Last Tuesday, the United States unilaterally – through an official declaration – asserted its rights (the word can also be put in quotation marks) to a significant piece of shelf in the Bering, Chukchi and Beaufort Seas. The area of the declared shelf is about 1 million square kilometres.
In the diagram, this is how the Americans think the shelf sector they are targeting looks like. The American sector is highlighted in brown, the Russian sector in white, the Canadian sector in blue, and the Danish sector in blue.
In theory, the US is entitled to at least part of this increment – the 1982 UN Convention on the Law of the Sea (Article 76) provides for this. A state party to the convention may establish shelf boundaries beyond the 200-mile zone along the outer limits of the submarine margin of the mainland. It is known that the Americans have conducted relevant surveys and believe their application is proven.
The problem, however, is that Washington has not ratified the convention. And this makes their claim null and void in the international legal sense.
Yes, the Americans claim that they are de facto complying with the convention when it benefits them as a sum of customary law. Actually, even the said declaration relied on the provisions of the convention. But there is no consensus among other countries on whether a non-aligned state can extend its continental shelf.
In addition, the convention provides a clear procedure for such cases: a state’s application must receive approval (a recommendation, in fact binding) from the special Commission on the Limits of the Continental Shelf. In other words, the US should have: a) ratified the convention b) submitted a reasonable application to the Commission and c) humbly waited for the decision, which could come years later, and even then after the proceedings with Canada, which also claims the Arctic shelf.
But the Americans have gone the way of unilateral declarations. They do not intend to limit themselves to external instruments, not excluding the UN.
What can be said about this?
As it seems at first approximation, our interests are not directly affected by this step. The Americans do not go beyond the “Baker-Shevardnadze” line. Hypothetically, their statement creates a certain possibility of talking to the US about recognition of their acquisitions in exchange for something, but this possibility in the current conditions is almost ghostly.
On the other hand, the Americans’ move is one of the next symptoms of the erosion of international law and the system of international treaties. The world continues to fragment, including in terms of international law. The further we go, the more we use “our” versions of international law. Add to this the global crisis of trust in relations between the players and you get a rough image of the future that is crawling towards us.
What does this mean? That talk of Russia’s withdrawal from the aforementioned convention – or the exclusion of the Arctic from its norms – is beginning to become less abstract. If international law is openly replaced by unilateral declarations, why should we limit ourselves? After all, “what is possible for one is possible for all.”
Yes, it is easier and better to live in a legal international community than in a “wild” one. But it seems that the space of choice in this matter is rapidly narrowing.
Captain Arctic TG-channel