Uncertain Factors in the Delimitation of the Outer Continental Shelf and Its International Practice in the Arctic

Gui Jing

Uncertain Factors in the Delimitation of the Outer Continental Shelf and Its International Practice in the Arctic

Gui Jing*

Disputes over the Arctic are shifting from those regarding scientific research to those over entitlement to resources.These disputes currently focus on delimitation of the outer continental shelf and navigational channels. Provisions related to the outer continental shelf boundaries in Article 76 of the UN Convention on the Law of the Sea are uncertain.While these provisions provide the basis for surrounding countries’claims to certain rights in the region,they also are the source of disputes among these countries.Objectively speaking,it is necessary to address the uncertainty of the Convention through international practice.Therefore,opinions rendered by the UN Commission on the Limits of the Continental Shelf will have vital significance for the resolution of similar conflicts not only in the Arctic,but also in the rest of the world.As a country with existing interests in the Arctic,China should examine these opinions closely and respond accordingly.

Arctic;outer continental shelf;Lomonosov Ridge;delimitation of the continental shelf

The Arctic usually refers to the area North of the Arctic Circle(66°33′N),consisting of the Arctic Ocean,marginal coastal land,islands,the Arctic tundra,and,at its outer edge,the Taiga.It encompasses Europe,Asia,and the northern part of North America,totaling 21 million square kilometers.Within the region is approximately 8 million square kilometers of land and islands,belonging to eight surrounding countries:U.S.A.,Russia,Canada,Denmark,Ice-land,Norway,Finland and Sweden.The Arctic seabed is an oval basin divided by three main mid-ocean ridges:the Mendeleev Ridge,the Lomonosov Ridge, and the Arctic Mid-Ocean Ridge.The Lomonosov Ridge,which is high and steep,and extends from the New Siberian Islands through the North Pole to the northern coast of Greenland,towering 2,500 meters above the abyssal plain,dominates the basin.

Since the United Nations Convention on the Law of the Sea(“UNCLOS”) took effect,international maritime boundaries are now delimited by agreement among coastal countries.Waters within two hundred nautical miles from the coast are no longer the High Seas,and nearly 2/5 of the world’s waters now belong to coastal countries.In practice,most maritime delimitation agreements involve the exclusive economic zone(“EEZ”)and the continental shelf.While there are very few purely EEZ delimitation agreements,1/3 of all maritime delimitation agreements have to do with continental shelves.①Guo Yuan,Research on Geopolitics of Nanhai,University of Heilongjiang Press,2007,p.33.As theinternational community focuses more attention on the Arctic,the five coastal states surrounding the Arctic Ocean—Canada,Denmark,Norway,Russia and the United States—have committed themselves to strengthening their territorial and jurisdictional claims in the region.In December 2001,Russia submitted its claim for extending its outer continental shelf in the Arctic beyond the 200-nautical mile EEZ,thus becoming the first country to submit such a claim under UNCLOS to the UN Commission on the Limits of the Continental Shelf(“UNCLCS”).The core argument of this claim is that the Lomonosov and Mendeleev Ridges are natural extensions of Russia’s continental shelf.In response, the UNCLCS recommended that Russia conduct further research and datagathering to amend its submission.In 2006,Norway also submitted its claim to the UNCLCS to extend the limits of its outer continental shelf in the Arctic.②The UNCLCS completed its review of Norway’s submission in March 2009 and published its Summary of the Recommendations.UNCLCS,Summary of the Recommendations of the Commission on the Limits of the Continental Shelf in Regard to the Submission Made by Norway in Respect of Areas in the Arctic Ocean,the Barents Sea and the Norwegian Sea on 27 November 2006,at http://www.un.org/Depts/los/clcs_new/submissions_files/ nor06/nor_rec_summ.pdf,30 November 2009.The UNCLCS recommended that“the delineation of the outer limits of the continental shelf in the Banana Hole area of the Norwegian and Greenland Seas be conducted in accordance with article 76,paragraph 7[of the UNCLOS],by straight lines not exceeding 60 M in length,connecting fixed points,defined by coordinates of latitude and longitude.The establishment of the final outer limits of the continental shelf of Norway in parts of the Banana Hole may depend on delimitation between States.”Canada,Denmark and the United States may also seek to delineate their continental shelves claims in the next few years.

Article 76 of the UNCLOS prescribes the definition of the outer continental shelf.However,the lack of precise definition of certain terms has resulted in ambiguity in interpreting this article.

