EARLY AND PARTIAL CLAIM
An investigation of the feasibility of making an early initial claim to part of Canada’s juridical continental shelf under Article 76 of United Nations Convention on Law of the Sea (UNCLOS)
David Monahan
>Dave Monahan
>Director, Ocean Mapping
>Canadian Hydrographic Service
>615 Booth St
>Ottawa, Ontario, Canada
>KIA 0E6
>Phone (613) 992-0017, secty 995-4666
>Fax (613) 996-9053
andandaans
>Ocean Mapping Group
>Department of Geodesy and Geomatics Engineering
>University of New Brunswick
>P.O. Box 4400, Fredericton, NB E3B 5A3
>Phone (506) 453-5147
>Fax (506) 453-4943
>Email >and
Abstract
The United Nations Convention on Law of the Sea (UNCLOS) divides the floor of the oceans into zones that fall under the jurisdiction of either a Coastal State or of the UN. Coastal States are automatically given an Exclusive Economic Zone (EEZ) 200 nautical miles wide, and need take no action. Beyond the EEZ, Canada and another 50 to 60 states may be able to claim jurisdiction over the seafloor of the juridical continental shelf, but will have to undertake some possibly extensive preparation, prepare a claim, and submit it to the Commission on the Limits of the Continental Shelf (CLCS). The work required to do this may be time consuming and require a high degree of sophistication; an unpublished Federal Government document estimates that preparing the entire Canadian claim from new data will require 8 to 10 years and cost between $60 and $100 million dollars.
No state has as yet submitted a claim, but it can be assumed that those who intend to do so with new data will be subject to costs proportional to the area they wish to claim. Such potential spending represents opportunities for Canadians in employment, training, research and the provision of goods and services, both domestically and abroad. Several counties have already sought help from Canada (e.g. Ireland, NZ, Uruguay), without us marketing our expertise, yet it is countries like the UK who are expending effort on establishing themselves as the source of UNCLOS expertise. Canada can counter this thrust, but only if we act promptly.
Although the position Canada holds in the perception of many Coastal States who may prepare a claim is strong because of our diplomatic and scientific involvement in UNCLOS to date, our position is weakened through not having ratified. This paper develops an approach that can help circumvent this argument as well as substantially advancing Canada’s economic opportunities through proposing that Canada prepare a claim to a portion of our continental shelf, and submitting that claim to the UN. This can be done in one of two ways. The first would involve collecting new data specifically for the claim: this would probably take two years at a cost of less than $5 million. The second would be to use existing data and make the best possible claim based on it: this could probably be done as a “desk study” within six months. Moving quickly can mean Canada is the first to submit a claim, solidifying our weakening leadership position and strengthening the appeal of Canadian expertise that can be sold to other countries. Doing so will also lead to a stronger final Canadian claim.
This paper examines the issues involved in claiming a limited portion of the Canadian continental shelf under Article 76 of UNCLOS within two years, and recommends that a Partial Claim be prepared.
TABLE OF CONTENTS
1. Introduction 4
2. The claiming process 5
2.1 Preparation of a claim by a Coastal State 6
2.2 The Formal process of submitting a claim 7
1 Bringing a submission to the Commission 7
2 Establishment of a subcommission 7
3 Activities of the subcommission 7
4 Finalization of the outer limits 8
3. The Concept of Claiming Piecemeal 8
4.Benefits derived from preparing a Partial Claim 8
4.1. Allows deeper analysis of the CLCS Guidelines 9
4.1.1 Possible Outcomes 9
4.2. Permits testing, analysis and verification of existing mapping capabilities 10
4.2.1 Possible Outcomes 10
4.3. Allows testing, analysis and verification of accuracy and completeness of data sets 10
4.4. Enables CARIS LOTS Testing with real data 11
4.4.1 Possible Outcomes 11
4.5. Permits testing, analysis and verification of methodologies for finding Foot of the Slope and the Gardener (sediment thickness) line 12
4.5.1 Possible Outcomes 12
4.6 Permits the development of improved Cost estimates for preparing a Complete Claim 12
Table 1 Comparison of costs for increasing levels of effort required to prepare a claim. 13
4.6.1 Possible Outcomes 14
5.Advantages derived from submitting a Partial Claim 14
5.1. Advantages to Canada as an exporter of goods and services 14
5.2. Advantages to Canada in diplomatic / legal circles 15
6. Examination of the feasibility of Canada submitting a Partial Claim 16
6.1 The possibility of any state making a Partial Claim 16
