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In accordance with the United Nations Convention on the Law of the Sea of 1982 and the guidelines of the Commission on the Limits of the Continental Shelf, coastal states are to establis

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Coastal States in the South China Sea and Submissions on the Outer Limits of the Continental Shelf

Nguyen Hong Thao a & Ramses Amer b a

Faculty of Law , Vietnam National University , Hanoi, Vietnam b

Department of Oriental Languages , Stockholm University , Stockholm, Sweden

Published online: 05 Aug 2011

To cite this article: Nguyen Hong Thao & Ramses Amer (2011) Coastal States in the South China Sea

and Submissions on the Outer Limits of the Continental Shelf, Ocean Development & International Law, 42:3, 245-263, DOI: 10.1080/00908320.2011.592473

To link to this article: http://dx.doi.org/10.1080/00908320.2011.592473

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ISSN: 0090-8320 print / 1521-0642 online

DOI: 10.1080/00908320.2011.592473

Coastal States in the South China Sea and Submissions on the Outer Limits

of the Continental Shelf

NGUYEN HONG THAO Faculty of Law

Vietnam National University Hanoi, Vietnam

RAMSES AMER Department of Oriental Languages Stockholm University

Stockholm, Sweden

The purpose of this article is to examine the outer continental shelf submissions made

by the coastal states of the South China Sea and their potential impact on legal and political developments in the South China Sea In accordance with the United Nations Convention on the Law of the Sea of 1982 and the guidelines of the Commission on the Limits of the Continental Shelf, coastal states are to establish the outer limits of their continental shelf where it extends beyond 200 nautical miles Meeting this obligation is complicated in enclosed or semienclosed seas where there are maritime disputes such

as in the South China Sea.

Keywords continental shelf, South China Sea

Introduction

The purpose of this article is to examine the submissions on the outer limit of the continental shelf beyond 200 nautical miles made by the coastal states of the South China Sea and the potential impact of the submissions on the legal and political situation in the South China Sea Pursuant to the United Nations Convention on the Law of the Sea of 1982 (UNCLOS 1982),1coastal states with a shelf area beyond 200 nautical miles are obligated

to submit information to the Commission on the Limits of the Continental Shelf (CLCS)2 Received 28 October 2010; accepted 21 January 2011

This article is a revised version of a paper prepared for the Sixth Advisory Board on the Law of the Sea (ABLOS) Conference, hosted by the International Hydrographic Bureau, Monaco, October 25–27, 2010

Address correspondence to Professor Nguyen Hong Thao, Faculty of Law, Vietnam National University, Hanoi, Vietnam E-mail: nguyenhongthao57@gmail.com and Ramses Amer, Senior Re-search Fellow, Department of Oriental Languages, Stockholm University, Guest ReRe-search Professor, National Institute for South China Sea Studies, Haikou, and Research Associate, Swedish Institute

of International Affairs, Stockholm, Sweden E-mail: ramses.amer@orient.su.se

245

for the purpose of establishing the outer limit of their shelf area The implementation of this obligation is complicated in enclosed or semienclosed seas where there are maritime disputes such as in the South China Sea According to UNCLOS 1982, coastal states must meet a double requirement: fulfill the obligation of making submissions on the outer limit of the continental shelf and do so without prejudice to the rights (and interests) of the regional community and other neighboring states The best option is cooperation and mutual understanding between regional coastal states based on a correct and objective interpretation of UNCLOS 1982 as well as the Scientific and Technical Guidelines of the CLCS.3

The Continental Shelf Beyond 200 Nautical Miles and the Work of the CLCS

UNCLOS 1982 entered into force in 1994 In accordance with its provisions, each coastal state has the right to have a 12-nautical-mile territorial sea, a 200-nautical-mile exclusive economic zone (EEZ), and an adjacent continental shelf The latter comprises

the sea-bed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge

of the continental margin does not extend up to that distance.4

In accordance with this wording, each coastal state has a right to a continental shelf of 200 nautical miles Depending on the natural characteristics of its continental margin, some coastal states may have the right to a continental shelf that extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured The outer limit of the shelf beyond 200 nautical miles is to be established by either