Ⅰ.The UNCLOS Outer Continental Shelf Provisions and Their Uncertainty

Article 76,Paragraph 1 of the UNCLOS defines the continental shelf of a coastal state as“compris[ing]the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin,or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.”①United Nations,The United Nations Convention on the Law of the Sea,1833 U.N.T.S. 397,1982.This paragraph prescribes two rules for delineating the outer limits of the continental shelf:the distance(200 nautical miles)rule and the natural extension rule.If the outer edge of the continental shelf is less than 200 nautical miles from the baselines from which the breadth of the territorial sea is measured,the distance rule applies,and the continental shelf is extended to 200 nautical miles.If the outer edge of the continental shelf is over 200 nautical miles from the baselines,the natural extension rule applies,and the continental shelf is established by one of the two methods prescribed in Paragraph 4 (a).However,Paragraphs 5 and 6 limit the maximum width of a coastal state’s continental shelf.Here,the distance rule provides a minimum width of 200 nautical miles for where the continental shelf does not naturally extend to that distance.Natural extension is a key indicator of the definition of the continental shelf,and the coastal states claiming continental shelves beyond 200 nautical miles must invoke the natural extension provisions.The“extension”must be continuous from the shoreline to the outer edge of the continental margin.Paragraph 3 provides a broader legal definition of the continental margin from the geomorphological perspective:“The continental margin comprises the submerged prolongation of the land mass of the coastal State,and consists of the seabed and subsoil of the shelf,the slope and the rise.It does not include thedeep ocean floor with its oceanic ridges or the subsoil thereof.”①Id.,art.76,3.Article 76, Paragraphs 4-6 of the UNCLOS set forth how to define the continental shelf in the legal sense,including determinations based on the continental slope,the maximum limits of the continental shelf,outer continental margin and ridge.

A.The Foot of the Continental Slope

There is no UNCLOS provision regarding the effect of different crustal types on delineating the continental margin,despite evidence of their influence from the negotiation process in many cases.This implies that the submerged prolongation of the landmass of a coastal State,regardless of its sediment characteristics,belongs to its continental margin(legal continental shelf).However,topography,physiognomy and thickness of marine sediment are important technical indicators in identifying the natural extension of land mass.The foot of the continental slope is the primary feature in the delimitation of the continental shelf beyond the 200-nautical mile limit.It serves as the reference baseline for delineating the outer limits of the continental shelf under Paragraph 7:the connecting outermost fixed points must either have sedimentary rocks at least 1%of the shortest distance from such point to the foot of the continental slope(the Irish formula),or be no more than 60 nautical miles from the foot of the continental slope(the Hudberg formula).②See id.,art.76,4(a)(i)-(ii).The Irish formula prescribes delimitation by connecting fixed points with straight lines not more than 60 nautical miles apart,at each of which points the thickness of sediments is at least 1 per cent of the shortest distance from such point to the foot of the slope.③See id.,art.76,4(a)(i),7.Applying this formula,therefore,sedimentary rocks must measure at least 1 M thick at 100 nautical miles from the foot of the slope.The UNCLCS invokes“a principle of continuity”in implementing this formula,stating that:

(a)to establish fixed points a coastal State may choose the outermost location where the 1per cent or greater sediment thickness occurs within and below the same continuous sedimentary apron;and that

(b)for each of the fixed points chosen,the UNCLCSexpects documentation of the continuity between the sediments at these points and the sediments at the foot of the continental slope④UNCLCS,Scientific and Technical Guidelines of the Commission on the Limits of the Continental Shelf,CLCS/11,1999,8.5.3(hereinafter“Scientific Guidelines”).

The Hedberg formula involves drawing a line connecting points not morethan 60 nautical miles from the foot of the slope.①See UNCLOS,art.76,4(a)(ii),7.A State may apply the two formulas alternatively,i.e.,it may apply the Irish formula in certain portions of its continental shelf and the Hedberg formula in other portions,in a manner to maximize its continental shelf ranges.

The foot of the continental slope also plays a very important role in defining the width of the continental shelf.Article 76,Paragraph 4(b)of the Convention provides that,as a general rule,“in the absence of evidence to the contrary,the foot of the continental slope shall be determined as the point of maximum change in the gradient at its base.”②UNCLOS,art.76,4(b).But this paragraph only defines the foot of the continental slope in terms of gradient at the slope’s base,without providing an actual definition of the term“the foot of the continental slope.”③Duncan J.McMillan,The Extent of the Continental Shelf—Factors Affecting the Accuracy of a Continental Margin Boundary,Marine Policy,vol.9(issue 2),1985,p.149.Therefore,it is reasonable for states to use geologic and geophysical evidence in supporting their claims on the positioning of the foot of the continental slope. This requires consideration of the terms“sedimentary”and“rock”.However, the Convention does not provide precise definitions of the terms“sedimentary rock”and“the foot of the continental slope”,and this has created uncertainty in the interpretation of Article 76.④Id.,at 156.

