By Dr Petra Gümplová , Team Leader of a Research project on The Transformation of global commons and the future of planetary ecosystems at Friedrich Schiller University Jena

On December 19, 2023, the U.S. Department of State released the geographic coordinates defining the outer limits of its national continental shelf extended beyond the 200 nautical miles from the coast. Following two-decades of extensive scientific research, the United States now claim an area of approximately one million square kilometers in the world oceans – one in the Arctic, one in Bering Sea, one in the Atlantic, one in the Pacific, around Mariana Islands, and two areas in the Gulf of Mexico. As other continental shelves, the American shelf holds many valuable natural resources (corals, sedentary species, hydrocarbons, rare elements) and provides precious habitats for marine life. Combined, these areas are now added as exclusive zones of sovereign rights over natural resources to already large territory and natural wealth of this country.

In terms of marine geography and geology, continental shelf is the submerged prolongation of the landmass. It comprises the shallow, underwater edge of the continent, the steep continental slope, and the continental rise which ends with a break into abyssal plain of the deep seabed. Continental shelf is also a juridical concept. It is defined in the United Nations Convention on the Law of the Sea (UNCLOS) as a zone of exclusive sovereign rights to natural resources on the seabed and subsoil of the submarine areas that extend beyond the coastal state’s territorial sea to the distance of 200 nautical miles from the baseline – or further. States seeking to extend the outer limits of their continental shelf beyond the 200 nm boundary are required to submit an application to the Commission on the Limits of the Continental Shelf (CLCS) supported by a comprehensive scientific documentation proving that there is an extended continental shelf attributable to the applicant state. The Commission makes recommendations concerning the outer limits of the continental shelf that states ought to establish on this basis.

The US is not a Party to the UNCLOS and did not submit an application to the CLCS but it followed closely its rules and technical guidelines, thus joining most coastal states in their current efforts to extend continental shelf boundaries as far as possible. Arguably, this ongoing process of dividing the seabed in all oceans except Antarctica is one of the most momentous processes of division of the world’s natural wealth with far-reaching consequences. The reform aims to protect individual coastal states’ equal opportunity to use marine natural resources and prevent free, unregulated, and large-scale exploitation of marine resources by a few. While it may achieve this objective, it also leads to highly uneven division of ocean global commons into exclusive zones of national jurisdiction. This undermines the aspirations for a more equitable sharing of common resources and the possibilities of collective management for the greater global public good of the protection of marine environment.

Appurtenance Principle

The claims of states to continental shelves are a very modern phenomenon. Until the end of World War II, there were only two recognized maritime zones – territorial waters and high seas. Narrow territorial seas not extending beyond 3 nautical miles were claimed for security and fisheries protection reasons. High seas beyond territorial sea were accepted as an unclaimed common domain opened to all and governed by the principle of the freedom of the seas which granted free navigation and fishing. In the first decades of the twentieth century, states began extending their claims to the seabed and its subsoil adjacent to their coasts to protect exclusive right of exploitation of sedentary fisheries and mining through tunneling. The seaward orientation gained new impetus in the immediate aftermath of WW II as new drilling technology became available and the continental shelf came to be seen as a new frontier for offshore oil extraction.

The landmark assertion of exclusive jurisdiction over the continental shelf was made by the United States of America in the Truman Proclamation of September 28th, 1945, in the aftermath of the discovery of petroleum and minerals off the US Atlantic coast. President Harry Truman asserted that the shelf is an extension of the land mass and “naturally appurtenant to it” and hence its resources are part of a resource pool lying within the national territory. He also argued for the necessity to control and manage the utilization and conservation of marine resources from the shore. By 1956, approximately twenty-five states had unilaterally claimed sovereignty or jurisdiction over the shelf or exclusive rights to mineral resources in it. These claims reflected an emerging universal consensus on the legitimacy of an exclusive control of coastal states over the continental shelf. The appurtenance principle – the idea of the natural prolongation of land into and under the sea and the shelf being a legal extension of the territory – prevailed as the dominant justification.

The UNCLOS, adopted in 1982 after a series of conferences, created a complex legal regime for the continental shelf. Article 77 (3) states that the rights of the coastal state over the continental shelf do not depend on its effective or notional occupation or on any express proclamation. The key matter is the delimitation of its outer limit. Article 76 sets the default boundary to the outer edge of the continental margin or at a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance. Where the margin extends beyond 200 nm, the UNCLOS allows the extension to the outermost edge of the continental margin. Overall, the continental shelf’s reach shall not extend more than 350 nautical miles past a state’s baseline or 100 nautical miles from its 2,500-meter isobath (the line connecting points 2,500-meters below the water’s surface), whichever is more favorable to the applying state.

The possibility to extend the continental shelf to a maximum possible distance and thus acquire exclusive rights over mineral and fossil fuel deposits and other potentially valuable resources of the seafloor is currently sought by most coastal countries in the world. Ninety three applications for an extended continental shelf have been filed with CLCS since the first submission was made by Russia in 2001. Many claims of neighboring countries overlap – China’s and Japan’s, Japan’s and South Korea’s, Japan’s and Russia’s, Malaysia’s and Indonesia’s to name just a few. As in the Arctic, a tense staking out of conflicting claims to large continental shelves is taking place in the South China Sea where the overlapping claims of Malaysia, Vietnam and the Philippines clash with China’s illegal claim that almost all of the South China Sea is the domain of its sovereignty.

