Who Owns Santa's Workshop?
A Second Contestant enters the "Race for the Arctic"

Ian Townsend-Gault

The question can be answered without difficulty - no one person or state.[i] By "Santa's Workshop" we mean of course of the North Pole. Fantasy aside, unlike its southern counterpart, there is no "land" in question here, only ice, the subjacent water column, and the seabed. All this is relevant, it seems to me, because of a report in December 2014 that Denmark was making a claim to "absolute sovereignty" over an Arctic area which included the Pole.^[ii]

The Canadian media took note: "A new cold war: Denmark gets aggressive, stakes huge claim in Race for the Arctic" (National Post, December 15); "Denmark makes case for ownership of North Pole" (Globe and Mail December 15). And so on and so on. The first contestant in the race, by the way, was Russia, now revising (and strengthening) its case.

I first heard about all this from the CBC morning news (also December 15). My reaction was one of disbelief: not because of the temerity of the dastardly Danes, but more how on earth those responsible for this news report could have got at least one essential point so badly wrong. Those in my line of work are perfectly habituated to contested sovereignty claims and decidedly oddball positions on maritime jurisdiction. One certainly thinks of the South China Sea in both connections, but there are plenty of examples in other parts of the world. The claim was announced by means of a Bulletin from the Danish Ministry of Foreign Affairs (December 15 2014)[iii], and part of the problem might spring from some fairly loose wording by Foreign Minister Martin Lidegaard: "The objective of this huge project is to define the outer limits of our continental shelf and thereby - ultimately - of the Kingdom of Denmark". If the Minister was referring to "jurisdiction", well and good (the word "sovereignty" does not appear in the Press Release). One can well imagine, however, that his officials would have preferred a more exact and legally accurate form of wording for public release, especially given the manner in which the media seized on this seemingly casual remark.

It could not possibly be, I thought, that Denmark would make a claim so at variance with international law in general, and the United Nations Convention on the Law of the Sea 1982[iv] (LOSC) in particular. Denmark's Strategy for the Arctic 2011-2020 (Ministries of Foreign Affairs of Denmark and the Faroe Islands; Department of Foreign Affairs of Greenland, August, 2011[v]) makes it unambiguously clear that its entire approach will be guided by international law and the LOSC (to which it is a party). It refers throughout to the possibility of extending the continental shelf beyond two hundred nautical miles - this will be discussed in the next section. States exercise over the continental shelf "sovereign rights for the purposes of the exploration for and exploitation of" the natural resources of the seabed and subsoil. There is no mention of sovereignty, absolute or otherwise. The differences between the two concepts, sovereignty, and sovereign rights for certain purposes, are profound and very important. Having said this, to those not versed in the mysteries of the law of the sea, they may also seem somewhat nebulous. The answer to this is that if the framers of the Convention had wished to recognize rights of "sovereignty", the document would have said so: but it doesn't. That is the point.[vi] This is the trap Minister Lidegaard (more or less) fell into.

What is the Extended Continental Shelf?

When considering any zone of maritime jurisdiction, two questions are (equally) paramount. First, what is the nature of the rights states enjoy within that zone, and second, what is its geographical extent? Both questions are answered by the rules of international law (i.e. not natural law, or some shadowy concept of historic entitlement, or whatever). Without an appreciation of nature/extent of rights, we cannot go forward.

The term "continental shelf" was coined by geographer in 1898. It refers to a physical maritime phenomenon: the gently sloping area of seabed adjacent to (and geologically linked to) the landmass (it need not be "continental": any area of land will suffice). The "natural prolongation of the landmass" was to be prime factor relied on to view the shelf as more than mere "seabed". The Grand Bank of Newfoundland is one archetypal example of the phenomenon. Much of the seabed adjacent to Europe is continental shelf, including the North Sea, the Baltic, the Mediterranean and its adjacent marine areas. On the east coast of North America, geology has created large areas of shelf in addition to the Grand Bank, including the Scotia Shelf, the Gulf of Maine, and the Gulf of Mexico. On the other hand, as regards (naturally-formed) continental shelf, the west coast of the continent has fared less well in places, most notably off British Columbia.

Once it was determined that the continental shelf was, or was likely to be, rich in hydrocarbons, it was only a matter of time before coastal states worked out ways of taking jurisdiction over it, going beyond the traditional limits of state jurisdiction constituted by the territorial sea (which had a breadth of three nautical miles at least until the 1970s). This process started in September 1945 with a Proclamation issued by President Truman of the United States[vii], which stressed the presence of the much-needed resource, the need for proper supervision of exploration and exploitation - all justified by the fact that the shelf was the natural prolongation of the landmass. The coastal states of the world seemed keen to follow this lead - more or less. It is true that some, particularly in South America, were more interested in extending fisheries jurisdiction, but the distant water fishing nations set their faces against this resolutely, at least until the late 1970s. The international consensus had moved by then decisively in favour of the exercise of such rights from the limits of the territorial sea (now 12 nautical miles) to within 200 nautical miles of the coast/baseline.