B.Limitations on the Outer Limit of the Continental Shelf

Article 76,Paragraph 5 of UNCLOS limits the maximum width of the legal continental shelf to 350 nautical miles or 100 nautical miles from the 2,500 metre isobath from the baseline from which the breadth of the territorial sea is measured.The former standard(350 nautical miles)is purely based on distance,while the latter(100 nautical miles from the 2,500 metre isobath)is based on both depth and distance.The two standards can be applied selectively and separately to each part of the continental shelf.Therefore,in some cases, the outer limits of the continental shelf may be extended beyond 350 nautical miles.

C.Ridges

The most controversial issue on the identification of ridges in delimiting the outer limit of the continental shelf under Article 76 is how to distinguishsubmarine elevations from submarine ridges and deep ocean ridges.①Jongseong Ryu and Vladimir Kaczynski,Review on Some Aspects of Legal and Scientific Understandings Regarding Outer Continental Shelf Limits in the Arctic Ocean,KMI International Journal,vol.1(issue 1),2009,p.20.

Article 76,Paragraphs 3 and 6 involves three geomorphology concepts, namely the ridges on the deep ocean floor,submarine ridges and submarine elevations.②See Scientific Guidelines,7.1.2.The UNCLOS does not provide clear definitions of these terms.In its Scientific Guidelines,the UNCLCSindicates that the relationship between“the oceanic ridges”in paragraph 3 and“the submarine ridges”in Paragraph 6 is less than clear.Both terms are distinct from the“submarine elevations”in Paragraph 6.③See id.,at 7.1.3.The UNCLCS appears to provide the following simple distinction among the three concepts in its related technical documents:

[P]aragraph 3 refers to the deep ocean floor with its“oceanic ridges,”stating that they are not included in the submerged prolongation of the land mass of the coastal State.With reference to paragraph 1,this makes it clear that these oceanic ridges are not to be considered part of the continental shelf.“Submarine ridges”must be considered a more generic term than oceanic ridges and includes both the latter and ridges which have their origin in the continental margin but may extend into the area of the deep ocean floor.The provisions of paragraph 6 do not app ly to submarine elevations that are natural components of the continental margin,such as“plateaux,rises,caps,banks and spurs.”④Int’l Cooperation Dep’t of the Nat’l Oceanic Bureau and Office of Oceanic Reconnaissance Leadership Group,The Technical Document Collection of the Commission on the Limits of the Continental Shelf(Chinese-English),Beijing,2000,pp.134,58～59.

So are there oceanic ridges that are neither a deep oceanic ridges nor terrestrial oceanic ridges?

The term“oceanic”in Paragraph 3 refers to ridges that share geological characteristics or origins with the deep seafloor and its subsoil.There appears to be two ways in which a ridge may be classified as an oceanic ridge of the deep ocean floor.First,when an underwater ridge is located beyond the outer edge of the legal continental margin and shares geological characteristics and origin with the deep ocean floor,it is an oceanic ridge of the deep ocean floor. Second,when an underwater ridge is located within the continental margin but detached from the envelope of the foot of the continental slope and extends intothe deep ocean floor,it should be regarded as an oceanic ridge.①Ryu and Kaczynski,Aspects of Legal and Scientific Understandings Regarding Outer Continental Shelf Limits in the Arctic Ocean,supra note 13,at 11.Some submarine ridges that lie entirely beyond the foot of the continental slope and are either wholly within the deep ocean floor or around the outer edge of the continental margin,may have originated from the continental margin,but were later separated from it by geological crust movements.From a geological perspective,such ridges should not be classified as oceanic ridges because they do not share geological characteristics and origin with the deep ocean floor.However, since they lie beyond the foot of the slope over their full range,such ridges cannot become parts of the outer edge of the continental margin.In this respect, such ridges should be treated as an oceanic ridge in exactly the same manner under Article 76.②Id.,at 10.

Paragraph 6 excludes the ridges with typical oceanic characteristics from the continental margin using the maximum limit of 350 nautical miles.However,geological crust types cannot be the sole criterion in classifying ridges and submarine elevations into the legal categories of Paragraph 6 of Article 76.③See Scientific Guidelines,7.2.9.Rather,the determination should be based on scientific and legal considerations such as natural prolongation of land territory and land mass,morphology of ridges and their relation to the continental margin as defined in Paragraph 4, and continuity of ridges.④See id.,at 7.2.10.Therefore,geology alone appears to provide insufficient basis to distinguish“submarine ridges”from the“submarine elevations”that are the natural components of the continental margin.

In short,a“submarine ridge”is a ridge that is an integral part of the continental margin morphologically,but is different from the landmass of the coastal State partially or entirely.It also shares geological characteristics and origins with the deep ocean floor.At the same time,a“submarine ridge”must,at least in its landward part,be genetically linked with the continental margin and not belong to the deep ocean floor in its oceanic part.As it is difficult to define the details concerning various conditions,the CLCS states that it is appropriate to examine the ridge issue on a case-by-case basis.⑤See id.,at 7.2.11.

