Conquering the sea

Translated by Angela Tagliafierro

It’s no surprise to gain weight during the Christmas holidays. It is more infrequent to bring the process forward to the beginning of December, before legitimizing panettone and similar. Something different is to put on a few kilos, another one is increasing one’s size of an area similar to that of Egypt. What is more, no one points it out.

On December 2023, the United States announced the most significant broadening since the purchase of Alaska in 1867, with no guns and no stars-and-stripes flags. All in the general indifference. Or almost.

How is it possible we did not notice it?

Simply, Washington is not claiming a land as it is commonly understood, but the extension of the American land under the sea, named continental shelf.

The Department of the State made the geographical coordinates of the outer borders of the so-called extended continental shelf known. Even though it passed quite secretly, the publication may lead to meaningful implications in terms of geopolitics and International Law, especially for the arctic region. 

Rights and borders

The current classification of the sea areas is listed in the United Nations Conventions on the Law of the Sea (1982), commonly known by the acronym UNCLOS.

According to the treaty, a coastal state exercises their sovereignty on the territorial waters up to 12 nautical miles from the shoreline. From that limitation to 200 nautical miles there is the exclusive economic zone (EEZ), where a country has the sole right to exploit natural resources, including non-living resources within its continental shelf. However, if the latter exceeds the EEZ, it becomes an extended continental shelf (ECS) and the coastal state may claim economic rights up to a maximum of 350 nautical miles from the “normal baseline” – namely, the “low-water line along the coast” (Art. 5). Further, you will find the international waters, where is in force the universal right to navigation, overflight, fishing, scientific research…

As Professor Abbie Tingstad highlights, while a coastal country can enjoy its own EEZ without a formal declaration, the matter becomes harder for the ECS. The art. 76 of the UNCLOS establishes that a country can claim exclusive rights on the resources placed on or under the seabed over the 200 nautical miles. The country must prove and delimit the natural extension of their own extended continental shelf through bathymetric mapping — that is, a mapping able to measure and represent the several sea depths.

The research

This mapping is what the United States presented at the end of 2023 in an Executive Summary. The collection of data started in the far 2003, when the greatest effort ever made by Washington was beginning to trace a map of the High American Sea.

The result describes an extended continental shelf of around a million of square kilometres compared to Egypt, indeed. It covers seven regions: Arctic, Atlantic, Bering Sea, Eastern and Western Gulf of Mexico, Mariana Islands, a volcanic archipelago in the Pacific Northwest, and Pacific. In light of this, the summary also lists the countries with which the United States share sea borders, already established or still unsolved: allies like Canada and Japan, partner like Mexico, and also rivals like Cuba and Russia.

More than half of the ECS identified by the study is supposed to be placed in the Arctic, where the American extended platform reaches the size of California.  Not a tiny plot of land, especially in a region more and more important for what concerns the navigation and the extraction of hydrocarbons, mostly thanks to the polar ice melting.

UNCLOS: yes or no

The American Summary explicitly refers to the art. 76 of the UNCLOS. Yet, the United States is still absent par excellence in the Convention, which counts 169 contracting parties today, the European Union included.

As analysed in a previous article, the first American hesitations towards the treaty arose under the Reagan Administration. They deal with the fear of losing their sovereignty and rich economical opportunities in the name of an increasing globalization. These worries were the focus of the renegotiations of the Convention in the nineties, gaining the favour of the Clinton Administration.

Yet, in 1994, UNCLOS became law without the American ratification. Almost thirty years later, Washington has not subscribed to the international treaty, despite the will of several administrations, including the current one. It is still missing the approval of the two-thirds of the Senate demanded by the Constitution (art. II, Section 2) 2).

In spite of not being a contracting party, de facto the United States keeps applying the Convention and still considers most of it as a reflection of the Customary International Law.  

Customary International Law

The Customary International Law is a set of binding rules not written in an official Chart; they are the result of general and established customs, accompanied by a sense of legal obligation.

Differently from the treaty law, the customary law is not-negotiated, unwritten and universal. The latter, in particular, is supposed to give the customary laws an erga omnes validity: it means that it can be applied 'to everyone'.

If the UNCLOS measures were really an expression of the customary law, then they would be valid not only for the contracting parties of the treaty, but for all the actors of the international Law, United States included.    

Cherry-picking

However, at this point here comes the accusation moved to Washington of choosing carefully the UNCLOS norms believed to be applicable to everyone, without subscribing to the whole treaty. So doing, it is not exposed to those duties the Republican senators contrary to its ratification oppose to.

It seems that the possibility for a coastal country to exercise its own sovereignty on the continental shelf has effectively imposed as a customary law, reflected in the Art. 77 of the UNCLOS.

It is more controversial, whether the same applies to Art. 76 of the UNCLOS on the definition of continental shelf, mentioned in the American Executive Summary. In particular, the pivotal element is the paragraph 8, which states as below:

“

Information on the limits of the continental shelf beyond 200 nautical miles from the baselines […] shall be submitted by the coastal State to the Commission on the Limits of the Continental Shelf […] the Commission shall make recommendations to coastal States on matters related to the establishment of the outer limits of their continental shelf. The limits of the shelf established by a coastal State on the basis of these recommendations shall be final and binding.

”
- UNCLOS, Art. 76, par. 8

If this measure was a customary law, the United States would be obliged to present the Summary to the Commission. Meanwhile, the limitations to the American ECS would be established permanently and bindingly to everyone, including the UNCLOS contracting parties, with territorial claims partially super imposable to the States, like Canada, Japan, Bahamas, and potentially Russia, too.

However, it is still hard to support the idea that the paragraph 8 is part of the customary law. As much as they claim to be ready, today the United States has not yet submitted their result to the Commission on the Limits of the Continental Shelf (CLCS), aware of the potential objections by some UNCLOS countries.

A feasible way forward?

In the words of the Doctor Ekaterina Antsygina, from a practical point of view, “the international community would probably benefit more from having the outer limits of the USA examined by the CLCS experts rather than established unilaterally with no external revision.”

Yet, the professor Tingstad warns that if the USA does not ratify the UNCLOS, allies and opposants of Washington may read the Summary as an attempt to circumvent the norms of the International Law of the Sea, dodging the undesired ones and observing those favourable as the expression of the customary law. “In a world of difficult choices – she ends — today’s announcement provides a broken solution.”

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