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Canada and Arctic Politics: The Continental Shelf Extension

2008; Taylor & Francis; Volume: 39; Issue: 4 Linguagem: Inglês

10.1080/00908320802459052

1521-0642

Elizabeth Riddell‐Dixon,

Polar Research and Ecology

Abstract This article challenges the validity of the commonly held assumption that Canada and other Arctic countries are engaged in a highly competitive scramble to stake claims for extensions to their continental shelves beyond 200 nautical miles, and that Canada may lose out because it is lagging behind in this race to claim as many seabed resources as possible. It argues that the process is orderly; that, under international law, Canada already has sovereign rights over the continental shelf beyond 200 nautical miles; that the process is generally characterized by cooperation; and that the timing of various countries’ submissions to the Commission on the Limits of the Continental Shelf will not be a key determinant of success. Keywords: ArcticCanadacontinental shelf The author thanks government officials in the Departments of Foreign Affairs and International Trade, Natural Resources, Fisheries and Oceans, and Indian and Northern Affairs, who generously shared their time and insights with her. She particularly thanks Richard MacDougall, Jacob Verhoef, Vesna Guzina, and Ted McDorman for their helpful comments on earlier drafts of this article. The author also thanks Heather Nesbitt, her research assistant. She acknowledges assistance from the Alumni Research Awards Program, Faculty of Social Science, University of Western Ontario. Notes 1. Anthony Browne, “Melting Ice Starts Rush for Arctic Resources,” Times (London), Jan. 28, 2006, 45. 2. Owen Bowcott, “World Battle for Seabed,” Mail and Guardian, Jan. 9, 2008, 1. 3. David R. Sands, “Sea Treaty Sparks Rivalries; Senate Fight Looms Amid Race to North Pole,” Washington Times, Nov. 12, 2007, A01. 4. Scott Borgerson, “Averting a Cold War on Ice: Arctic Ambitions,” International Herald Tribune, Aug. 9, 2007, 6. 5. United Nations Convention on the Law of the Sea, 1833 U.N.T.S. 397. 6. Ibid., art. 1.1. 7. Ibid., arts. 55 and 57. Both the territorial sea and exclusive economic zone are measured from baselines drawn along the coast. 8. Ibid., art. 56.1(a). 9. Ibid., art. 76(1). The legal concept of the continental shelf does not coincide with the scientific usage of the term. In legal terms, the continental shelf refers to the scientific continental margin, of which the scientific continental shelf is but one of three components. The legal definition of the term is used in this article. 10. Ibid., art. 77. 11. For example, it is frequently stated that the Arctic seabed may contain 25% of the world's undiscovered gas and oil reserves. See Paul Reynolds, “The Arctic's New Gold Rush,” BBC News, Oct. 25, 2005; Fred Weir, “As Icecaps Melt, Russia Races for Arctic's Resources,” Christian Science Monitor, July 31, 2007, 1–3; “Debate Canada's Arctic Strategy,” Toronto Star, Aug. 12, 2007, A18; and Michael Byers, “Canada's Arctic Race with Russia; Securing Canada's Rights in the Arctic Will Require a Serious Investment of Money and Personnel,” Toronto Star, July 29, 2007, A19. The original estimate is taken from a study done by the U.S. Geological Survey. See Gregory Ulmishek, Petroleum Geology and Resources of the West Siberian Basin, Russia (U.S. Geological Survey, 2003), 38. The citation is problematic on two scores. First, it referred to one section of the Arctic—the northern West Siberian Basin—and not to the whole Arctic. Second, its data was faulty; hence, the U.S. Geological Survey subsequently withdrew it and planned to issue a new study later this year. Predictions of great riches are not confined to references to the above-mentioned study. For example, McKenzie Funk wrote that over “a fifth of the world's undiscovered oil and liquid gas—175 billion barrels, according to one estimate—is thought to be hiding in the Arctic” in “Cold Rush: The Coming Fight for the Melting North,” Harper's Magazine, September 2007, 48. 12. Interviews with Jacob Verhoef, director, Geological Survey of Canada, Department of Natural Resources; and Richard MacDougall, director, Law of the Sea Project, Canadian Hydrographic Service, Department of Fisheries and Oceans, Halifax, Nova Scotia, Canada, on Feb. 8, 2008. 13. Funk, supra note 11. 14. Reynolds, supra note 11. 