In addition,the Convention treats each type of geomorphology concept differently.According to Paragraph 6,the“100 nautical miles from the 2,500 me-tre isobaths”limit does not apply to submarine ridges,the maximum width of which is 350 nautical miles measured from the baseline.Submarine ridges within the 350 nautical miles limit qualify as continental margins,while ridges exceeding that limit do not.However,these provisions under Paragraph 6 do not apply to other submarine elevations such as plateaus,rises,caps,banks and spurs that are natural components of the continental margin.

Ⅱ.International Practice of Outer Continental Shelf Delimitation in the Arctic

Disputes over the Arctic are shifting from those regarding scientific expedition to those over resources.At present,disputes in the Arctic focus on the delimitation of the outer continental shelf and navigational control.Disputes over navigational control are not within the scope of this article.

To date,five coastal States surrounding the Arctic Ocean have made claims for outer continental shelf delimitation.Among these,Russia,Denmark and Norway have submitted applications for the outer limit of the continental shelf to the CLCS.①See also The United Nations Office of Legal Affairs/Division for Ocean Affairs and the Law of the Sea Website,at http://www.un.org/depts/los/index.htm,3 September 2009.Russia and Norway,which have already submitted their delimitation applications,and Denmark and Canada,which are preparing to submit their applications,each claim to have sovereignty over the Lomonosov Ridge on the Arctic seabed pursuant to the submarine elevation provisions of Article 76. The CLCS has already once considered the matter.②Robert Lee Hotz,The United States Threw Itself in the Fight for Contesting the Arctic,at http://www.cetin.net.cn/cetin2/servlet/cetin/action/HtmlDocument Action?baseid= 1&docno=320480,3 September 2009.In addition,the United States has also made its sovereignty claim over the Chukchi Sea platform under the same provisions.

A.Russia’s Submission and Responses from the International Community

1.Russia’s Application for the Extension of Its Outer Continental Shelf

In 2001,Russia became the first country to submit an application to the CLCS.Part of the application related to waters 200 nautical miles off the Arctic coast.③See Submission by Russian Federation to the CLCS in 2001,at http://www.un.org/ Depts/los/clcs_new/submissions_files/submission_rus.htm,3 September 2009.

Russia submitted its application to the CLCS on December 20,2001,seeking to extend its jurisdiction to the outer limits of its continental shelf,which covers an area the equivalent of Germany,France and Italy combined,extending 1,191,000 square kilometers in the Arctic Ocean.Most of the triangular area claimed lay beyond Russia’s 200-nautical mile EEZ.The specific provisions cited in Russian’s submission to the CLCS are unknown,as they are protected by the confidentiality rules of the“Rules of Procedure of the Commission on the Limits of the Continental Shelf”.But it appears from previously available public documents and research that Russia regarded the Lomonosov Ridge and the Mendeleev Ridge as submarine elevations constituting natural extensions of its continental margin.Thus,Russia’s claim is clearly based on Article 76’s provisions related to“submarine elevations”-namely,provisions that allow submarine elevations to extend the continental shelf beyond 350 nautical miles as long as the fixed points comprising the line of the outer limit of the continental shelf on the seabed comply with the“100 nautical miles from the 2,500 metre isobaths”rule.

However,Russia’s claim was denied by the CLCS.It has also been questioned by certain experts who pointed out that,under Russia’s argument,Canada could also claim jurisdiction of the Lomonosov Ridge based on its connection with the North American continent.Experts have predicted that Russia’s claim over the Lomonosov Ridge would ultimately terminate at the North Pole,for two possible reasons.First of all,the Russian-side continental plate happens to end at the North Pole.Second,Russia may wish to terminate its natural extension at the North Pole,in order to avoid conflicts with Denmark and Canada, and to gain their support for applying“sectoral division”to the Arctic Ocean seabed,as proposed in Russia’s 2001 CLCS submission.①Ryu and Kaczynski,Aspects of Legal and Scientific Understandings Regarding Outer Continental Shelf Limits in the Arctic Ocean,supra note 13,pp.16～17.

CLCS established a subcommittee to review the Russian submission.This subcommittee held several meetings in Spring 2002,and urged Russia to provide geological evidence to the CLCS proving that the Lomonosov Ridge and the Mendeleev Ridge are natural components of Russia’s continental margin.It then made a report to the CLCS.In June 2002,the CLCS adopted the subcommittee’s recommendations for Russia’s delimitation submission.Regarding the Barents and Bering Seas,the Commission recommended that the Russian Federation transmit the charts and coordinates of the delimitation lines tothe Commission once the maritime boundary delimitation agreements with Norway in the Barents Sea and with the United States of America in the Bering Sea enter into force,for they would represent the outer limits of the continental shelf of the Russian Federation extending beyond 200 nautical miles in the Barents Sea and the Bering Sea,respectively.①In early 2007,Russia and Norway entered into an“Agreement on the Delimitation of the Continental Shelf[in the]Barents Sea,”which would end the dispute over the 155,000-square kilometer“gray sea area.”See Guo Ping-qing,The Arctic in-fighting”,The Ocean World,issue 9,2007,p.24.As for the Central Arctic Ocean, the Commission recommended that the Russian Federation make a revised submission to extend its continental shelf in the region based on the findings contained in the subcommittee’s recommendations.②Fifty-seventh session,Agenda item 25(a),Oceans and the Law of the Sea,Report of the Secretary-General,Addendum,A/57/57Add.1(8 October 2002),para.41,at http:// daccess-dds-ny.un.org/doc/UNDOC/GEN/N02/276/16/PDF/N0227616.pdf? Open Element,21 November 2009.

