Friday, May 29, 2009

Cooperation, not conflict, in the Arctic: Postcript to COLP Conference in Seward; Conference Presentations posted

As a postscript to the previous entry regarding Changes in the Arctic Environment and the Law of the Sea, the 33rd annual conference of The Center for Oceans Law and Policy (COLP), it is important to broadcast at least one message emphasized repeatedly by conference participants. That message is that there is great cooperation in the Arctic Ocean by littoral states, especially regarding submissions to the Commission on the Limits of the Continental Shelf and in managing existing disagreements regarding maritime boundaries.

John Norton Moore, Director of COLP, in an interview for Alaska Public Radio, emphasized “very substantial cooperation at an operational level, for example Coast Guard to Coast Guard and that governments are working closely together to try to resolve the remaining issues of boundary problems, for example."  Moore emphasized that the eight arctic nations are  “working on cooperative solutions.”  This message was reiterated by Rear Admiral Arthur E Brooks, Commander, 17th USCG  District,  in his description of cooperation between the U.S. and Canadian Coast Guards and by the many diplomatic representatives in attendance.  For a related story from the Canadian perspective see the Petroleum News coverage of a Commonwealth North forum in Anchorage last week (discussing Canada's joint Arctic Ocean surveying with the U.S. and a separate memorandum of understanding with Denmark for joint surveying, as well as Canada's exchange of scientific data about Arctic Ocean ridges with Russia).

Powerpoint presentations from the Seward meeting are already posted on the COLP conference website; the papers will appear in the ongoing series of COLP conference reports published by Brill.  The conference website also provides conference notes prepared by student rapporteur Lisa Campion of Vermont Law School, who is interning this summer at Trustees for Alaska  and is a member of the VLS Institute for Energy and the Environment research team.  Note: the book referenced in her notes on Ted McDorman’s talk is Transit Management in the Northwest Passage: Problems and Prospects, Cynthia Lamson and David L. VanderZwaag (eds), Cambridge University Press 1988 (ISBN 978-0-521-09337-8)

Of particular note for continental shelf mapping is the presentation by Brian Van Pay, Maritime Geographer with the U.S. Department of State Office of Ocean and Polar Affairs.  His talk provided a comprehensive overview of the status of each arctic state’s preparations for and submissions to the Commission on the Limits of the Continental Shelf  (sketched in much less detail here).   The presentations from the session dedicated to Continental Shelf Limits and Jurisdiction (offering a Canadian, United States, Danish and Russian perspective) are also available at the COLP conference web site.

Thursday, May 28, 2009

Changes in the Arctic Environment - 33rd Annual Conference of the Center for Oceans Law and Policy (UVa), Seward, Alaska

Changes in the Arctic Environment and the Law of the Sea, the 33rd annual conference of The Center for Oceans Law and Policy of the University of Virginia School of Law, concluded this past week (May 20-22, 2009) in Seward, Alaska, having drawn some 150 attendees from North America, Asia and Europe. A remarkable array of experts, many from the diplomatic corps and governmental agencies of Canada, Denmark, Iceland, Norway, Russia and the United States, addressed topics ranging from continental shelf limits in the Arctic Ocean to arctic offshore oil and gas, the Arctic Marine Shipping Assessment, and arctic living resources and marine biodiversity.

Of the many valuable contributions by the U.S. Department of State, Oceans and Fisheries Directorate, two are especially noteworthy:

David Balton, Deputy Assistant Secretary for Oceans and Fisheries, offered a clear articulation of the precautionary approach as embodied in the effective ban on commercial fishing in U.S. federal arctic waters contained in the Fishery Management Plan for Fishery Resources of the Arctic (under Secretarial review). The plan was adopted by the North Pacific Fishery Management Council in February 2009. NOAA recently opened the public comment period on the policy, which closes July 27, 2009. Balton framed the discussion as acknowledging that relatively little is known about arctic fisheries, and as thinking now about fisheries management later, a message similar to his remarks to the FAO radio agency in Rome earlier this year.

Margaret F. Hayes, Director, Office of Ocean and Polar Affairs, spoke of the evolving approach of the United States to extended continental shelf issues. In discussing the United States response to Russia’s 2001 submission to the Commission on the Limits of the Continental Shelf she observed that, in hindsight, the response reflected an inadequate appreciation of the complexities and subtleties of arctic geology.