(i) a line of the outermost fixed points at each of which the thickness of sedimentary rocks is at least 1 per cent of the shortest distance from such point to the foot of the continental slope; or

(ii) a line of the outermost fixed points not more than 60 nautical miles from the foot of the continental slope

In either case, the line of the outermost fixed points is not to exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured or 100 nautical miles from the 2,500-meter isobaths, which is a line connecting the depth of 2,500 meters.5 Article 76, paragraph 8, of UNCLOS 1982 further states that

information on the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured shall be submitted by the coastal State to the Commission on the Limits of the Continental Shelf set up under Annex II on the basis of equitable geographic representation The Commission shall make recommendations to coastal States

on matters related to the establishment of the outer limits of their continental shelf The limits of the shelf established on the basis of these recommendations shall be final and binding

Article 76 of UNCLOS 1982 refers to coastal states without being qualified as states parties There are issues regarding: the legal nature of the extended continental shelf beyond 200 nautical miles; the rights and obligations of states parties and non-states parties of UNCLOS

1982 concerning submissions to the CLCS; the criteria for the establishment of the outer limit of the continental shelf; and the role of the CLCS.6

The limit of the continental shelf beyond 200 nautical miles is defined in a different way compared with other maritime zones, such as the territorial sea and the EEZ, because delineation does not depend exclusively on the distance factor Nevertheless, from a legal point of view, there is no difference between the continental shelf out to 200 nautical miles and the extended continental shelf beyond 200 nautical miles The legal continental shelf of

a coastal state extends from its coast throughout the natural prolongation of its land territory Natural prolongation reflects the principle that the “land dominates sea.” It is legally derived from the 1945 Truman Proclamation on the Continental Shelf through which the United States claimed competence over hydrocarbon activity within its continental shelf7and from

the International Court of Justice in the North Sea Continental Shelf Cases in 1969,8and is affirmed by state practice.9Moreover, a coastal state’s right to its adjacent continental shelf was codified in the 1958 Geneva Convention on the Continental Shelf.10 Consequently, states parties to UNCLOS 1982 and non-states parties have the same right to extend their continental shelf based on natural prolongation.11However, the non-states parties do not need to strictly follow the procedural obligation to submit their outer limit of the continental shelf beyond 200 nautical miles to the CLCS

According to Annex II, Article 4, of UNCLOS 1982, the timeline for the submission to the CLCS was to be within 10 years of the entry into force of the Convention for coastal states parties However, the timeline was modified and fixed at 13 May 2009 through a decision

on 29 May 2001 at the Eleventh Meeting of the UNCLOS 1982 States Parties (SPLOS).12

A decision adopted at the Eighteenth Meeting of the SPLOS on 20 June 2008 allows coastal states, in particular developing countries, including small island developing states that face a lack of financial and technical resources and relevant capacity and expertise or other similar constraints, to meet the 2009 timeline by submitting preliminary information indicative of the outer limits of the continental shelf beyond 200 nautical miles.13 The preliminary information is not to be acted on by the CLCS and is without prejudice to a subsequent full submission This raises the question about whether coastal states that did not make either a submission or a preliminary information indication by the 2009 deadline would lose their rights over the extended continental shelf beyond 200 nautical miles The answer is no since there is an inherent right of the coastal state over the natural prolongation

of its continental shelf.14

By meeting the time requirement for submissions, coastal states have shown their de-termination to fulfill the UNCLOS 1982 obligation Up to 13 May 2009, 51 submissions and 45 preliminary information indications were submitted Four subsequent submissions have been received from Mozambique, Maldives, Denmark, and Bangladesh.15The sub-missions contribute to the creation of a more full picture of the outer limits of the continental shelves for coastal states as well as the limits of the international seabed area The further that the outer limits of continental shelves are into the sea, the narrower the international seabed area where mineral resources are within the jurisdiction of the International Seabed Authority (ISA).16The ISA, while directly affected by the Article 76 criteria and process, has no role in the determination of the common boundary between the international seabed area and the extended continental shelf beyond 200 nautical miles.17