2.Responses from the International Community

Five countries responded to Russia’s submission,including the United States,Canada,Denmark,Japan and Norway.③All five nations’notifications regarding Russia’s submission to the UNCLCS are available at http://www.un.org/Depts/los/clcs_new/submissions_files/submission_rus.htm,3 September 2009.With the exception of the U. S.,these countries only made comments on the overlap between the extension of the continental shelf proposed in Russia’s submission and their EEZ. Canada’s response is that neither the Russian submission on expanding its continental shelf beyond 200 miles,nor the UNCLCS’s recommendations thereon should adversely affect the continental shelf delimitation between Canada and the Russian Federation.④Notification from Canada,Ref No.CLCS.01.2001.LOS/CAN(26 Feb.2002),at http:// www.un.org/Depts/los/clcs_new/submissions_files/rus01/CLCS_01_2001_LOS__CAN-text.pdf,3 September 2009.Norway claimed that the unresolved delimitation issue in the Barents Sea should be considered as a“maritime dispute”for the purposes of Rule 5(a)of Annex I to the Rules of Procedure of the Commission.⑤Notification from Norway,Ref No.CLCS.01.2001.LOS/NOR(2 Apr.2002),p.2,at http://www.un.org/Depts/los/clcs_new/submissions_files/rus01/CLCS_01_2001_LOS__ NORtext.pdf,3 September 2009.Japan’s response was that for the Sea of Okhotsk the two countriesshould continue vigorous negotiations in a friendly atmosphere.①Notification from Japan,Ref No.CLCS.01.2001.LOS/JPN(14 Mar.2002),pp.1～2,at http://www.un.org/Depts/los/clcs_new/submissions_files/rus01/CLCS_01_2001_LOS __JPNtext.pdf,3 September 2009.Denmark remarked that it was not able to form an opinion on the Russian submission because of the lack of more specific data to make a qualified assessment and its status as a non-party to the UNCLOS.②Notification from Denmark,Ref No.CLCS.01.2001.LOS/DNK(26 Feb.2002),p.1,at http://www.un.org/Depts/los/clcs_new/submissions_files/rus01/CLCS_01_2001_LOS __DNKtext.pdf,3 September 2009.However,such absence of opinion did not imply Denmark’s agreement or acquiescence to the Russian Federation’s submission.③Id.

The U.S.is the only country to refer to the scientific and technological factors in its response to the Russian submission.Regarding the Lomonosov Ridge,the U.S.claimed that“the ridge is a freestanding feature in the deep oceanic part of the Arctic Ocean Basin and not a natural component of the continental margin of either Russia or any other State.”④Notification from the United States of America,Ref No.CLCS.01.2001.LOS/USA(18 Mar.2002),p.3,at http://www.un.org/Depts/los/clcs_new/submissions_files/rus01/ CLCS_01_2001_LOS__USAtext.pdf,3 September 2009.More detailed statements were provided with respect to the Alpha-Mendeleev Ridge,saying that“the ridge is a volcanic feature of oceanic origin...It is not part of any State’s continental shelf.”⑤Id.,at 2.In order to support these statements,the U.S.provided specific bathymetric,aeromagnetic,seismic,and bedrock collection data with its response.

B.The Practice of Other Arctic States

Following on the heels of Russia’s submission,Norway submitted its claim to extend its continental shelf in the Arctic Ocean,the Barents Sea and the Norwegian Sea to the UNCLCS in November 2006.⑥Continental Shelf Submission of Norway in respect of areas in the Arctic Ocean,the Barents Sea and the Norwegian Sea,pp.10～12,at http://www.un.org/Depts/los/clcs_ new/submissions_files/nor06/nor_exec_sum.pdf,3 September 2009.Norway acknowledged that there existed lingering issues with neighboring countries on bilateral continental shelf delimitation in this area.These include overlapping claims among Norway,Iceland and Denmark—the Faroe Islands for the continental shelf extending beyond 200 nautical miles in the southern part of the Banana Hole;renewed discussions among Norway,Denmark and Greenland on the delimitationof the continental shelf beyond 200 nautical miles in the area between Greenland and the Svalbard archipelago;and the delimitation of the outer continental shelf beyond 200 nautical miles between Norway and Russia in the Barents Sea Loop Hole and in the Western Nansen Basin in the Arctic Ocean.①Id.,pp.10～12.