The formal program included representatives of most arctic stakeholders, with the notable exception of the native Alaskan communities. Earl Kingik, member of the Native Village of Point Hope, Alaska and Inupiat subsistence hunter and whaler, graciously accepted an 11th-hour invitation to join the panel on Arctic Marine Environment and Biodiversity, a gesture all the more remarkable given that Point Hope was in the midst of whaling season.

One of the gems of the conference was the very last session on the Svalbard treaty area. Even under severe time limitations, Robin Churchill, University of Dundee and Geir Ulfstein, University of Norway, gave masterful overviews of the potential complexities of competing claims in Svalbard offshore areas and the status of maritime zones around Svalbard.

Canada was especially well represented amongst panelists and moderators (see the program for their individual topics): Nigel Bankes, Aldo Chircop, Rob Huebert, Suzanne Lalonde, Ron Macnab, Ted McDorman, Lori Ridgeway (Fisheries and Oceans Canada, in absentia) and David VanderZwaag.  Those interested in Canadian - United States relations regarding ocean affairs are encouraged to consult McDorman's very recent and topical book, Salt Water Neighbors.

Notable for observers concerned about translating science for policy-makers was the common reaction from many in the audience to Stephen Macko’s sobering presentation on changes in the arctic marine environment. His emphasis on acidification of the oceans built on information known to most audience members in connection with coral reefs but emphasized the less often realized potential for that acidification to weaken the shells and protective layers of crustaceans and other forms of marine life.

This year the Law of the Sea Institute at Berkeley Law joined COLP as a sponsor of the annual conference.  

Wednesday, May 20, 2009

Deadline Day at the Commission on the Limits of the Continental Shelf

May 13, 2009 was the deadline for all States Party who joined the LOS Convention prior to May 13, 1999, to file a submission with the Commission on the Limits of the Continental Shelf. The Commission has now received fifty full submissions from 44 states, and another 42 filings of “Preliminary Information indicative of the Outer Limits of the Continental Shelf.”** The CLCS home page lists both the full submissions and the Preliminary Information filings.

Russia was the first Arctic Ocean coastal state to file a full submission relating to the Arctic Ocean, followed by Norway. (The Comission issued its Recommendations regarding the Norwegian submission in March 2009.) Denmark made a submission with respect to the area north of the Faroe Islands in April 2009 but was not subject to the May 2009 deadline, having joined the Convention in 2004. Neither Canada, which joined the Convention in 2003, nor the United States, which is not yet party, was subject to the May 2009 deadline.

Given the expense and difficulty of mapping the Arctic Ocean, joint mapping activities by various combinations of arctic states continue to take place. Whether any of this cooperation in mapping will lead to eventual joint submissions remains to be seen. At least one source, Canada’s Foreign Affairs spokesman Alain Cacchione, reports Russian interest in a joint submission by Canada, Denmark and Russia.

**The States Party to the Convention created the category of “Preliminary Information” in June 2008 (SPLOS/183) as it became clear that many states, especially those that lack access to the necessary technical support, would have difficulty meeting the May 2009 deadline. As mentioned here last month in the context of Somalia’s preliminary filing with the Commission, that decision was reached at the 18th Meeting of the States Party and specified that States could meet the ten-year filing deadline set out in Annex II to the Convention, article 4, by filing such Preliminary Information.  

Martin Pratt, Director of Research, International Boundaries Research Unit, Department of Geography,
Durham University,  first posted the following comments on the int-boundaries list

"The Bahamas provided preliminary information on the outer limit of the continental shelf on 12 May. So it may be that all coastal states with continental shelf beyond 200 nautical miles and which  became parties to UNCLOS before 13 May 1999 have fulfilled their obligations under Article 4 of Annex II of the Convention and subsequent agreements by States Parties."  