The function of the CLCS is threefold; first, to consider the data and other material submitted by coastal states concerning the outer limits of the continental shelf in areas

where those limits extend beyond 200 nautical miles; second, to make recommendations

to the coastal states in accordance with Article 76; and, third, to provide scientific and technical advice, if requested by a coastal state, during the preparation of the data referred

to in the submission process.18

Article 9 of Annex II to UNCLOS 1982 provides that “the actions of the Commission shall not prejudice matters relating to delimitation of boundaries between States with opposite or adjacent coasts.” Thus, it can be understood that the CLCS

–has no function in supporting the position of any party, imposing or influencing negotiations on the continental shelf boundary delimitation between States with overlapping claims over their extended shelf;

–is not to be involved in any matters regarding the determination of the outer limits of a coastal State’s extended shelf in cases of unresolved land or maritime disputes.19

Disputes on the delimitation of the continental shelf between states with opposite or adjacent coastlines, or other cases of unresolved maritime disputes or over insular formations, do not prevent the coastal states from making submissions to the CLCS.20Submissions may be made and may be considered in accordance with Annex 1 of the Rules of Procedure of the CLCS The coastal state making a submission is required to inform the CLCS of a dispute and to ensure, to the extent possible, that the submission will not prejudice matters relating

to the delimitation of boundaries or maritime disputes between states If a submitting state fails to comply with the above obligation to inform, the CLCS must be informed of a dispute

by other states; otherwise, based on paragraph 1 of Annex I of the Rules of Procedure, the CLCS will have no reason to take into account a dispute situation in its process The Rules of Procedure of the CLCS encourage submitting states, before making a submission, to obtain the prior consent of other states that might potentially be involved When the CLCS receives the consent of all states that are parties to a dispute involved in a submission, the CLCS is able to consider that portion of the submission covered by the consent.21To facilitate the work of the CLCS in consideration of a submission and to avoid third-party intervention,

a submitting state can make a partial submission covering only the portion outside an area

of dispute22or it can make a joint submission with the other claimant Thus, in the CLCS process, there are not only submitting states, but there can also be other states interested in the submission Paragraph 5(a) of Annex I of the Rules of Procedure of the CLCS directs that, in cases “where a land or maritime dispute exists, the CLCS shall not consider and qualify a Submission made by any of the States concerned in the dispute.” Thus, there are situations where the CLCS cannot proceed with a submission It can be asserted that a “land” dispute refers to a sovereignty dispute over insular formations or land such as the situation with respect to Antarctica Maritime dispute, arguably, refers to overlapping claimed areas Paragraph 5(a) not only refers to states involved in a dispute, but also to states not directly party to a dispute but that may have an interest in a dispute Arguably, the wording also extends to states concerned, not only with an ongoing dispute, but also with a situation that may lead to a dispute in the future.23 The deadline for receiving an intervention by third parties is set at 3 months from the date of the publication by the UN secretary-general

of the executive summary of the submission.24The capacity for intervention pursuant to paragraph 5(a) is ensured not only for the states parties to UNCLOS 1982, but also to non-states parties having interests in a dispute and accepting UNCLOS 1982 as a source of the law of the sea

It should be noted that coastal states have the full freedom to determinate their outer limit of the continental shelf The CLCS can make recommendations and other states may protest or otherwise not agree with the determination of an outer limit by a coastal state The CLCS has no authority to impose a limit on a coastal state It is also not the role of the CLCS to impose the limit for safeguarding the interests of the world community relating to the natural resources within the area under the jurisdiction of the ISA The function of the CLCS is to consider the technical and scientific data submitted by coastal states to meet the requirement of the formula to determine the outer limit of the continental shelf beyond 200 nautical miles Under UNCLOS 1982, the limits of the shelf established “on the basis of” the recommendations of the CLCS “shall be final and binding.”25In this sense, the close and effective cooperation between submitting coastal states, the CLCS, and third parties, where it is necessary, creates a mechanism to safeguard the right of the coastal states on the one hand, and the interests of the world community on the other hand

