial sea ends. The continental shelf extends throughout the natural prolongation of the land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles (M) from the baselines from which the territorial sea is measured (baselines) where the outer edge of the continental margin does not extend up to 200 M from the baselines. All coastal States have inherent rights to the continental shelf, but those States that intend to establish limits that go beyond the 200 M distance line are obligated to submit data and particulars that support such outer limits to the CLCS, established under Annex II to UNCLOS.

Consideration

Four of the five coastal States to the Central Arctic Ocean have submitted their proposed outer limits of the continental shelf to the CLCS. These are Canada, Denmark/Greenland, Norway and Russia. The fifth state, the United States of America, is not a State Party to UNCLOS and has in any event not yet submitted data and particulars in support of the claimed limits of the continental shelf to the Arctic. Under the Rules of Procedure of the CLCS (RoP), where a submission relates 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 any such submission. None of the Coastal States in the Arctic has made use of the veto under Rule 5(a) of Annex I to the RoP in regard to any of the submissions transmitted to the CLCS. This has allowed the CLCS to consider the submission of Russia notwithstanding the difficult geopolitical context. In other words, the exercise of the mandate of the CLCS in regard to submissions that are subject to overlapping claims operates under the same rule as the jurisdiction of international courts and tribunals, i.e. consent is required by the disputing parties. Yet, given the rule that the submissions are considered in the order that they are received, there will be a number of years before the CLCS shall consider the submissions of Denmark/Greenland and Canada, while it remains to be seen whether the United States, as a non-party to UNCLOS, may submit its data and particulars to the CLCS, which is a treaty body established under Annex II to UNCLOS.

Importance of Recommendations

While the recommendations are non-binding per se they do have normative value. This arises from the fact that whereas proposed outer limits in a submission to the CLCS are based on a unilateral act, those limits that are endorsed by the CLCS are opposable under international law. According to decisions of international courts and tribunals (see e.g. para 188 in Maritime Delimitation in Indian Ocean (Somalia v. Kenya)), only outer limits that are based on CLCS recommendations are opposable in international law. Beyond the outer limits is an ‘Area’, within the meaning of Part VII of UNCLOS, the resources of which are to be governed by the International Seabead Authority, ie. its resources are the common heritage of mankind. Some parts of the outer limits of Russia that result from these recommendations will result in the establishment of outer limit lines, which are established unilaterally vis-à-vis the Area. Yet, a large share of the continental shelf entitlement of Russia, as approved by the CLCS, is subject to overlapping claimed entitlements by Canada and Denmark/Greenland. Accordingly, international law will not allow unilateral outer limits to be established in any of these areas, but will require the establishment of boundaries to be negotiated by two or more parties or alternatively to be established by an international court or tribunal where these have competence, assuming that the other coastal States will likewise be successful with their endeavors to have their proposed outer limits of continental shelf limits endorsed by the CLCS.

Recommendations of the CLCS to the Russian Federation

The Summary of Recommendations of the CLCS regarding Russia’s claims to the Arctic area will be read with great interest by different actors. Among the very interesting elements therein, there are in particular three aspects that have obvious legal implications that deserve particular attention.

Firstly, the CLCS accepted that the Lomonosov Ridge is a submarine elevation that is a natural component of the continental margin (submarine elevation). It is therefore eligible to generate an outer limit line that goes far beyond 350 M from the baselines. This arises as the constraints in Article 76(5) of UNCLOS, i.e. the 350 M distance constraint line and the 2,500 metres depth constraint line may be used alternatively on submarine elevations only, whereas ´submarine ridges` within the meaning of Article 76(6) cannot generate outer limits of the continental shelf that go beyond the 350 M distance constraint only. The Lomonosov Ridge is a ridge-shaped feature, but notwithstanding this morphological characteristic, it is now recognized to be a submarine elevation. This is a central consideration not only for Russia, but also for the other Arctic coastal States that have sought to rely on the Lomonosov Ridge as a submarine elevation, which acts as a spine for extending their entitlements to the continental shelf, as there are 2,500 metres depth points throughout the Lomonosov Ridge. Further, the acceptance of Lomonosov Ridge as a submarine elevation is a recognition of the fact that seafloor highs in Article 76 of UNCLOS do not operate according to geometry. This means that it is immaterial whether a seafloor high is a ridge-like feature for purposes of determining whether it is a submarine elevation allowing both constraints in Article 76(5) to operate, or, alternatively, a submarine ridge within the meaning of Article 76(6) of UNCLOS which cannot generate outer continental shelf entitlement that goes beyond the 350 M distance constraint line.

