The Beaufort Sea is a part of the Arctic Ocean located northeast of Alaska and northwest of Canada. (Screenshot from Google Maps)
Canada and the US will create a joint task force to undertake negotiations on the maritime boundary in the Beaufort Sea, including their overlapping continental shelf claims in the central Arctic Ocean. Law of the Sea expert Tore Henriksen comments on the US possibly determining the outer limit of its shelf without having ratified UNCLOS.
Last week, Canada and the United States announced that they will establish a joint task force to negotiate their maritime border in the Beaufort Sea, as well as their overlapping claims for an extended continental shelf in the central Arctic Ocean.
The area in question is located north of the US state of Alaska and the Yukon and Northwest Territories in Canada.
“In a rapidly changing Arctic marked by new challenges and increased strategic competition, the region has become a growing focus for the United States and Canada," the countries state, adding that the task force is being established to further their cooperation in the region.
“The task force is expected to begin negotiations this fall and reflects the commitment of the United States and Canada to clarify our shared northern boundary through cooperative bilateral negotiation and meaningful engagement with state, territorial and Indigenous partners."
“Canada and the United States will work collaboratively toward a final agreement that will provide clarity on our Arctic maritime boundaries, bearing in mind the responsible conservation and sustainable use of Arctic resources for the mutual benefit of Americans and Canadians, including Indigenous Peoples,” the statement reads.
· The dispute has its background in a treaty between Russia and Great Britain of 1825, which was inherited by the USA in 1867 and Canada in 1880, respectively. The wording of the treaty is subject to different interpretations.
· Canada asserts that the treaty establishes both a land and a maritime border at the meridian line of the 141st degree.
· The US, however, holds that the treaty only establishes a land border and that the boundary in the Beaufort Sea should follow an equidistance line.
US and Canada's overlapping maritime claims in the Beaufort Sea. (Source: Andreas Østhagen and Clive H. Schofield 2021, The Polar Journal)
The American claim to rights to the continental shelf in the Arctic Ocean overlaps significantly with Canada's.
According to the UN Convention on the Law of the Sea (UNCLOS), coastal states that believe they have a continental shelf extending beyond 200 nautical miles from the coast must document this. This is done before the Commission on the Limits of the Continental Shelf (CLCS) in New York.
The Commission carries out scientific assessments of submitted data and other material and make recommendations to the 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.
The US Congress has still not ratified UNCLOS, and the US has thus not submitted documentation for its claim to this Commission.
Canada submitted information on its continental shelf limits in the Arctic Ocean to the Commission in 2019. In 2022, Ottawa filed an addendum to extend its original shelf claim.
Maritime zones as defined by the UN Convention on the Law of the Sea. (Source: Anders Skoglund/the Norwegian Polar Institute 2020)
Although the United States has not acceded to the UNCLOS, it considers that the Convention generally reflects customary international law binding on all countries.
In its aforementioned announcement, the United States maintains that it has delineated the outer limits of its extended continental shelf in accordance with the relevant provisions of UNCLOS (Article 76) and the scientific and technical guidelines of the CLCS.
Regarding the delimitation of the shelf vis-à-vis the United States, Canada expects to follow the process set out in the UNCLOS even though the United States is not a party to it, said Grantly Franklin, a spokesperson for Global Affairs Canada, to CBC in January.
"Canada and the US are in frequent communication with regards to the continental shelf in the Arctic and have expressed their commitment along with other Arctic states to the orderly settlement of overlapping claims," Franklin stated.
GALLERY: Canada's claim for an extended continental shelf in the Arctic Ocean by 2022. This overlaps with claims from Denmark (Greenland), Russia, and the USA. (Source: Government of Canada) >
The USA's claim for an extended continental shelf in the Arctic Ocean by 2023. This overlaps with Canada's claim, but not with Russia's. (Source: US Department of State)
Tore Henriksen, Professor of Law, UiT The Arctic University of Norway. (Photo: UiT)
Delimitation of the continental shelf between states with opposite or adjacent coasts is regulated by Article 83 of UNCLOS.
"The starting point in this article is that the states involved are obliged to resolve the disagreement about the drawing of the border in a peaceful manner and that they have freedom of agreement when following the sources of international law," writes Tore Henriksen, Professor of Law at UiT The Arctic University of Norway with expertise in the Law of the Sea, to High North News.
"Among other things, the practice of international courts will indicate which arguments and considerations are relevant and can be emphasized," he elaborates.
Henriksen clarifies that determining the continental shelf's outer limit and agreeing on the delimitation of the continental shelf between coastal states are two separate processes.
"One question is whether the Commission's scientific assessments relating to the extent of the shelf have any significance for the demarcation of the border in the case of overlapping claims. There is also a question about the order: Do the coastal states first have to submit claims to the commission before starting border negotiations?" he points out and continues:
"I am not very familiar with the practice in this field. There have been cases before international courts where both solutions have been chosen. For example, Norway, Iceland, and Denmark agreed on how a possible overlap between their continental shelves in the North Atlantic should be delimited before they received recommendations from the Commission."
The three countries signed a negotiation protocol on delimitation («Agreed Minutes») in 2006. After Norway received its recommendation in 2009 and Iceland and Denmark in 2014 and 2016, the assumption of an overlapping shelf was confirmed. They then negotiated agreements in line with the aforementioned protocol and signed them in 2019.
As Canada has submitted documentation to the Commission, it may wish to wait for its recommendation before entering into an agreement with the USA on the delimitation of the continental shelf, Henriksen points out.
"It is difficult to say when this recommendation may come. I do not see that any sub-commission has been established to assess Canada's information. The commission has received close to 100 inquiries – which is far more than expected. So there is probably a certain delay in the processing," he notes.
The professor of law also refers to a diplomatic note from the United States to the Commission regarding Canada's claims.
"This states that the USA does not object to the Commission considering the information from Canada and make its recommendation on the basis of this documentation, to the extent that such recommendations are without prejudice both to the delineation of the United States’ own shelf and to matters relating to delimitation between Canada and the United States.”
"As far as I know, Canada and the United States have cooperated to obtain the information necessary to determine the extent of the shelf beyond 200 nautical miles from both states. So it could be that they have an agreed understanding of how far the shelf extends and how their claims overlap," adds Henriksen.
Canada's willingness to cooperate with a country outside of UNCLOS may weaken the treaty. Still, it is politically smart, as an American ratification is unlikely to come any time soon, commented Rob Huebert, Professor of Political Science at the University of Calgary, to the CBC in January.
The professor of law at UiT The Arctic University of Norway emphasizes that the implications are complex:
"If Canada and the US enter into an agreement on the delimitation of the continental shelf based on the criteria in the UNCLOS – and the US gets to determine an outer limit of its shelf without being a party to the convention and thus bypassing the Commission on the Limits of the Continental Shelf – it may be a point that the US gets the benefits without the obligations."
"At the same time, it is important that the world's most powerful maritime nation, which is the USA, essentially follows the rules of the Law of the Sea," Henriksen points out.
