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The United States’ Extended Continental Shelf and its Obligations under Article 82 of UNCLOS

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Introduction

In December 2023, the United States (US) Department of State released an Executive Summary with information about the outer limits of its extended continental shelf (ECS).

Recently, both Russia and China reacted to this development. Their reactions rejected the notion that the US could claim an ECS without acceding to the United Nations Convention on the Law of the Sea (UNCLOS). However, given that the US may not become a Party to UNCLOS in the near future, these reactions raise the question whether there are other ways that States Parties could respond to the US that meet the interests of both the US and the Parties to UNCLOS.Despite not being a State Party to UNCLOS, the US interprets Article 76(1)-(7) as reflecting customary international law and thus binding upon all nations (Executive Summary, at p.6). The Executive Summary further specifies that the US outer limits were established in accordance with the relevant provisions of UNCLOS (primarily referring to the formulas and constraints established by Article 76) and the Commission on the Limits of the Continental Shelf (CLCS) Scientific and Technical Guidelines (at p.6). The US has prepared information on a potential submission to the CLCS, a body created by UNCLOS to consider submissions on the outer limits of States’ continental shelves. Although the US would have an obligation to submit the data if it accedes to UNCLOS, the US ‘is also open to filing its submission package with the Commission as a non-party to the Convention’ (Executive Summary, at p. 6).

Questions, however, arise about the U.S.’s ability to submit data to the CLCS and to define final and binding outer limits pursuant to Article 76(8). Furthermore, the reliance of the US on the provisions of Article 76(1)-(7) raises another important question about the status of Article 82 of UNCLOS. This article requires coastal States exploiting non-living resources of the continental shelf beyond 200 nautical miles (M) to make payments or contributions in kind of up to 7% on production in those areas to States Parties to UNCLOS, distributed through the International Seabed Authority on the basis of equitable sharing criteria. To date, no States have made such payments because there has not been any qualifying exploitation beyond 200 M, making it difficult to argue that these provisions are customary international law. Nor has the US made any statement indicating it considers itself bound by Article 82. However, the provisions concerning the ECS in Article 76 were agreed upon only with the inclusion of Article 82 in UNCLOS, as explained further below. Therefore, if the US relies on Article 76(1)-(7) of UNCLOS in establishing its outer limits, what obligation (if any) would it owe under Article 82?

If States do not comment on the release of US outer limits, this may mean they lose an opportunity to establish a link between Articles 76 and 82. In light of this, we argue that States should consider making a response commenting on their view of the US’ obligation under Article 82. We also argue that Parties to UNCLOS might consider allowing the US to use the process of delineation involving the CLCS in return for agreeing to apply Article 82.

CLCS and Non-Party States to UNCLOS

Article 76(8) obliges States Parties to submit data on the outer limits to the CLCS. It is highly unlikely that Article 76(8) is customary international law, primarily because it refers to an institution established by UNCLOS (at p. 168), so these provisions naturally do not apply to the United States as a non-Party (Article 34 of the VCLT). However, does this mean that the US is precluded from submitting its data for consideration by the CLCS? While it might be argued that institutions created under a treaty are not available to non-Parties, there have been instances where non-Parties have engaged with the CLCS concerning State Party submissions without encountering opposition. From a pragmatic standpoint, the international community would likely benefit from having the US ECS outer limits scrutinized by the CLCS, rather than established unilaterally without any external evaluation. This will also provide clarity to the extent of the Area.

By signalling its willingness to file its data with the CLCS, the US is ‘testing the waters’ to assess international reaction. Any decision by the US to proceed with the CLCS submission prior to joining UNCLOS may largely depend on the potential reactions from States Parties to UNCLOS since there is no mechanism for non-Party States to access the CLCS under UNCLOS.

Establishment of Final and Binding Outer Limits by Non-Parties to UNCLOS

The US has taken the position that paragraphs 1-7 of Article 76 represent customary international law. It is not the purpose of this comment to take a position on that issue. Rather, if we accept that those paragraphs are custom, we need to consider Article 76(8) which allows States to establish limits based on the CLCS recommendations as ‘final and binding.’ Article 76(8) confers a benefit in providing certainty as against the State Parties to UNCLOS regarding the limits established following CLCS recommendations. The establishment of final and binding outer limits not only facilitates international recognition of States’ jurisdiction over the ECS but also strengthens States’ sovereign rights.

For the US to establish the outer limits as final and binding under Article 76(8), the provisions of Article 76(8) would need to be recognized as customary. However, there is insufficient state practice to support the status of Article 76(8) as a custom, thus, it is not applicable to the US. Moreover, we should distinguish between the option for non-Parties to submit data to the CLCS and the privilege of establishing final and binding outer limits. Thus, recognizing Articles 76(1)-(7) as customary does not automatically guarantee that the outer limits established in accordance with them (and based on the CLCS recommendations) are final and binding, a benefit explicitly offered to UNCLOS States Parties through Article 76(8). Therefore, even if the US were to file a submission to the CLCS as a non-Party and establish its outer limits based on the CLCS recommendations, it cannot invoke provisions on ‘final and binding’ of Article 76(8).