As regards the continental shelf, the problem was that a new rule of customary international law had come into being at least by the late 1950s (being unwritten, it is not always possible to be precise as to exactly when individual state practice had had coalesced into a rule) which was ostensibly tied to a geological phenomenon. But would states which did not have a significant (natural) shelf, or - as was the case with Norway - some form of declivity or interruption in it (possibly terminating the "natural prolongation", and hence their rights), feel at all inclined to subscribe to the new regime? In order to overcome this, the International Law Commission, a UN body charged with drafting a convention on the law the sea to be considered at an international conference, what was to be the First United Nations Conference on the Law of the Sea in 1958, decided to retain the terminology, but to craft a legal definition of the continental shelf. This proposed that the "legal" shelf would extend to the 500 meter isobath, or beyond, to where the depths of superjacent waters admitted of exploitation.

The Commission also proposed the "sovereign rights for the purpose of" formula to underscore the fact that coastal states were not making claims which might one day result in very extensive areas of territorial sea (areas of almost complete sovereignty over the water column, seabed and subsoil, and the living and non-living resources thereof).

This was of course a compromise, but it seemed reasonable at the time: no one was drilling in waters of 500 meters depth or anything close to it at the time. At the time - this is where the problem arose. The oil industry with its legendary flair for technological innovation when put to it developed approaches to exploration and production in the deep and turbulent waters of the North Sea by the mid-1960s - seaward of the 500-meter isobath. The result was that the only legal definition of the seaward extent of the continental shelf was now the exploitability test. This in turn meant that, at least in theory, the entire seabed of the world was carved up between opposite and adjacent coastal states.

This was clearly unacceptable not only to landlocked states, but to those who had fared less than well in the matter of political geography, not to mention anyone possessed with a shred of a sense of justice. If we look at a map of Western Europe, we can see that states such as Norway, Ireland and Portugal face out into the Atlantic, the nearest land opposite to them being thousands of miles away. Then look at Germany: since unification the largest country in the European Union measured any way one wishes, but entitled to a small sliver of the Baltic, and an irregularly-shaped but hardly extensive pie-shaped piece of the North Sea. Countries such as Spain fared better, but not by much, while the littorals of the enclosed and semi-enclosed seas of Europe - the Baltic, the Mediterranean etc. - had to be content with whatever they could get. One comes across the term "equity" very often in reading about maritime boundary delimitation. But it means equity as regards the allocation of an area as being within the jurisdiction of one state or another according to the applicable rules and principles which have developed since the 1940s. It does not mean equity as regards matching the needs of the country with the marine area coming within its jurisdiction, adjusting its size to at least have some regard to what its domestic requirements in terms of marine resources might be.

One of the tasks of the Third United Nations Conference on the Law of the Sea, which met from the early 1970s to 1982, was to come up with firm limits to coastal state jurisdiction. The Conference determined the 200 nautical miles from the coast or baseline, if there was one, should suffice (and nothing less than a large number of countries would have had nothing to do with the convention (LOSC) that the Conference was drafting). A significant number of countries had already made unilateral claims to jurisdiction out to 200 nautical miles, so it seemed sensible to accede to what appeared to be the will of an increasing number of coastal states.

This did not address the question of countries such as Canada and the United States (and many others) which had seabed areas which were the natural promulgation of the landmass but which extended seaward of 200 nautical miles. Accordingly, the Conference came up with a formula whereby such countries might, if strict geological criteria were satisfied, exercise natural resource jurisdiction (sovereign rights for the purposes of exploration and exploitation) seaward of 200 nautical miles.[viii] The eventual Convention contains a series of criteria for determining the "once and for all" limits to this jurisdiction, enshrined in Article 76. In order to see fair play, the Convention established a new body, the Commission on the Limits of the Continental Shelf[ix] to which states would submit their claims for jurisdiction beyond the usual limits. The Commission, comprised entirely of technical experts, would give its recommendations accordingly. These might be to the effect that the claim was well made out, or that it was not, or that more evidence was required for final determination one way or the other. Nothing remotely like this had been seen before in the international law of the sea.

Denmark's "aggressive act" has been to make such a submission to the Commission.