These delineation disputes will have to be settled through bilateral negotiations by an international tribunal. Since most countries rely on advanced and objective scientific methods to rationalize and legitimize their claims and adhere, for the most part, to legal procedures set by UNCLOS, it is to be expected that the disputes will be settled by peaceful means. The scientific rationalization and legal proceduralization obscures the fact that individual states grab large chunks of the ocean commons based on very contingent geographic features – the size of the territory, the coastal length, the features of underwater geography – and extend problematic forms of governance into fragile and already massively anthropogenically impacted ocean ecosystems. The division of the ocean floor into zones of national jurisdiction thus raises urgent questions of distributive, political, and environmental justice.

Property Rights and Injustice in Underwater Quasi-Territories

The continental shelf is a domain of quasi-sovereignty in the territorial sense – other states are entitled to lay submarine cables and pipelines on national continental shelves and navigate through its superjacent waters and fly above them. It is, however, a zone of full and exclusive sovereign rights over natural resources – minerals and other non-living resources of the seabed and its subsoil, and living organisms belonging to immobile ‘sedentary species’ (clams, oysters, sponges and corals, and crustaceans).

The sovereign rights to natural resources are not an invention of the law of the sea. They mirror the principle of “permanent sovereignty over natural resources” – one of the most important principles of international law which grants states permanent, supreme, and exclusive rights to natural wealth and resources within their territories. It implies the right for every state to freely use the natural resources, to manage them through national policies, to subject them to property rights and extraction contracts, and freely decide on the allocation of revenues. Sovereign rights to natural resources are essentially property rights belonging to states and protecting their supreme political control over natural wealth within a territorial domain and their exclusive access to economic benefits resources provide.

Extending and imposing sovereign property rights onto continental shelves is problematic from three main points of view. First of all, the delimitation of national continental shelves reinforces and extends the already highly unequal division of natural resources. Large countries with long coastlines have grabbed large chunks of continental shelves, whereas small countries with short coastlines got much smaller shares. Landlocked countries come out empty-handed, with no share of the potential continental shelf wealth. The reform, in other words, entrenches existing inequality in territorial and resource holdings. Through extended continental shelves, big and geographically advantaged countries like Russia, China, the US, or Australia not only magnified their economic wealth, they fortified their political power and geopolitical advantages. Russia, the largest country in the world by landmass and richest in terms of natural wealth, now controls the largest continental shelf on Earth with enormous untapped reserves of hydrocarbons. Australia asserts rights over extended continental shelf the area of which is larger than its landmass, due to its geography and also because of the control over Heard and McDonald Islands – tiny, barren, and uninhabited islands north of eastern Antarctica which sit on an underwater mountain range.

Secondly, the sovereign rights to natural resources in their current form do not promote just use of natural resources. The exercise of sovereign rights is not effectively limited by norms of procedural and political justice implied in democracy, constitutionalism, and human rights. There are many cases of authoritarian, corrupt, and human rights-violating governments which exercise their sovereignty, including rights to natural resources, unconstrained – they decide on resource policies, investment and extraction contracts, and control resource rents and revenues. Corrupt and undemocratic governance, along with failures to fairly distribute economic benefits and social and environmental impacts of resource extraction, are endemic political defects in the exercise of sovereign resource rights. The unjust resource politics has been extended offshore. The Persian Gulf, to name just one example, is the region which holds approximately two-thirds of the world’s estimated proven oil reserves and one-third of its natural gas reserves. It has been divided up among monarchical petrostates in which unaccountable ruling elites fully control oil-dependent economies and use revenues for their private benefit and to maintain autocratic rule.

Thirdly, the creation of the continental shelf as a zone of sovereign jurisdiction is part of the legal deconstruction of the ocean ecosystem into a multidimensional space of extractive sites which are allocated to specific agents in order to protect their compelling interests such as economic development or political control and self-determination. Sovereign rights protect these interests by identifying parts of marine environments and ecosystems as economic goods and authorizing their extraction out of their complex, interconnected and symbiotic ecosystems. Legal and economic reification of ‘marine natural resources’ and their extraction greatly disrupts and harms marine life by causing pollution, noise, and release of greenhouse gases which further exacerbate climate change and its impact on the oceans (acidification, sea level rise, biodiversity loss). Oil spills, an unavoidable externality of offshore drilling, have disastrous consequences for marine environment and also coastal communities and economies.

Zones of sovereign rights in the ocean commons have already swallowed most known and exploitable natural wealth on planet Earth. The bulk of valuable natural resources on land and on sea, is now divided among states – entities which are highly unequal in multiple dimensions, such as their size, geographic conditions, institutions, and hence differently positioned with regard to the capacity to benefit from natural wealth. The UNCLOS reform replaced the previous system of unconstrained exploitation of open access commons by selected few and secured equal opportunity for every state to use parts of common resources. Yet, the paradigm of extractive nationalization has not achieved the best results for the ocean commons and its resources. It entrenched inequality and poor governance. Its extractivist rationale is also fundamentally at odds with the imperative to tackle the environmental and climate crisis through policies that safeguard the ocean as an ecosystem and prevent its further depletion and environmentally harmful exploitation.

Image credit: https://sovereignlimits.com/blog/more-to-maritime-boundaries-the-extended-continental-shelf (overlapping claims to extended continental shelves in the Arctic Ocean)