15. Barbara Yaffe, “Arctic Politics Means a Tussle over Who Owns the North,” Vancouver Sun, Nov. 17, 2005, A-21. 16. Lee Berthiaume, “Arctic Claims Will Be ‘Messy,’” Embassy, Aug. 22, 2007, 1. 17. On September 12, 1997, the Commission adopted its Rules of Procedure (CLCS/3), which have since been revised and expanded. See documents of the Commission: CLCS/3, 12 September 1997; CLCS/3/Cor.1, Apr. 27, 1998; CLCS/3/Rev.1, May 14, 1998; CLCS/3/Rev. 2, Sept. 4, 1998; CLCS/3/Rev. 2/Corr.1, Mar. 28, 2000; CLCS/3/Rev. 3, Feb. 6, 2001; and CLSC/3/Rev.3/Corr. 1, May 22, 2001. 18. In return for being granted sovereign rights to explore and exploit the nonliving resources of the continental shelf beyond 200 nautical miles, the coastal state must make payments or contributions in kind based on the value or volume of resources extracted at a site. LOS Convention, supra note 5, art. 82. Because no resource development is likely in the near future in the areas of the Arctic beyond 200 nautical miles, the provisions are not discussed in this article. For a critique of Article 82, see Ted L. McDorman, “Editorial: Canada Ratifies the 1982 United Nations Convention on the Law of the Sea: At Last,” Ocean Development and International Law 35 (2004): 107–108. 19. LOS Convention, supra note 5, art. 76(4)(b). 20. Interview with Richard MacDougall, director, Law of the Sea Project, Canadian Hydrographic Service, Department of Fisheries and Oceans, Halifax, Nova Scotia, Canada, on Dec. 21, 2007. 21. LOS Convention, supra note 5, art. 76.4(a)(i and ii). 22. The 2,500-meter isobath is a line that connects the parts of the seabed that lie at a depth of 2,500 meters. Ibid., art. 76(5). 23. Ibid., art. 76(8). The mandate, membership, and decision-making procedures for the Commission are outlined in LOS Convention, Annex II. 24. Ibid., art. 76(8). 25. Ibid., Annex II, art. 8. 26. The Western Europe and Other seats are currently held by experts from Australia, Ireland, Norway, and Portugal. In each case, the same individuals were elected in both 2002 and 2007. 27. Canada, Department of Foreign Affairs and International Trade, “Joint Statement on Canada-Russia Economic Cooperation,” Ottawa, Nov. 29, 2007, 2. 28. United States, Geological Survey, “Law of the Sea—Outer Limits of the US Continental Margins,” Woods Hole, Jan. 15, 2008, 1. 29. United States, Senate Foreign Relations Committee, “The UN Convention on the Law of the Sea,” testimony by John Negroponte, deputy secretary of state, Washington, DC, Sept. 27, 2007, 3. 30. Ibid., at 1. See also United States, Department of Commerce, National Oceanic and Atmospheric Administration, U.S. Ocean Action Plan: The Bush Administration's Response to the U.S. Commission on Ocean Policy (Washington, DC, 2004), 5. 31. Oceans Act, Statutes of Canada 1996, chap. 31, sec. 17. 32. Canada, Department of Foreign Affairs and International Trade, “Canada's Extended Continental Shelf,” Briefing Note (Ottawa, 2007), 1. 33. Interview with Verhoef, supra note 12. 34. Gulf of Maine Case (Canada v. United States), [1984] ICJ Rep. 246. 35. Jennifer Taplin, “Icebreaker on Way to Arctic Gold Rush: Countries Explore Northern Wealth, Hammer Out Borders,” Daily News, July 5, 2007, 9. 36. Doug Saunders, “Treading on Thin Ice: Stephen Harper Is Beefing Up Canada's Claims on the Arctic, but It's Not Clear Who Owns the Northern Sea and the Potential Resource Windfall Beneath It,” Globe and Mail, Oct. 20, 2007, A-1. 37. United States, Geological Survey, “Law of the Sea,” supra note 28. 38. LOS Convention, supra note 5, art. 77(3). 39. Interview with Vesna Guzina, legal officer, Oceans and Environmental Law Division; Rodney Neufeld, legal officer, Oceans Law Section; and Caterina Ventura, deputy director, Oceans Law Section, Department of Foreign Affairs and International Trade, on Dec. 5, 2007. 40. Interview with MacDougall, supra note 20. 41. Interviews with MacDougall and Verhoef, supra note 12. 42. Ibid. 43. For example, the Arctic Council and 1991 Arctic Environmental Protection Strategy were created to foster multilateral cooperation and coordination. Interview with Leslie Whitby, director, Environment and Renewable Resources Directorate, Indian and Northern Affairs, Ottawa, Ontario, Canada, on Dec. 5, 2007. 44. Interview with Guzina, Neufeld, and Ventura, supra note 39. Denmark chartered the vessel as well as the Swedish icebreaker, Oden. A Canadian scientist was on board the Oden, from which the research was conducted. 