6.2 The possibility that a state that has not ratified can submit a claim 17
6.3 Initial and subsequent partial claims and precedents set 18
6.4 Timing Considerations 19
6.5 Risk Analysis 20
a. CLCS will not consider claim 20
b. The claim will be examined and found to be deficient 20
c. Claim will later be found to be smaller than could have been claimed 21
7. Approaches to preparing a Partial Claim 21
Table 2 Summary of steps in scenarios of increasing levels of complexity from no data collection to considerable data collection 22
8. Selection of geographic area to be claimed 23
8.1 Imperative characteristics of area selected 23
1. Must fall within the ambit of the CLCS. 23
2. Must be covered by an appropriate amount of data. 23
3. Must test the Guidelines in a credible fashion. 23
Table 3. Tentative cheme for assigning numerical coding to complexity of continental slopes over which a claim might be made. 24
4 Must provide the advantages discussed in Section 4. 24
5 Must be able to yield a Partial Claim in a form suitable for submission in a short period of time. 24
8.2 Candidate Areas 24
Table 4. Analysis of Canada’s three oceans suitability for a Partial Claim. 25
8.3 Comparison of areas 25
Figure !. Candidate areas for Partial Claim in Atlantic. 26
Table 6. Evaluation of condidate areas against steps in preparing a claim. 27
Table 7. Weighing the wants/benefits of the candidate areas. 29
9 Decision Analysis 29
9.1 Recommendation One: To prepare a Partial Claim or not 29
9.2 Recommendation Two: To collect new data or not 30
9.3 Recommendation Three: Area to be used 30
10. Plan for next phase, if there is to be one 31
11. Summary 31
References cited in text 32
Appendix 1 Iterative model for preparing a claim 35
Appendix ll Coastal States who have ratified UNCLOS, who have the possibility of an extended claim, and who are likely to consider Canada as a source of some form of help.) 36
1. Introduction
Signed in 1982 as the culmination of more than ten years of work, in 320 Articles UNCLOS (United Nations, 1983) attempts to regulate how humanity conducts itself in the world's oceans and seas. The Convention came into force in 1994 after ratification by sixty countries: to date, 133 countries have ratified. Canada signed the Convention in 1982 but has not yet ratified.
The section of UNCLOS that this paper addresses is the preparation of a claim over the seabed of the Continental Shelf adjacent to Canada. Article 77 grants the Coastal State sovereign rights over the Continental Shelf for the purpose of exploring it and exploiting its natural resources. Article 76 defines how the submerged area over which a state can claim jurisdiction is to be determined, and establishes a process for submitting claims to the Commission on the Limits of the Continental Shelf (CLCS). In brief, under certain morphological and geological conditions, a state may claim a continental shelf outside its 200 nautical mile-wide Exclusive Economic Zone. It is known that appropriate conditions exist off Canada in the Atlantic and Arctic Oceans, and that vast areas can be claimed beyond 200 nautical miles.
In a 1995, the Canadian Hydrographic Service and Geological Survey of Canada were charged with assembling and analyzing all existing data for it's suitability and completeness for use in substantiating Canada’s claim to the maximum extent possible. The Canada Oceans Act, which was passed in 1996, states that Canada’s Continental Shelf will be “determined in the manner under international law that results in the maximum extent of the continental shelf of Canada.” The two groups were also tasked with preparing and continually updating a plan for any data collection and surveying activities necessary to rectify any deficiencies in the existing data.
The costs associated with the plan are contained in Section 4.6. In brief, Canada faces a large task because of the sheer size of the Canadian continental shelves, because of the exceptional difficulty in accessing the Arctic seafloor from surface ships, because each shelf contains areas that will not be straightforward, and because of the plethora of new data that will be required. Preparing a claim that would encompass all of Canada’s waters could take as long as 8 to 10 years and cost between $60 and $100 million. This work will not only be valuable for Law of the Sea purposes; the collected data will become part of the national data infrastructure where it will be used for other applications, and for providing training and employment opportunities.
This paper suggests and describes an interim step toward preparation of a complete claim over all Canada’s continental shelf, one that results in some immediate gains for Canada. The project would consist of preparing and submitting a claim for a portion of the Canadian shelf, hereafter referred to as a “Partial Claim”.