Denmark announced,in September 2004,that a 1240 km-long underwater mountain range(the Lomonosov Ridge)under the Arctic was joined with its land(Greenland),and that Denmark had an interest in the Arctic resources under the UNCLOS.②Yue Ning,The Arctic Belongs to the Mankind as a Whole,Oriental Business,at http:// www.oribiz.cn/biznews/2007-10-8/2007-10-08-24.html,18 August 2009.In response to Russian’s flag-setting in the Arctic in 2007, Danish researchers set off to the Arctic on August 12,2007,and in a month collected geological data from the Lomonosov Ridge to map the seabed under the Arctic ice cap.Denmark has also planned Arctic expeditions for 2009 and 2011, mainly to study whether the Lomonosov Ridge was geographically connected to Greenland through the collection of geological data,in order to prove that the Arctic belongs to Denmark.Denmark became a member state to the UNCLOS in 2004,so Denmark also plans to make a submission to claim an extension of its continental shelf in 2014.③Denmark Will Dispatch Its Vessel to the Arctic And Prove the Lomonosov Ridge Belongs to It,at http://news.qq.com/a/20070811/001013.htm,18 August 2009.Meanwhile, Denmark had made its submission with respect to the Faroe Islands area.See Submission, at http://www.un.org/Depts/los/clcs_new/submissions_files/submission_dnk.htm,18 August 2009.

Canada has also claimed its jurisdiction over the Arctic region based on the Lomonosov Ridge’s connection with the North American continent and the Greenland plate.In August 2008,Canada issued an official announcement that the Lomonosov Ridge joins with the North American continent and the Greenland plate,according to the scientific investigation jointly accomplished by Canada and Denmark,and does not belong to the Russian EEZ,as Russia had claimed.On this basis,Canada should have economic rights to the abundant oil resources in the Arctic.The Canadian government plans to make its submission to the UNCLCS before the end of 2013 to formally claim jurisdiction over this area.Canada became a member state to the UNCLOS in 2003,and so it must make its submission of the outer continental shelf delimitation within 10 years.

In this battle for the Arctic,the U.S.is unwilling to be a bystander.In addition to its resistance against the expansion ambitions of Russia and Canada,the U.S.is also attempting to expand its own continental shelf.The U.S.has set its sights on the Chukchi Sea and the Beaufort Sea.The U.S.believes that the Chukchi Platform is a natural component of the Arctic shelf in Alaska,and claims that it has jurisdiction over an area under the Arctic Ocean that is larger than the state of California.On August 17,2007,the U.S.Coast Guard icebreaker,“Healey”,embarked for the North Pole for a four-week mapping assignment.According to the U.S.media,the main task of this voyage was to map the seabed of the northern Chukchi crown and to ascertain the extension of the Northern Alaska continental shelf so as to evaluate the possibility of merging this area into the American continental shelf,and to prepare the registry of boundary data with the UNCLCS.This mapping assignment followed similar assignments in 2003 and 2004.U.S.Scientists said that the voyage had been planning for three years and was part of an ongoing long-term project.①The U.S.Coastal Guard(USCG)is Bound for the Arctic to Map,The Ocean World,vol.9, 2007,p.4.

Ⅲ.Trends and Effects

UNCLOS Article 76,paragraph 6 is extremely attractive to coastal states claiming outer limits of their continental shelves beyond the 200-nautical miles EEZ because the provision permits extension of the continental shelf beyond the 350 nautical miles based on submarine elevations.The fact that Arctic coastal states such as Norway,Denmark,Canada and the United States followed Russia’s lead in claiming the extension of the outer continental shelf using the Arctic Ocean Ridge is proof of this.In other regions,a number of other nations may also raise claims to extend their continental shelves beyond 200 or 350 nautical miles under the UNCLOS provision on submarine elevations.②Ryu and Kaczynski,Aspects of Legal and Scientific Understandings Regarding Outer Continental Shelf Limits in the Arctic Ocean,supra note 13,at 21.

At the same time,the claims put forth by these states will inspire heated debates within the international community.Some scientists believe that,in order to extend the outer limits of its continental shelf,a coastal state must prove that the extended area in question shares similar geological structures with that state’s territorial land.For example,Russia,Canada and Denmark all want to support their claims for extending the continental shelf by collecting scientific evidence connecting the Lomonosov Ridge with Northern Siberia,the North A-merican continent,and Greenland,respectively.But it is nearly impossible toscientifically prove that the Lomonosov Ridge is linked to North America,Asia and Europe at the same time.①Canada Provides Proof for the Purpose of Contention in the Arctic,at http://m1st.cn/ www/doc_on_web-sm-0-ci-401-vi-1255-rc-0-cd-47489.html,18 August 2009.

