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Article Excerpt
In November 2008 Japan took steps to "add" around 740,000 [km.sup.2] of seabed to its maritime jurisdiction. Such areas, located seaward of the limits of the 200 nautical mile (nm) Exclusive Economic Zones (EEZ), are often referred to as the "outer" or "extended" continental shelf.
In accordance with the terms of the United Nations Convention on the Law of the Sea (hereafter UNCLOS or "the Convention"), (1) the process through which an interested coastal state can confirm its sovereign rights over areas of outer continental shelf is by making a submission on proposed outer continental shelf limits to a specialized United Nations scientific body--the United Nation's Commission on the Limits of the Continental Shelf (hereafter referred to as "the Commission" or CLCS). The CLCS considers the information submitted and makes recommendations. On the basis of these recommendations, the coastal state may then define "final and binding" outer continental shelf limits. (2)
A deadline for making submissions to the CLCS does, however, exist. The deadline applicable to many, though not all, coastal states has been set as 13 May 2009 (see below regarding this choice of date). In the context of East and Southeast Asia, Japan's submission to the CLCS joined those of the Russian Federation (September 2001) and a partial submission by Indonesia (June 2008). A submission on behalf of Myanmar has also now been made (December 2008) in respect of outer continental shelf areas in the Bay of Bengal. With the May 2009 deadline looming it is understood that a number of other states around the region are in the process of urgently finalizing their submissions.
The relevant provisions of the Convention are multifaceted, require the gathering of detailed scientific information, give rise to a number of interpretational and practical challenges and are all too readily misunderstood. This article therefore sets out to explore and, at least to an extent, to clarify the complex legal and geoscientific dimensions of the process of preparing for and making a submission in respect of continental shelf areas seaward of the 200 nm limit, with particular reference to East and Southeast Asia. Firstly, claims to maritime jurisdiction and the key concept underpinning sovereign rights over outer continental shelf areas--natural prolongation--are introduced. An overview and explanation of the interwoven series of formulae and criteria relevant to outer continental shelf rights laid down in the relevant provisions of the law of the sea is then provided. The composition and competence of the CLCS and its approach will then be considered and a number of practical and interpretational ambiguities and uncertainties highlighted. Attention will then turn to submissions already made to the Commission and the potential for such further submissions will be noted, with particular reference to those from states located in East and Southeast Asia. Finally, the significance of the potential opportunities represented by this process, together with some of the challenges that may arise for the coastal states involved are explored.
Maritime Claims and Continental Shelf Rights
The rights and duties of coastal states in relation to the continental shelf are detailed in Part VI of UNCLOS. There exists wide international acceptance of the Convention as the maritime jurisdictional framework for ocean affairs and those parts of the Convention dealing with maritime claims and maritime boundary delimitation can be considered to be part of customary international law. (3) For example, the vast majority of East and Southeast Asian coastal states are parties to the Convention. (4) It is also the case that these states have proved to be enthusiastic claimants in terms of maritime jurisdictional zones. Territorial seas of 12 nm breadth and 200 nm EEZs have thus become the regional and international norm. (5)
It is the case, however, that continental shelf rights substantially predate the 1982 Convention. Following on from the proliferation of claims sparked by the so-called Truman Proclamation of 1945, when the United States claimed rights over the continental shelf seaward of its then three nm territorial sea limit, coastal state rights over the continental shelf were enshrined in the Continental Shelf Convention of 1958. (6) The International Court of Justice (ICJ), through its Judgment in the North Sea Continental Shelf cases of 1969, introduced the concept of "natural prolongation" such that coastal states have rights over that part of the continental shelf that constitutes "a natural prolongation of its land territory" and determined that this should be a key consideration in delimiting the continental shelf. (7)
A significant evolution in the international law of the sea took place with the introduction of the EEZ, codified through UNCLOS. In accordance with the EEZ concept, every coastal state has the right to claim sovereign rights over both the seabed and water column extending to 200 nm. Thus, every coastal state has a right to the continental shelf out to the 200 nm limit as part of the EEZ, regardless of whether the continental margin actually extends that distance offshore. These rights are, however, governed in accordance with Part VI (dealing with the continental shelf) of the Convention rather than Part V (dealing with the EEZ). A key achievement of the Convention, in respect of the continental shelf specifically, was the drafting of Article 76 which provides for a definable outer limit to the continental shelf claims of coastal states in a significant step forward from the open-ended exploitability criteria contained in the 1958 Convention. (8)
It is also important to observe that continental shelf rights are inherent and "do not depend on occupation, effective or notional, or on any express proclamation". (9) Additionally, the rights of a coastal state over the continental shelf "do not affect the legal status of the superjacent waters". (10) The term "extended" continental shelf therefore gives a somewhat misleading impression that coastal states are somehow extending or advancing claims to "additional" areas of continental shelf. This is not quite the case as the sovereign rights enjoyed by the coastal state over the continental shelf are, as indicated above, inherent. In a sense then, the coastal states making submissions to the CLCS are merely seeking to confirm their existing sovereign rights over parts of "their" continental shelf beyond the 200 nm limit.