Inextricable Link between Articles 76 and 82

Another question is whether a non-Party State applying Article 76 is required to comply with Article 82. A key debate for States negotiating Part VI of UNCLOS was on the extent of the continental shelf. Many States resisted extending national jurisdiction beyond 200 M, advocating instead for resources beyond this limit to fall within the concept of the common heritage of humankind. The definition of the continental shelf emerged from a compromise, balancing the interests of States with wide continental margins and those arguing for a more restricted shelf extent. This compromise was only reached by incorporating Article 82, providing for payments in respect of the exploitation of ECS’ non-living resources. Thus, the right to delineate the outer limit of the ECS cannot be disconnected from the obligation to provide payments under Article 82. Ambassador Tommy Koh, in his closing statement to the Conference, stated ‘it is not possible for a State to pick what it likes and to disregard what it does not like. …[R]ights and obligations go hand in hand and it is not permissible to claim rights under the Convention without being willing to shoulder the corresponding obligations’(para. 47, at p.135). Judge Tuerk has commented that ‘there is an inextricable link between that Article [82] and Article 76 as both provisions constitute an essential part of the “package deal” approach underlying UNCLOS’ (at p. 239). The interconnection of Articles 76 and 82 is also emphasized by some nations.

It is hard to argue that Article 82 reflects customary international law, given that no State has made payments under this provision. The US has been very careful not to imply that Article 82 is customary international law, although official statements have hinted at the interconnection between Articles 76 and 82.

It has been acknowledged that any argument that the US is obliged to comply with Article 82 would require creative, non-traditional, legal analysis, relying on the package deal to argue that any conclusion that Article 76(1)-(7) is custom relies on finding Article 82 is also binding. McDorman pointed out that, if the use of ‘coastal State’ in Article 76(8) can provide authority for non-Parties to make submissions to the CLCS, then the use of ‘coastal State’ in Article 82 should equally apply (at p. 180). He also suggested that the obligation might arise from an obligation of cooperation (at 179). Mossop has considered whether the idea of Article 76 and 82 being an ‘indivisible regime’ (para. 139) could lead to such an analysis (at 89). However, such arguments face difficulties under current jurisprudence.

Consequences of Non-Parties’ Submissions to the CLCS

States Parties to UNCLOS might be alarmed by the prospect that the US could claim the benefit of Article 76 provisions to delineate its ECS limits whilst not committing to adhere to Article 82. This would ultimately lead to an inequitable outcome in that non-Parties could claim benefits of Article 76 without the concomitant responsibility in Article 82.

It is therefore in the interest of States Parties to UNCLOS to pay close attention to the strategy employed by the US. Silence or passive acceptance of the US leveraging on Article 76(1)-(7) without addressing the obligations under Article 82 could imply tacit consent to a selective application of UNCLOS provisions. In the absence of clear commitment to apply Article 82, the US may be able to ‘have its cake and eat it too’, directly depriving States Parties from the benefits of production from the US ECS.

In March 2024, Russia publicly responded to the US’s announcement of its ECS outer limits, refusing to recognize these limits on the grounds that these unilateral actions not only secure additional benefits for the US and restrict other states’ rights to access the Area’s resources but also allow the US, as a non-party to UNCLOS, to dodge royalty payments of Article 82.Thus, Russia is suggesting that the US should ratify UNCLOS and “duly adhere to its provisions, assuming the full range of rights and obligations therein.” Nevertheless, there may be more constructive ways to handle the issues surrounding the US’s ECS outer limits.

Recommendations to States Parties to UNCLOS

To address the emerging challenges of the application of Articles 76 and 82, States Parties to UNCLOS could consider two critical issues.

First, States Parties should reflect on their response to the data released by the United States in December. It would be worth considering making a statement in response to the effect that, if the US wishes to rely on Article 76(1)-(7) of UNCLOS, it must accept that Article 82 also applies due to the package deal. This would preclude the US from relying on acquiescence if the question of payments or contributions in kind under Article 82 arose at a later date.

Second, States should evaluate their view on the possibility of a non-Party State submitting its data for consideration by the CLCS. While it might be tempting to argue against such a submission due to the US’ non-Party status, this strategy overlooks the broader implications of engaging constructively with non-Parties.

A more productive approach may be for State Parties to indicate that they are willing to allow the CLCS to consider the submission so long as the US agrees to apply Article 82 in its entirety. If the US agrees, it might amount to an acceptance of obligations for a third Party under a treaty according to Articles 35-37 of the Vienna Convention on the Law of Treaties. Thus, the quid pro quo for allowing the US to use the CLCS process would be to confirm that it is bound by Article 82.​
 
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