Under these circumstances,how the UNCLCS deals with the geological data relating to disputed ridges such as the Lomonosov Ridge becomes very important and significant.Article 76 of the UNCLOS does not provide precise definitions for the terms“submarine elevation”,“submarine oceanic ridge”and“deep oceanic ridge”.This leads to uncertainty in the delimitation of the outer edge of continental shelves,②Mc Millan,The Extent of the Continental Shelf—Factors Affecting the Accuracy of a Continental Margin Boundary,supra note 11,at 156.which allows coastal states to put forth their claims.Objectively speaking,the provisions of the UNCLOS need precisely this kind of international application and related international judicatory precedents to enhance and confirm their meaning,thus making the Convention’s provisions the basis of international customary law.As such,the opinion of the UNCLCS takes on significance for not only the Arctic Ocean,but worldwide as well.

It can be said that Russia’s actions and the UNCLCS’s consideration of and conclusions on Russia’s delimitation submission will undoubtedly spur coastal countries’preparation and applications for the delimitation of their outer continental shelves.

Although the Arctic countries’claims for the outer continental shelf are only one aspect of Arctic affairs,it reflects the complexity of the political situation in the Arctic.As the UNCLOS established the systems of high seas and international seabed areas,all of mankind has equal rights to benefit from the international seabed areas.The reduction of the international seabed area in the Arctic will affect the common interests of the international community,including China,in such aspects as natural resources,environment,navigation and scientific research,etc.Up to now,there has been no evidence to prove that that any country’s continental shelf extends to the North Pole under the UNCLOS, so the North Pole and its surrounding area does not belong to any particular country and is considered to be international territory,and the ice-covered Arctic Ocean is international waters,subject to the supervision and manage-ment by the International Seabed Authority.①Tian Xingchun,The Crazy Tussle in the Global Northern End:Flag-Inserting Arouses Different Responses,at http://world.people.com.cn/GB/89881/97034/6073364.html, 10 June 2009.However,if the Arctic states’claims regarding their outer continental shelves succeed,the international seabed areas in the Arctic will be drastically reduced.For example,if Russia’s claim for extending the outer limit of its continental shelf proves successful, Russian will obtain the rights to the triangular area between the North Pole and Russia’s Northern coastline,extending from the Kola Peninsula to the Chukchi Autonomous Region.This area spans 120,000 km2,and is equivalent to Italy,Germany and France combined.Further,it would border the underwater jurisdiction of Denmark’s Greenland,Canada,and perhaps even the U.S. Russia will thereby obtain the equivalent of 10 billion tons of fuel oil and gas reserves.②The Fighting of the Eight Countries around the Arctic:Russia Does Not Hesitate in Taking Extreme Measures at the Critical Moment,at http://sanmen.zjol.com.cn/news/ 2009/206380.shtml,18 November 2009.This situation will inevitably affect the international community’s right to fairly benefit from the Arctic.

Ⅳ.Lessons for China

The Arctic is of actual and potential value to China in terms of climate,resources,and many other aspects,as is already being studied by scholars.As the future treatment of the Arctic will affect the global political situation,it will surely also affect China,and we must pay close attention to this issue.③Yang Liangqing,Wang Mengjie,What Does Ice Melting in the Arctic Mean for China? Theory and the Contemporary Era,issue 9,2008,p.48.We should recognize the possible adverse effects we may face in the region,and reflect on whether we have properly protected our rights in the Arctic.Further, we should take a strategic perspective in including the Arctic as an important component to our marine rights strategic planning,and take practical measures to prevent and address the possible passive position we may face in our future involvement in the Arctic.I believe that the recent disputes over the Arctic outer continental shelf provide us with the following lessons:

A.From an oceanic strategy perspective,it shows that China should pay attention to its interests in the Arctic.

China’s interests in the Arctic mainly involve natural resources,environ-ment,scientific research and navigation.①Guo Peiqing,the great power should have global strategy which must include the Arctic, Lookout News weekly,issue 27,2009,p.64.In this age of globalization,interests in the Arctic resources are continuously allocated to peripheral countries through the industrial chain.The exploitation and transportation of oil and gas resources provides opportunities for the infusion of foreign capital;giving China at least indirect interests in the Arctic resources.The Arctic has profound influence on our country’s temperature and precipitation,making it imperative to study its operation further.The fact that many countries have already invested heavily in setting up research stations in the Arctic and furthering their scientific research in the Arctic Ocean underscores the scientific value of the Arctic. The resource holding most practical promise for China is the new navigational route to be opened in the Arctic.This is the shortest route connecting Asia,Europe,and the Americas.Currently,the majority of China’s foreign trade is routed through the Malacca Strait and the Suez Canal.However,this route has been controlled by powerful national interests and plagued by pirates,thus decreasing the level of safety and increasing the cost of utilization.Moreover,the traffic through the Suez Canal is near capacity,causing serious congestion in recent years.Arctic routes can alleviate these problems.As noted above,if the Arctic states succeed in their claims to extend their outer continental shelves, the international community’s and China’s right to fairly benefit from Arctic resources will be weakened.Therefore,China should form its strategies in protecting its maritime interests from a global perspective,and include the Arctic region in its strategic analysis.It should also emphasize and strengthen its research in the Arctic Ocean,in order to protect the country’s maritime interests.