Defining the Outer or Extended Continental Shelf
Article 76(1) of UNCLES establishes that the continental shelf of a coastal state consists of "the seabed and subsoil of submarine areas" and extends to a distance of 200 nm from relevant baselines. Thus, in accordance with the right of coastal states to claim a 200 nm EEZ, coastal states are entitled to at least a 200 nm continental shelf provided that there is no overlapping claim with neighbouring states. However, where a coastal state is located on a broad continental margin, and that margin extends beyond 200 nm from its relevant baselines, UNCLES provides that the coastal state may be able to assert rights over that part of the continental shelf beyond the 200 nm limit that forms part of its natural prolongation. Article 76(1) goes on to provide an alternative to the 200 nm limit such that the continental shelf extends, "throughout the natural prolongation of its land territory to the outer edge of the continental margin". While no sure figure can be determined until all outer continental shelf submissions have been considered by the CLCS, it has been estimated that outer continental shelf areas may encompass around five per cent of the ocean floor. (11)
Article 76 provides a complex series of provisions relating to the coastal state establishing the location of the outer edge of the continental margin where that margin extends beyond 200 nm from its baselines. Essentially, Article 76 provides two formulae according to which coastal states can establish the continental shelf beyond the 200 nm limit and two maximum constraints, or "cut-off" lines.
Both of the entitlement formulae are measured from the foot of the continental slope which is defined as the point of maximum change in gradient at the base of the continental slope. (12) From the foot of the continental slope the existence of a continental margin seaward of the 200 nm limit may be established either through reference to depth or thickness of sedimentary rocks overlying the continental crust (the Gardiner Line), or by using a distance formula (the Hedberg Line), which consists of a line no more than 60 nm from the foot of continental slope. (13) The coastal state has the option of applying whichever of these two formulae is most advantageous to it.
The two entitlement formulae or criteria described above (the Hedberg and Gardiner Lines) allow a coastal state to establish that a continental margin exists beyond 200 nm from its baselines. However, Article 76 also contains two constraints on the outer limits of a state's continental shelf. The first of these "cut-off" lines is defined as "350 nautical miles from the baselines from which the breadth of the territorial sea is measured". (14) This is therefore a distance-based cut-off line composed of an envelope of 350 nm arcs from the coastal state's baselines. The alternative constraint line involves both distance and water depth consisting of "100 nautical miles from the 2,500 metre isobath", which is a line connecting the depth of 2,500 metres. (15) Figure 1 illustrates the outer limits of continental shelf.
[FIGURE 1 OMITTED]
Article 76 also contains specific, though potentially problematic, provisions concerning how the constraint lines mentioned above are to be applied to submarine ridges and analogous features (see below). Furthermore, Article 76 provides that the coastal state shall define the outer limits of its continental shelf where it extends beyond 200 nm from its baselines "by straight lines not exceeding 60 nautical miles in length, connecting fixed points defined by coordinates of latitude and longitude". (16)
The United Nations Commission on the Limits of the Continental Shelf (CLCS)
The procedure for establishing a claim to continental shelf areas beyond 200 nm from the coast is for an interested coastal state to prepare a submission for consideration by the CLCS. The Commission is a body consisting of twenty-one scientists. One important aspect to note is that the Commission is not a legal body and it does not therefore adjudicate on submissions. Instead, the Commission has technical capacity to evaluate whether or not the outer limits of the continental shelf delineated by coastal states fulfil the requirements set in Article 76 of the Convention. The CLCS will then make "recommendations" to the coastal state on the basis of which the coastal state can establish limits that are "final and binding". (17) A submission to the Commission is required if the coastal state wants to confirm its sovereign rights over continental shelf beyond 200 nm from the baseline.
There exist contrasting views on the role of the CLCS. Some commentators see the role of the Commission as, in effect, a guardian against excessive national claims and protector of the international seabed beyond national jurisdiction, known as the "Area", which forms part of the common heritage of mankind. (18) This is not, however, necessarily quite the case. Instead, the Commission appears to be more adopting the role of partner to the submitting states, working to help them realize their ambitions to confirm their sovereign rights over the maximum area of outer continental shelf possible, rather than acting as some kind of "gamekeeper" and defender of the international seabed.
Issues and Uncertainties
The question of outer continental shelf claims in accordance with Article 76 of the Convention is undoubtedly both legally and scientifically complex. A number of notable "complexities and ambiguities" have arisen in relation to both the interpretation and implementation of Article 76 of UNCLOS and with respect to the way in which the Commission works. (19) These are and will be of relevance to the coastal states of East and Southeast Asia as they prepare for and make their submissions and a number of these issues are outlined below.
Data Gathering and Uncertainties in the Application of Article 76
It is clear from the foregoing review of the key provisions of Article 76 that demonstrating to the Commission that seabed areas beyond the 200 nm limit properly form part of a coastal state's extended continental shelf is no easy task. Detailed geoscientific information is required in respect of the geology (composition) and morphology (shape) of the continental margins in question. Additionally, bathymetric (depth) data is needed, as are geodetically robust (that is, accurate) distance measurements from the coastal state's coastal baselines. As existing data...
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