The United States, in violation of international mechanisms such as the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and the Scientific and Technical Guidelines of the Commission on the Limits of the Continental Shelf, has unilaterally defined the outer limits of its extended continental shelf (ECS).
According to the US State Department, its ECS is approximately one million square kilometers spread across seven regions, such as the Arctic, Atlantic, Pacific, Bering Sea, two areas in the Mexican Gulf and the waters around Mariana Islands.
The determination of the US ECS was led by the US State Department, through the U.S. ECS Task Force, an interagency body of the US Government composed of 14 agencies, which includes National Oceanic and Atmospheric Administration (NOAA) and U.S. Geological Survey (USGS).
This unilateral determination by Washington of its ECS contravenes UNCLOS as areas beyond a state’s exclusive economic zone are considered international waters and constitute as the common heritage of humankind.
It should be noted that while the US makes mention of both the UNCLOS and the UN CLCS in its ECS outer limits determination, it is not a party to the UNCLOS.
As such, it is under no position as a UNCLOS non-state party to make a submission of its ECS findings to the UN CLCS in order to make its findings ‘final and binding’.
This is in contrast to more than sixty countries which had made submissions to the UN CLCS for the confirmation of their respective ECS outer limits.
Particular consequences of the US’ unilateral determination of its ECS outer limits include rising tensions with states which have competing claims over the same ECS areas, such as Japan, which has not concluded a boundary treaty delimiting the continental shelf in the Pacific region.
The same is true in the Arctic region, in which Canada and Russia may raise questions on the unilateral determination of the US of its ECS outer limits.
The US and Canada do not have a maritime boundary agreement in the Arctic, and both have overlapping ECS areas. On the other hand, the US ECS determination extends beyond the previously agreed-upon maritime boundary with Russia.
Furthermore, non-US Arctic states such as Canada, Russia, Denmark and Norway have made submissions to the UN CLCS for the delimitation of their ECS.
Given these premises, the unilateral US delimitation of its ECS outer limits is a cause for concern of the international community, as this is being undertaken without the support and consensus of the international community through mechanisms such as the UNCLOS and the UN CLCS.
It places Washington into a contradictory international position relating to its support to the Philippines, Vietnam and Indonesia relating to their maritime disputes with China over areas in the South China Sea.
Unlike China and other claimant-states in the SCS, which are parties to the UNCLOS, the US has not signed and ratified the international sea convention. Correspondingly, it has no right nor obligation to subject itself to UNCLOS rules nor to seek the recommendation of the UN CLCS for the delimitation of its ECS outer limits.
As such, in the same manner that smaller nations are pushing back against China over its intrusions in the South China Sea, the same nations should also put the US to task over its unilateral delimitation of its ECS outer limits, despite clear overlap with the ECS of other states.
First, the international community should call on the US to sign and ratify the UNCLOS, in order to formally subject itself to the rules-based order defined under the UN Convention, and allow it to submit its ECS findings to the UN CLCS.
Second, the US, in order to show respect and transparency to the international community, may opt to make a submission directly to the UN CLCS as an UNCLOS non-member state. While this is unprecedented, this submission should be seriously considered by the Commission, given that several of its members have overlapping ECS outer limits with the US.
Washington should take note of this as it continues its foray into the Indo-Pacific under the pretext of freedom of navigation, humanitarian assistance and disaster relief.