2. The claiming process
Within ten years of a State ratifying the Convention, or for early ratifiers, within ten years of the Convention coming into force (i.e. by 2004), a Coastal State must submit to the CLCS the proposed limits to its Continental Shelf, together with supporting evidence. (The CLCS is established under Annex II of the Convention). Naturally, a great deal of preparatory work was done in anticipation of the specific demands for evidence and data that the CLCS was expected to make. An elaboration of these demands was not immediately forthcoming, since the members of the Commission were not elected until March, 1997, and the work required to issue “Guidelines” on the quantity and types of data needed to support a claim was not finished until May, 1999. (United Nations, 1999) The CLCS also produced Modus Operandi (United Nations, 1997) and (Rules of Procedure United Nations, 1998a) documents that elaborate some logistics of the claiming process.
This paper breaks the description of this activity into two stages, the preparation of a claim by a Coastal State and the formal process of submitting a claim
2.1 Preparation of a claim by a Coastal State
Several models for the process to be followed in preparing a claim have been advocated, including United Nations 1993, United Nations, 1999, Macnab 2000, Smith and Taft, 2000. These are largely descriptive and contain little guidance as to the sequence to be followed. Additionally, they largely ignore the effect of increasing scale as the case is developed. In an attempt to overcome these deficiencies, Monahan et al, 1999 developed an iterative model of the claiming process. It begins with examining an area on small-scale, publicly available maps and cycles through increasing amounts of data and increasingly complex continental margins. It addresses the issue of where strict application of the rules does not provide a solution and judgmental elements must be introduced. A flow chart of this model is included as Appendix 1.
Generally, a State wishing to prepare a claim must carry out the following activities:
a) prepare base maps for the exercise
b) Map baselines from which the breadth of the territorial sea is measured
c) Map the 2500m depth contour
d) Map the Foot of the Slope
e) Map sediment thickness
f) Determine the geological nature of isolated elevations
g) Decide on the case for ‘evidence to the contrary’
h) Create lines at calculated distances. (60, 100, 200 and 350nautical miles)
i) Prepare data bases of the above
j) Prepare output in the form of charts, maps and diagrams
These are only the technical steps of preparation. There must be a concomitant effort by the diplomatic corps if the claim is submitted.
2.2 The Formal process of submitting a claim
The following is condensed from Annex ll of UNCLOS (United Nations, 1983), the Guidelines (United Nations, 1999), Modus Operandi (United Nations, 1997) and Rules of Procedure (United Nations, 1998a).
1 Bringing a submission to the Commission
The Coastal State submits particulars of the limits it intends to claim along with supporting scientific and technical data to the Secretary-General of the United Nations. The Secretary-General “shall... promptly notify the Commission and all members of the United Nations... of the receipt of a submission, and make public the proposed outer limits of the continental shelf “. The submission shall be included in the agenda of the next meeting of the CLCS that occurs more than three months after the date of the publication by the Secretary-General of the proposed outer limits. (In effect, this gives other states at least three months in which they can examine the proposed outer limits.) The CLCS meets “at least once a year and as often as is required for the effective performance of its functions”; conceivably then, a submission could languish for almost fifteen months before being addressed, but this is unlikely. At the meeting of the CLCS there will be a presentation of the submission by Coastal State representatives, which will include Charts indicating the proposed limits, the criteria of article 76 which were applied, names of any members of the Commission who acted as advisers and any dispute arising from the submission. The submission is now formally before the CLCS.
2 Establishment of a subcommission
After hearing this presentation and unless it decides otherwise (and nowhere is it specified how or why the CLCS might decide otherwise), the CLCS shall establish a subcommission for the consideration of each submission. The subcommission will be composed of seven CLCS members, who cannot be nationals of the Coastal State making the submission or have assisted the Coastal State by providing scientific and technical advice. When the subcommission meets, the Coastal State shall be invited to send its representatives to participate, without the right to vote.
3 Activities of the subcommission
The subcommission will examine whether the format of the submission is in compliance with the Guidelines, and will ensure that all necessary information is included in the submission. It may request the Coastal State to correct the format or to provide any other information or clarification. The subcommission may decide that it needs the advice of specialists concerning the submission.