This builds on Martin's earlier comments: 

" By my count there are five States which (i) became parties to UNCLOS before 13 May 1999, (ii) are not zone-locked,  and (iii) have not provided at least preliminary information to the CLCS, namely: Antigua and Barbuda, The Bahamas, Guatemala, the Marshall Islands and Nauru.
My sense is that of these five States only The Bahamas might have a physical continental shelf extending beyond 200 nautical miles, but I am open to correction on that point. Equatorial Guinea submitted preliminary information to the CLCS on 14 May, technically missing its ten-year deadline by a day. I don't suppose that it will be penalised when its full submission is eventually considered by the Commission! There are ten States Parties which are not zone-locked whose 10-year clock is still ticking: Nicaragua (deadline = May 2010), Maldives (November 2010), Bangladesh (July 2011), Madagascar (August 2011), Tuvalu (December 2012), Kiribati (February 2013), Canada (November 2013), Denmark (November 2014), Morocco (May 2017) and Liberia (September 2018). Colombia, Dominican Republic, Ecuador, El Salvador, Peru and the USA are non-zone-locked which have yet to become parties

Tuesday, May 5, 2009

Canadian Senate Committee calls for Canadian Leadership on Shelf Issues

The Canadian Senate Standing Committee on Fisheries and Oceans has published a comprehensive report on maritime issues in the Canadian Arctic: "Rising to the Arctic Challenge: Report on the Canadian Coast Guard".  While focusing on the Canadian Coast Guard, the 73-page report provides a thorough overview of issues ranging from continental shelf mapping to shipping, NORDREG registration,  Resource Canada's Polar Continental Shelf Project and its support of international arctic research,  search and rescue, continuous Inuit use and occupation of the Canadian Arctic, and environmental response in the Arctic.

The Report's discussion of Canadian and other continental shelf submissions in the Arctic Ocean emphasizes the need for international cooperation in mapping and later phases of determining the extent and division of the extended continental shelf (ECS).  Just two excerpts indicate the scope and measured tone of the Report on ECS  issues:

Excerpt I:
"Recommendation 5:  The Committee recommends that Canada assume a leadership role in promoting international cooperation on:  (a) issues relating to continental shelf claims; and (b) the development of a mandatory common code relating to the construction, manning and equipment of all vessels operating in the Arctic Ocean equal to Canada’s domestic standards.  (See pages 43 and 44.)"

Excerpt II:

In discussing the mapping process, the Report states:

"Alan Kessel, Legal Adviser to [Department of Foreign Affairs and International Trade], noted in his presentation to the Committee that Canada had been collaborating with other countries on mapping.  This, he said, not only makes good economic and scientific sense, but will also help avoid the potential overlapping of national claims and reduce the need for future arbitration.  Mr. Kessel also emphasized that the Article 76 process had been incorrectly portrayed in the media as an adversarial scramble for natural resources."

Notwithstanding this measured tone, the very first paragraphs of the Report mention potential challenges to Canadian sovereignty in the Arctic, including possible disagreements with neighbors over continental shelf submissions:

"Canada faces a number of actual and potential challenges to its sovereignty and sovereign rights in the Arctic. Canada and Denmark both claim ownership of Hans Island in the eastern Arctic.  Canada also has longstanding maritime border delimitation problems with its circumpolar 

neighbours.  As for the continental shelf beyond the 200-nautical-mile Exclusive Economic Zone, the extent to which other Arctic coastal countries will lay national claims to the seabed will be a matter to be determined in accordance with specific rules laid down in the 1982 

UN Law of the Sea Convention.  However, disputes concerning overlapping claims could arise." 

This April 2009 report follows on the Committee's excellent Interim Report from June 2008, available here and mentioned in an earlier post.  The Committee's press release on the latest report provides useful background information on the latest report and links to its fourteen Recommendations.

Icebreaking into the Arctic

The USCGC HEALY embarked Barrow, Alaska, in August 2008 to map the US extended continental shelf, or ECS, in the Arctic Ocean (HLY 0805). Healy sailed again from 7 August to 16 September, 2009 (HLY 0905) to continue ECS mapping, joining with the Canadian icebreaker, the Louis S. St.-Laurent. The two vessels mapped together again in 2010 (see HLY1002) and 2011 (HLY1102).

As the only law professor on the science crew, I was along on HLY 0805 and 0905 to better understand
the science behind the legal process that the UN Convention on the Law of the Sea establishes for states making ECS submissions. As to why the US is mapping now, even though it has not yet acceded to the Convention, read on both here, and in the Law of the Sea notes below.

Thanks to
Vermont Law School and especially to Larry Mayer, Director of the University of New Hampshire's Center for Coastal and Ocean Mapping, for making my part in the trip possible.
Thanks, as well, to Adriane Colburn, for opening new windows on and for the deep.