Unilateral actions of delineating 'extended continental shelf', advancing deep-sea mining erode legal order established by UNCLOS: report

By Zhang Dongfang

(ECNS) -- A major power that is not a party of the United Nations Convention on the Law of the Sea (UNCLOS) has invoked customary international law as a pretext to justify its unilateral actions, including delineating a so-called extended continental shelf and advancing deep-sea mining in a unilateral manner, undermining the overall interests of the international community and erode the legal order established by the UNCLOS, according to a report released on Tuesday.

The report, published by the China Institute for Marine Affairs (CIMA) under the Ministry of Natural Resources (MNR), noted that unilateral delineation of continental shelf outer limits beyond 200 nautical miles by a non-party major power represents a paradigmatic exercise of unilateral action.

While the UNCLOS has indeed codified certain pre-existing rules of customary international law, not every provision of the UNCLOS enjoys that status, the report said.

Kevin A. Baumert, a legal counsel of the U.S. Extended Continental Shelf Project under the U.S. Department of State, notes that Article 76, paragraph 8, of the UNCLOS has a "largely procedural character" and lacks a "norm-creating character".

Given the absence of sufficient State practice and opinio juris, this provision does not constitute customary international law, Baumert said.

Moreover, he notes in the American Journal of International Law that the very label "extended continental shelf" is not a legal concept employed by the UNCLOS itself.

According to the report, a state that is not a party to the UNCLOS cannot invoke the convention as the legal basis for claiming an outer/extended continental shelf, nor is there any treaty-based pathway for submitting such claims to the Commission on the Limits of the Continental Shelf (CLCS).

"Its unilateral announcement of such limits is therefore illegal and without legal effect. It encroaches upon the international seabed area (the Area), which is expressly designated as the common heritage of mankind, and thereby injures the overall interests of the international community," it said.

Mineral resource exploration and exploitation in the international seabed area must be conducted exclusively within the framework of the International Seabed Authority, in accordance with the UNCLOS, according to the report.

The ISA has affirmed that the legal mandate to regulate mineral-related activities in the Area rests solely with the ISA and the regime governing the deep seabed beyond national jurisdiction, established by the UNCLOS, has been carefully articulated and developed precisely to prevent unilateral actions and parallel avenues.

The unilateral action of deep-sea mining by the non-party major power not only compromises the integrity of the whole UNCLOS and the comprehensive regime it establishes, but also undermines the legitimacy of the multilateral system, the report said.