Such narrative, despite some level of hyperbolism, may offer useful insights to
the analysis of resource development in areas where maritime borders are relatively
well-defined. In other words, it does not take a region such as the Arctic, with the
aggravating factor of climate change melting ice-covered areas that will allow for
unseen exploitation of the Arctic seabed, to identify a “race to resources” of the
continental shelf. Within national jurisdiction, coastal states are enticed not only by
the riches, but also by interests of enhanced oceanopolitical influence offshore.
25
That is the case, inter alia, of Brazil, as Chaps. 9 and 10 show.
An alternative discourse is that coastal states do nothing less than what is
expected from rational agents: to claim jurisdiction over a maritime space that was
attributed to them by an international legal treaty, so as to exercise their rights and
obligations in line with international law. That is the core of the narrative that detects
in the law of the sea, namely UNCLOS, the elements for an “orderly development”
of marine natural resources.
26 For sympathizers of this discourse, UNCLOS has
effectively supported the interests of broad-margin states with an array of rules for
the delineation of outer limits of the continental shelf. Hence, it would be outright
irrational not to make use of such rules and exercise jurisdiction in the terms of the
Convention.
27 Applied to the Arctic, such a discourse emphasizes the role of
international cooperation in the orderly exploitation of marine resources, proof of
which is the Ilulissat Declaration,
28 in which the five Arctic states have agreed to
pursue continental shelf entitlements in an orderly fashion.
However rational and desirable that “orderly development” may be, one must not
forget the enormous enforcement challenge placed upon international law. It should
not be forgotten that international law consists, in essence, of a malleable set of rules
and principles, some of which deliberately vague and self-contradicting, which can
serve multiple constituencies and interests.
29 One ought, thus, to approach the
“orderly development” narrative with caution, not taking international law as a
belief, but as an earthly tool for shaping behavior and influencing policy in a highly
decentralized international system. All the more so in light of the potential for
conflict regarding the outer continental shelf, where the opposition between
UNCLOS’ provisions, CLCS recommendations, and coastal states’ own political
strategies form an explosive mix of variables with capacity to undermine any wishful
orderly development of continental shelf resources.
In short, the estimated value of those resources, added to the fact that more than
30 million km
2 of ocean floor is currently under some sort of jurisdictional claim by
coastal states, make it urgent to understand the exact legal regime applicable to the
25 The concept of “oceanopolítica”, from the Spanish, has been broadly used by Chilean scholars
and military strategists, so as to emphasize the need for a national policy aimed at ensuring Chilean
interests over its “oceanic territory”. Busch (1993), pp. 203–207.
26 Koivurova (2011), p. 216.
27 Id. 221.
28 Ilulissat Declaration, Arctic Ocean Conference, Ilulissat, Greenland, 27–29 May 2008.
29 Criticisms of this kind to international law are to be found in Koskenniemi (2012), p. 306.
52
3 The Continental Shelf Beyond 200 nm: Innovations in Art. 76 UNCLOS
the analysis of resource development in areas where maritime borders are relatively
well-defined. In other words, it does not take a region such as the Arctic, with the
aggravating factor of climate change melting ice-covered areas that will allow for
unseen exploitation of the Arctic seabed, to identify a “race to resources” of the
continental shelf. Within national jurisdiction, coastal states are enticed not only by
the riches, but also by interests of enhanced oceanopolitical influence offshore.
25
That is the case, inter alia, of Brazil, as Chaps. 9 and 10 show.
An alternative discourse is that coastal states do nothing less than what is
expected from rational agents: to claim jurisdiction over a maritime space that was
attributed to them by an international legal treaty, so as to exercise their rights and
obligations in line with international law. That is the core of the narrative that detects
in the law of the sea, namely UNCLOS, the elements for an “orderly development”
of marine natural resources.
26 For sympathizers of this discourse, UNCLOS has
effectively supported the interests of broad-margin states with an array of rules for
the delineation of outer limits of the continental shelf. Hence, it would be outright
irrational not to make use of such rules and exercise jurisdiction in the terms of the
Convention.
27 Applied to the Arctic, such a discourse emphasizes the role of
international cooperation in the orderly exploitation of marine resources, proof of
which is the Ilulissat Declaration,
28 in which the five Arctic states have agreed to
pursue continental shelf entitlements in an orderly fashion.
However rational and desirable that “orderly development” may be, one must not
forget the enormous enforcement challenge placed upon international law. It should
not be forgotten that international law consists, in essence, of a malleable set of rules
and principles, some of which deliberately vague and self-contradicting, which can
serve multiple constituencies and interests.
29 One ought, thus, to approach the
“orderly development” narrative with caution, not taking international law as a
belief, but as an earthly tool for shaping behavior and influencing policy in a highly
decentralized international system. All the more so in light of the potential for
conflict regarding the outer continental shelf, where the opposition between
UNCLOS’ provisions, CLCS recommendations, and coastal states’ own political
strategies form an explosive mix of variables with capacity to undermine any wishful
orderly development of continental shelf resources.
In short, the estimated value of those resources, added to the fact that more than
30 million km
2 of ocean floor is currently under some sort of jurisdictional claim by
coastal states, make it urgent to understand the exact legal regime applicable to the
25 The concept of “oceanopolítica”, from the Spanish, has been broadly used by Chilean scholars
and military strategists, so as to emphasize the need for a national policy aimed at ensuring Chilean
interests over its “oceanic territory”. Busch (1993), pp. 203–207.
26 Koivurova (2011), p. 216.
27 Id. 221.
28 Ilulissat Declaration, Arctic Ocean Conference, Ilulissat, Greenland, 27–29 May 2008.
29 Criticisms of this kind to international law are to be found in Koskenniemi (2012), p. 306.
52
3 The Continental Shelf Beyond 200 nm: Innovations in Art. 76 UNCLOS