Under the practice of the CLCS there appear two conditions that apply for classifying a seafloor high as a submarine elevation: (i) the feature in question must be morphologically continuous with the continental margin that is the submerged prolongation of the land mass from which the continental shelf stems, and (ii) the feature must also share geological characteristics with the land mass from which it constitutes the submerged prolongation. In the view of the CLCS the submitted data demonstrated that the ´Lomonosov Ridge is a continental crustal block` (para 91) and constitutes a ´morphological continuity` with the land mass of Russia (para 49). Under these conditions, the CLCS approved classifying the Lomonosov Ridge as a submarine elevation. Accordingly, whereas ´significant geological discontinuity` (para 419), to use the expression of the International Tribunal for the Law of the Sea in the Bay of Bengal case, does not impair any entitlement to outer continental shelf is not the same as to mean that geology being immaterial for the purpose of determining whether a seafloor high is a submarine elevation. It is recalled that only submarine elevations may generate outer continental shelf entitlement that extends the 350 M distance line. In the case of the Lomonosov Ridge where it is possible to identify 2,500 metres isobaths throughout its extent, this determination is critical, allowing it in casu to extend entitlement up to 900 M from the baselines.

Secondly, in its initial recommendations to Russia in 2002, the CLCS was of the view that the Alpha-Mendeleev Ridge Complex cannot as such, allegedly due to its origin from which there was only esteemed a tenuous geological affinity with the land mass, constitute a submarine elevation. Yet, the conclusion must be made that the considerations on this particular question within the CLCS have changed. This arises as the CLCS now has approved the view of Russia consistent with which the Alpha-Mendeleev Ridge Complex constitutes a submarine elevation. Accordingly, the Alpha-Mendeleev Ridge Complex may generate entitlement that goes far beyond the 350 M distance line.

Thirdly, the Gakkel Ridge is an active oceanic spreading ridge whereas the land mass of the Russian Federation is composed of continental crust. Russia had sought to classify the Gakkel Ridge as a ´submarine ridge` within the meaning of Article 76(6), rather than a submarine elevation due to the fundamental geological discontinuity between the Gakkel Ridge and the land mass of Russia. However, the CLCS did not approve that the Gakkel Ridge is a submarine ridge. The proposition could be made that such an active oceanic spreading ridge cannot under any imaginable standard constitute the submerged prolongation of the land mass of a State composed of continental crust. Rather, it could be expected, an active oceanic spreading ridge necessarily constitutes part of ´the deep ocean floor with its oceanic ridges` under Article 76(3) of UNCLOS, at least where the relevant coastal State is of continental origin. However, the practice of the CLCS demonstrates overwhelmingly an inclination to rely on bathymetry and morphology only, in order to determine whether a seafloor high is an integral part of the continental margin, or, failing such a finding, part of the deep ocean floor with its oceanic ridges.

The reason the CLCS did not approve the tentative classification of the Gakkel Ridge, claimed by Russia to be a submarine ridge within the meaning of Article 76(6), is exclusively the lack of data documenting morphological continuity with the continental margin that is the submerged prolongation of the land mass of Russia. This refusal was not due to the origin of the feature and its geological affinity, or lack of the same, with the land mass of Russia, but merely to the lack of documentation of a morphological continuity. This consideration of the CLCS will build upon the previous practice consistent with which only morphology and bathymetry determine whether a seafloor high generates outer continental shelf entitlement. Geology has no role in this issue, even in extreme situations, such as whether the Gakkel Ridge can constitute the submerged prolongation of a land mass that is of continental crust. Accordingly, nothing would arguendo prevent Russia from submitting a revised submission, based on new data potentially enabling the satisfaction of the required data to document sufficient morphological continuity to constitute an integral part of that continental margin. Yet, the revised submission of 14 February 2023 does not relate to the Gakkel Ridge.

Without prejudice

Consistent with Article 76(10) of UNCLOS, the recommendations of the CLCS are without prejudice to questions ´of delimitation of the continental shelf between States with opposite or adjacent coasts`. Given the rule that ´submissions shall be queued in the order they are received` (Rule 51(4)(ter) of the RoP)  it would appear likely that the submissions of Canada and Denmark/Greenland will only be submitted in 15 – 25 years. Yet, this will in no manner prejudice the rights of these States to their continental shelf entitlements in the Arctic. Russia has in reaction to the submissions of Canada and Denmark/Greenland explicitly consented to the consideration of these submissions. Yet, it should also be observed that the expression of such consent is not irreversible, as is symptomized by the recent withdrawal of Pakistan’s consent to consideration of India’s submission notwithstanding India did not object to the CLCS making recommendations to Pakistan whose submission also overlapped with the claimed entitlement of India.