Lexpert Special Editions

Global Mining November 2013

The Lexpert Special Editions profiles selected Lexpert-ranked lawyers whose focus is in Corporate, Infrastructure, Energy and Litigation law and relevant practices. It also includes feature articles on legal aspects of Canadian business issues.

Issue link: https://digital.carswellmedia.com/i/191259

Contents of this Issue

Navigation

Page 12 of 31

this zone to 12 nautical miles and have afforded coastal states preferential economic jurisdictions reaching up to 200 nautical miles. These customary practices were first codified in four separate multilateral conventions in 1958.2 Although these conventions remain in force, the UNCLOS elaborates a more comprehensive and universally accepted regime, and 165 states have ratified or acceded to the treaty. One stated purpose of this treaty is to promote a just and equitable international economic order by developing and codifying principles for the proper allocation of resources and responsibility for seas and oceans. The convention provides for the preferred method of establishing coastal baselines, the delimitation of the territorial sea and contiguous zone, the right to innocent passage over these waterways, the exclusive economic zone, as well as the extended continental shelf. While the UNCLOS encompasses the customary practices of the law of the sea, it also elaborates a regime that permits ratifying parties to extend their continental shelf, and in turn their economic rights, up to a 350-nautical-mile limit or up to 100 miles from the 2,500-metre isobaths. Those parties looking to expand their coastal rights, as is the case in the Arctic Ocean, must comply with the methodology set out in Section 76(8) of the UNCLOS. After they have made submissions based on equitable geographical representation, the CLCS will make recommendations to each coastal state for the outer limits of its continental shelf. Once established, these limits will be final and binding and the coastal state shall have sovereign rights to the exploration and exploitation of the natural resources of the seabed and subsoil of its extended continental shelf. Where states with opposite or adjacent coasts wish to delimit their continental shelf, the UNCLOS dictates that the delimitation will be effected by way of agreement between the states. If the states are unable to reach agreement within a reasonable time frame, the dispute will be resolved under the regime provided for in Part XV of the UNCLOS. Notably, Section 287 of Part XV of the UNCLOS establishes jurisdiction for the resolution of disputes by the International Tribunal for the Law of the Sea, the International Court of Justice (ICJ) and other arbitral tribunals constituted in accordance with the convention. However, where international disputes arise, so do issues of sovereignty. As is the case in the High Arctic, the settlement of disputes will be dependent on the will of the parties. States are often reluctant to refer their disputes to adjudicators, as they perceive it to be an infringement on their sovereignty.3 Further, the CLCS will not consider nor make any recommendations for any submission made where a land or Maritime dispute exists.4 Therefore, disputes must be resolved prior to recognition by the CLCS of the outer limits of a state's continental shelf. While disputes between parties to the UNCLOS may be referred to the forum agreed upon under the convention, disputes involving non-parties must be settled through diplomatic relations, which may lead to intervention by the ICJ. Although competing claims remain unresolved in the High Arctic, the five northern parties have convened at the Arctic Ocean Conference in May of 2008 and agreed to the "orderly settlement of any possible overlapping claims."5 Until the United States ratifies the UNCLOS, this co-operation among the five Arctic leaders may be the only avenue available for resolving the disputes prior to referring the matter to the ICJ. The potential wealth of subsoil resources in the Arctic raises the stakes of the territorial claims in the area. The High Arctic countries are set to make submissions to the CLCS on the extension of Lawson Lundell LLP > Lawson Lundell LLP has a long-established domestic and international mining practice that spans the range of legal services required by mining companies around the world and in Canada. The firm's clients range from junior companies carrying on early-stage exploration to international companies with investments and projects spread across the globe. Lawson Lundell has an active northern practice with a highly experienced mining team advising Canadian and international clients on many of the mining projects that are currently operating or proposed in the Canadian Arctic. With offices in Vancouver, Calgary and Yellowknife, they bring their local knowledge as well as the full resources of their firm to support their clients with their business needs and major project developments in the North. Baldwin, Christopher G. Lawson Lundell LLP (604) 631-9151 cbaldwin@lawsonlundell.com > Chris advises on acquisitions and dispositions of mines and mining companies, project development and mine operations throughout Canada and the world. He is one of Canada's top mining lawyers. Lexpert Leading 500 Lawyers in Canada has recognized Chris for mining law every year since 1999. Best Lawyers in Canada has recognized Chris as Mining Lawyer of the Year in Vancouver for 2013. Chambers Global has ranked Chris as a "Leader in his Field". Abdel-Barr, Khaled Lawson Lundell LLP (604) 631-9233 kabdel-barr@lawsonlundell.com > Khaled advises on acquisitions and dispositions, strategic partnering and alternative financing arrangements in respect of mines and mining projects throughout Canada and the world, as well as a broad range of mining-related matters pertaining to all phases of the mining cycle, from exploration, project development and production, to reclamation and mine closure. He is recognized as a leading mining lawyer by Best Lawyers in Canada. MacMillan, Karen L. Lawson Lundell LLP (604) 631-9160 kmacmillan@lawsonlundell.com > Karen advises mining clients on acquisitions and dispositions of mines and related assets and in connection with a wide range of project-related and commercial arrangements, within Canada and internationally, including corporate structuring, procurement, construction and engineering, joint ventures, exploration alliances and other strategic relationships. their continental shelves, which will ensure international recognition of their exclusive interest in the exploration and exploitation of the natural resources found in the seabed and subsoil of the region. However, until ratification of the UNCLOS by the United States, the delimitation of the outer limits of the extended continental shelves in the Arctic will likely be brought about by diplomatic cooperation, rather than by application of the treaty. Such delineation is one critical step forward towards opening up the polar region to resource development. 1 John H Currie, Public International Law, 2d ed (Toronto: Irwin Law, 2008) at 288.; 2 Convention on the Territorial Sea and Contiguous Zone, 29 April 1958, 516 UNTS 205 (entered into force 10 September 1964); Convention on the Continental Shelf, 29 April 1958, 499 UNTS 311 (entered into force 10 June 1964); Convention on the High Seas, 29 April 1958, 450 UNTS 11 (entered into force 30 September 1962); Convention on Fishing and Conservation of the Living Resources of the High Seas, 29 April 1958, 559 UNTS 285 (entered into force 20 March 1966).; 3 Vicente Marotta Rangel, "Settlement of Disputes Relating to the Delimitation of the Outer Continental Shelf: The Role of International Courts and Arbitral Tribunals" (2006) 21 Int'l J Marine Coastal L 347 at 354-55. 4 Rules of Procedure of the Commission on the Limits of the Continental Shelf, CLCS/40/Rev 1, at Annex I para 5. 5 The Ilulissat Declaration, Arctic Ocean Conference Ilulissat, Greenland, 27-29 May 2009, online: . | WWW.LEXPERT.CA 2013/14 | LEXPERT 13

Articles in this issue

Links on this page

Archives of this issue

view archives of Lexpert Special Editions - Global Mining November 2013