45. The Memorandum of Understanding was signed by the Geological Survey of Canada and the Geological Survey of Greenland and Denmark in June 2005. 46. Interviews with MacDougall and Verhoef, supra note 12. 47. Australia's 19,000-page submission included 10 geographic areas and is considered the “Cadillac of submissions.” Interview with MacDougall, supra note 20; and interview with Verhoef, supra note 12. 48. “Joint Statement on Canada-Russia Economic Cooperation,” supra note 27, at 2. 49. The lack of transparency in the submission process as well as recommendations for addressing it are discussed by Ron Macnab, “The Case for Transparency in the Delimitation of the Outer Continental Shelf in Accordance with UNCLOS Article 76,” Ocean Development and International Law 35 (2004): 1–17. For a detailed critique of the Commission, see Ted L. McDorman, “The Role of the Commission on the Limits of the Continental Shelf: A Technical Body in a Political World,” International Journal of Marine and Coastal Law 17 (2002): 301–324. 50. United Nations, General Assembly, Sixty-second Session, Oceans and the Law of the Sea (A/62/L.27), Dec. 4, 2007, especially paras. 39 and 41, at 6. 51. See United Nations, State Parties to the Law of the Sea Convention, Seventeenth Meeting, “Decision on Issues Related to the Workload of the Commission on the Limits of the Continental Shelf,” SPLOS/162, June 26, 2007, para. 4, at 2. 52. Ed Struzik, “‘Who's Guarding Our Back Door?’ The Arctic Has Immense Oil Resources and Mineral Wealth, but Canada Has Been Slow to Protect Its Northern Sovereignty,” Toronto Star, Nov. 18, 2007, A-17. 53. The Canadian government has been criticized for “decades of inaction.” See “A Strong Canada in a Shared Continent; Arctic Co-operation Could Re-energize Crucial Relationship with the Americans,” Toronto Star, Dec. 30, 2007, A-25. 54. Interview with MacDougall, supra note 20. 55. I am indebted to Jacob Verhoef for explaining seismic methodology. 56. Interview with MacDougall, supra note 20. 57. Interview with Verhoef, supra note 12. 58. I am indebted to Richard MacDougall for the details of this venture. 59. Interview with MacDougall, supra note 20. 60. The discussion of the climatic challenges draws heavily on the insights provided by Richard MacDougall, supra note 20. 61. Interview with Verhoef, supra note 12. 62. Ibid. 63. Ibid. 64. Interview with MacDougall, supra note 20. 65. Ibid. 66. Ibid. 67. For example, see “A Strong Canada in a Shared Continent,” supra note 53; Saunders, “Treading on Thin Ice,” supra note 36; and Struzik, “‘Who's Guarding Our Back Door?’” supra note 52. 68. Under Annex II, Article 4 of the LOS Convention, submissions have to be made within 10 years of the Convention entering force. However, in 2001, the deadline for those that ratified before 1999 was extended to 2009. United Nations, Eleventh Meeting of State Parties to the Law of the Sea Convention, “Decision Regarding the Date of Commencement of the Ten-Year Period for Making Submissions to the Commission on the Limits of the Continental Shelf Set Out in Article 4 of Annex II to the United Nations Convention on the Law of the Sea,” SPLOS/72, May 29, 2001. 69. In 2001, Canada commented that it could neither agree nor disagree with the Russian findings without having access to the details of the latter's supporting data, but that its inability to respond “should not be interpreted as either agreement or acquiescence by Canada to the Russian Federation's submission.” Canada further asserted that the submission and the Commission's response “are without prejudice to the question of delimitation of the continental shelf between Canada and the Russian Federation.” Permanent Mission of Canada to the United Nations, “Canada: Notification Regarding the Submission made by the Russian Federation to the Commission of the Limits of the Continental Shelf,” Note no. 0145, New York, Jan. 18, 2002. 70. LOS Convention, art. 76(10). In a similar vein, the LOS Convention did not specify how disputes over overlapping exclusive economic zones were to be resolved. There currently are some 300 ongoing maritime disputes involving boundaries of exclusive economic zones—many of which will be negotiated, although some will go to arbitration. 71. Interviews with MacDougall and Verhoef, supra note 12. 72. Interview with MacDougall interview, supra note 20. 73. Ibid.