B.From the perspective of safeguarding and realizing China’s maritime strategic interests,it argues for increasing and realizing the country’s access to common international interests.

Summarizing the current Chinese scholarship on the maritime rights and interests,I believe that the legal system of China’s maritime rights and interests should include four parts,namely,the basic legal regime of marine rights and interests,the legal system on marine resources and environmental rights and interests,the legal system on safeguarding the interests of maritime safety, and the legal system of maritime law enforcement and marine jurisdiction.For completeness,we should also include legal systems for the rights and interests regarding islands,mineral resources of the international seabed area,the highseas,and marine scientific research.①Gui Jing,Research on the National Legal Regime of Marine Rights and Interests-from the Perspective of Systems Building,Ocean Development and Managemen t,vol.1,2010, pp.22～26.Under international law,the international seabed area is the common property of all mankind,owned by the entire international community,and managed by the International Seabed Authority on behalf of all mankind.The Arctic region consists of high seas and international seabed areas,and the right to its development is shared by all nations.

China’s influence on legal affairs in the Arctic is rather limited,mainly involving scientific research.However,this can provide a point of entry for China,if we continuously add to our Arctic experience by actively promoting cooperative scientific expeditions in the Arctic and participating in the process of international rulemaking.Meanwhile,China can exercise its role and influence in international affairs as a powerful nation,clarifying our claims and positions on the issue of the delimitation of Arctic continental shelves-without contradicting our positions on outer continental shelves in other contexts and emphasizing the Arctic’s status as the high seas and international seabed areas,and the resultant equal rights to the region.②Dong Yue,Arctic Dispute and Its Solutions Under the Law of the Sea,Journal of Ocean University of China(Social Sciences Edition),vol.3,2009,pp.6～9.Through these various avenues,China can increase its influence on Arctic affairs,strengthen its decision-making powers in the Arctic region,and advocate on behalf of other non-Arctic states.

C.From the perspective of the operation of international law of the sea,there is a legal basis for China’s maritime rights in the Arctic.

International conventions are a part of our legal system.This is particularly true for law of the sea,which is inherently international in nature.The law of the sea plays an important role in the formation of international oceanic order by providing for maritime rights and interests.Therefore,it is possible and necessary to protect our country’s maritime rights through avenues available under international law of the sea regime.For this reason,we should seek out the legal basis under international law that may be related to China’s exercise of Arctic maritime rights,study these provisions and conventions in depth,and make full use of them.

Currently,the main international conventions supporting China’s rights and interests in the Arctic are the UNCLOS and the 1920 Svalbard Treaty.③Dong Yue and Song Xin,A Study on International Law of the Sea Concerning Arctic Scientific Investigation,Journal of Ocean University of China,vol.4,2009,pp.11～15.The 1982 UNCLOS set forth the systems of high seas and international seabed areas,providing the most important legal basis for China’s development and use of resources and conduct of scientific research expedition in the Arctic region. The definition of the outer limits of the continental shelf set forth in Article 76 is not only important to party states who have signed and ratified the Convention,but also to the rest of the world,because it may become the bases of customary international law through practice.①M(fèi)c Millan,The Extent of the Continental Shelf—Factors Affecting the Accuracy of a Continental Margin Boundary,supra note 11,at 148.Therefore,we should pay close attention to the delimitation of outer continental shelves in the Arctic,thereby staying up to date with the development of Article 76.The 1920 Svalbard Treaty remains the only intergovernmental treaty related to the Arctic region.In 1925,China became a party state to that treaty.Party states have the right to exploit resources and conduct scientific research around the Spitsbergen Islands.However,aside from the former Soviet Union,which mined coal in the area,most other party states have not pursued their economic interests here.In order to use related treaties as a point of entry into pursuing our Arctic interests,we need to study and analyze the spirit,content,and corresponding rights and obligations of these treaties in depth.On the basis of respect for international law,China can pursue its rights under treaties related to the Arctic,and take an active position in protecting and realizing our national interests in the region.

(Senior Editor:Tzung-lin FU Editors:Stephen Pire;YANG Si-si)

*Gui Jing,female,holds a Master’s Degree and currently serves as an Assistant Research Fellow with National Marine Data and Information Service,and studies maritime intelligence and maintenance of maritime rights and interests.Email:jingui59167@yahoo.com.cn