Emerging Issues

For the life of me, I cannot see why the Canadian media, or parts of it, worked themselves into such a lather over this. Viewed objectively, a notably law-abiding member of the international community is seeking to avail itself of the rights which, in its view, accrue to it under international law (the Minister's ambiguous comments do not affect the position at international law). What is more, it is submitting its claim to the scrutiny of an expert body established for that very purpose. It may of course be that the extensive area claimed by "tiny" Denmark (National Post - albeit the claimed area is seaward of the not-so-tiny Greenland) does indeed for part of the natural prolongation of its protectorate. But this is not the end of the story.

There is nothing remotely unusual about the phenomenon whereby two or more states have what appears to be an equally valid claim to the same submarine or indeed Marine area. The North Sea, for example, can be viewed as the natural prolongation of the United Kingdom, Norway, Denmark, Germany, Belgium, and the Netherlands. The same situation arises in the Baltic and Mediterranean seas. This is where the rules concerning maritime delimitation come into play, they've done principles and rules to guide states - or third-party dispute settlement mechanisms - in the quest to ensure that each party has, at the end of the day, an area of jurisdiction to which they have an equitable entitlement (but note my remarks above on what "equitable" does and does not mean in terms of ocean jurisdiction). I have seen no convincing reason why the extensive body of state practice and international jurisprudence on maritime boundary delimitation should not be brought to bear with respect to the extended continental shelf (the Danish Press Release of December 15 2014 looks forward to such negotiations with its maritime neighbours). Modifications may be required, but that is nothing unusual as regards a body of law. In other words, it would be far from surprising if Canada was able to prove that the Western areas of the Danish claim were as much the natural prolongation of that country as they are of Greenland.[x]

I have remarked on this before, but it seems to me that there is something about the Arctic (and maybe the South China Sea also) which seems to deprive otherwise steady and sober women and men of their powers of reason. This may be because so few people have visited the region, but nonetheless are seized of powerful romantic and emotional thoughts having to do with it. International lawyers, however, are made of sterner stuff. It is more than likely that the rules on Maritime boundary delimitation may require some modification when applied to the extended continental shelf, but I see no reason to doubt that the international legal community will be able to deal with this. After all, the very extensive continental shelf boundary agreed by Norway and the United Kingdom in 1965 was astronomically longer than the then accepted limits of the territorial sea (three nautical miles in the case of the United Kingdom: four nautical miles in the case of Norway).

My final point returns to the one made in my opening paragraphs. Not only was there an egregious mistake in the reporting of the nature of the Danish claim, but it seemed very easy for the heavy journalistic guns in Canada at least to fire broadsides in the general direction of Copenhagen. What else, I would ask, were the Danes supposed to do? Reduce their area of claim so that it appeared more moderate? Why on earth would they do that?

The danger I see is that it is temptingly easy for the media to whip up a storm out of virtually nothing. As some media outlets reported, the Danish claim joins the queue of submissions pending before the Commission. At the present rate of going, it will not be considered for something like 15 years. What is more, however, any Arctic littoral which feels threatened by the Danish claim has only to launch an objection to it before the Commission for that body to refuse to consider it.

At the end of the day, I consider some aspects of the media treatment of this story to be grossly irresponsible. The flat mistake concerning the nature of the Danish claim is bad enough, but the somewhat imbecile attempt to manufacture indignation is possibly worse. And yet, such approaches are the hallmarks of too much of modern journalism. I well remember telling a correspondent for a major international newspaper that there was not, in fact, solid evidence of massive deposits of hydrocarbons in the area of the Spratly islands in the South China Sea. His response that this might well be true, but his paper would never print something so "un-newsworthy". My response to this was to remark that his newspaper evidently preferred to print something which simply was not true, which was greeted with a somewhat wan smile. I could have gone on to press my point and ask how many other misstatements his and other newspapers, not to mention the broadcast media, were prepared to repeat time after time, and what impact this might have on the credibility of journalism as a whole. I still think it is a very good question.

I conclude with a quote from News from No-man's Land, the third volume of autobiography by the veteran and internationally respected BBC foreign correspondent John Simpson. I think it makes my point with devastating authority:

The real problem with journalism of every kind... Is its selectivity. We separate out the interesting from the dull, and the most interesting from the merely averagely interesting, until every item on every news bulletin, every column inch of every newspaper, is filled with exceptional cases. This is inevitable, if you are telling people news - that is, new things.

(T)he best policy, it seems to me, is to inform people better, more often and at greater length about the world they live in.[xi]

Just so. This is not an approach which will recommend itself to media outlets concerned more with profit than anything else, nor those who have decided to adhere to a particular way of thinking, come what may. Serious journalists, and their editors, however, have obligations to their readers/viewers. One is surely to get their facts right, no matter how lacking in excitement the result may be (the lure of a claim to absolute sovereignty versus the more caution notion sovereign rights for certain purposes only: "the South China Sea is the next Persian Gulf" versus "there is no independent evidence of significant deposits of hydrocarbons seaward of South China Sea coastal waters"). If the Associated Press, or its subscribers, had discovered that there was no claim to "absolute sovereignty", what would they have done? We are dealing here with basic issues going beyond accuracy, desirable though that is, and into the realm of civic responsibility - are we not?

[i] Issues of pure "ownership" = sovereignty do of course arise, e.g. in the Northwest Passage. The jurisdictional issues of the region are examined in Michael Byers, Who Owns the Arctic? : Understanding Sovereignty Disputes in the North, Vancouver, Douglas and MacIntyre, 2009.

[ii] The source appears to be an item issued by the Associated Press.

[iii] "Denmark and Greenland will today file a submission regarding the continental shelf north of Greenland", Ministry of Foreign Affairs of Denmark, accessible at: http://um.dk/en/news/newsdisplaypage/?newsID=71574E42-6115-4D16-9C8A-4C056F8603F3.

[iv] United Nations Convention on the Law of the Sea, Montego Bay, December 10, 1982, in force November 16, 1994, in U.N.T.S. vol. 1833 p. 3, also available at http://www.un.org/Depts/los/convention_agreements/convention_overview_convention.htm. Denmark signed the Convention in Montego Bay, and ratified it on November 16, 2004, ten years to the day after it entered into force, and slightly more than once year after Canada become a fully party. Information as to the status of the Convention and related instruments can be found at http://www.un.org/Depts/los/reference_files/status2010.pdf.

[v] The document can be accessed at: http://ec.europa.eu/eip/raw-materials/en/system/files/ged/41%20mss-denmark_en.pdf. The nomenclature notwithstanding, neither Greenland nor the Faroes have international capacity, merely internal self-government, not unlike Canada until 1931: all their legal dealings with states or international organisations must go through Copenhagen.

[vi] While there is often (but not always) scope for interpretation in understanding the application of a given legal instrument, there are rules governing such exercises. Most importantly, it is not open to anyone to read into a legal document wording or meanings which are either absent, or clearly at variance with that is intended by it. The temptation to "round up" must be resisted. For example, Canadians like to think that their country became a "country in 1867". It might well have, but the British North America Act of that year did not create an independent sovereign state: this was the last thing that the "Father of Confederation" wanted. The (six) Dominions of the British Empire were permitted to assume international responsibility after the enactment of the Statute of Westminster, 1931. All but Newfoundland did so. Accordingly, statehood dates from this point.

[vii] Proclamation No. 2667, Policy of the United States With Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf, September 28, 1945, 10 Federal Register 12303; 3 C.F.R. 1943-1948 Comp., p. 67; XIII Bulletin, Department of State, No. 327, September 30, 1945, p. 485. Whiteman, Digest, vol. 4, pps. 756-7.

[viii] Professor Clive Schofield and I offer a condensed version of how Article 76 might be applied in Clive Schofield and Ian Townsend-Gault, Extending the Baguette? France Plays Leap-Frog on behalf of St. Pierre et Miquelon, International Zeitschrift, June 2009, vol. 5.2.

[ix] LOSC, Annex II. Comprehensive information on the Commission and its workings (not always absolutely up-to-date) can be found at: http://www.un.org/Depts/los/clcs_new/clcs_home.htm.

[x] Article 76 may be applied in such a way that all, or almost all, of the seabed of Arctic Ocean is subject to the jurisdiction of the littorals, but the casual assumption that this will inevitably happen must be resisted: see Ian Townsend-Gault, Not a Carve-up: Canada, Sovereignty, and the Arctic Ocean, in International Zeitschrift, vol. 1 no. 3, August 2007, at http://www.zeitschrift.co.uk/ (now available at Heinonline.org),

[xi] John Simpson, News from No Man's Land: Reporting the World, Pan Books, 2008 ed., pp. 172-3. The extract is from Chapter 6 of the book, "Truth or Consequences" - required reading for anyone concerned about news reporting and the media, and television in particular. The world Simpson inhabits - that of the BBC - seems light years from the sordid environments in which other journalists are obliged to work. The Chapter (and the book as a whole) explains why some news sources are trusted, while others will never be, expect by those who want to hear what they want to hear, with no critical insights of anything of that kind.