As set out in Article 76, paragraph 8, and in Article 4 of Annex II of UNCLOS 1982, the process of defining the outer limit of the extended continental shelf encompasses several phases In the first phase, a coastal state conducts scientific surveys and collects data to assess where it intends to establish—in accordance with Article 76 and the Guidelines of the CLCS—the outer limits of its continental shelf beyond 200 nautical miles The decision

to make a submission to the CLCS is made by the coastal state by taking into account the collected geodetic data The decision to make a submission is limited by the obligation of the coastal state to not affect the rights of others, including the interests of world community and other concerned states As already noted, a submitting state is to inform the CLCS of existing maritime disputes or disputes over insular formations in the area of submission and must ensure, to the extent possible, that the submission will not prejudice matters relating

to the delimitation of boundaries between states However, it is not easy to define those rights due to the different interpretations by concerned states of the relevant provisions of UNCLOS 1982 and, more generally, of the law of the sea

In the second phase, the CLCS considers the submission The received information is verified by the CLCS under its Rules of Procedure and Scientific and Technical Guidelines Submissions are viewed by a subcommission composed of seven members, unless the CLCS decides otherwise A submitting coastal state may send representatives to participate

in the relevant proceedings.26At the end of the second phase, the subcommission is required

to submit its recommendation to the CLCS The recommendations approved by the CLCS are delivered in writing to the coastal state that made the submission The CLCS is not a juridical body and has no right to accept or reject objections

If the recommendations of the CLCS are accepted by a submitting state, the third phase takes place However, in the case of disagreement by a coastal state with the rec-ommendations of the CLCS, the coastal state is obligated, within a reasonable time, to make a revised or new submission to the CLCS.27In this third phase, the coastal state and the CLCS are expected to cooperate in order to reach accord The third phase can be pro-longed The so-called ping-pong process28—submission, recommendation, resubmission, re-recommendation—continues until the achievement of the mutual accord between the submitting state and the CLCS

The fourth phase is the procedure by which the coastal state is to establish the outer limits of its continental shelf in conformity with the provisions of Article 76, paragraph

8, and in accordance with the appropriate national procedures.29At the fourth stage, after setting the outer limit of the Continental Shelf approved by CLCS, the coastal state has an obligation to deposit the relevant data and map showing their limit of the continental shelf with the Secretary-General of the United Nations.30

A major obstacle for the establishment of the outer limit of the continental shelf is the considerable number of submissions to be considered by the CLCS and its small staff From 1994 to 2008, only nine submissions were made to the CLCS As of 28 April 2011, the CLCS had received 55 submissions from 48 coastal states.31The time needed for the CLCS to do its work leading to recommendations can be illustrated by the following On 31 March 2009, the CLCS gave its recommendation on the submission of Mexico with respect

to the western polygon in the Gulf of Mexico32and, on 15 April 2010, the CLCS gave its two latest recommendations—one on the submission by Barbados33and the other on the submission by the United Kingdom with respect to Ascension Island.34With the current rate of submissions being completed each year, it will take until beyond 2040 before the CLCS can verify and give recommendations for the 55 submissions currently before the CLCS.35In addition to the full submissions, 45 preliminary information indications have been submitted by coastal states to the CLCS

Submissions to the CLCS by the South China Sea Coastal States

Ten coastal states and territories surround the South China Sea.36Brunei Darussalam, China, Indonesia, Malaysia, the Philippines, and Vietnam have pursued different approaches with respect to the issues of the outer limit of the continental shelf Indonesia, Malaysia, the Philippines, and Vietnam have made submissions to the CLCS relating to their extended continental shelves Brunei and China have submitted to the CLCS preliminary information indicative of the outer limits of the continental shelf

Indonesia

Indonesia declared itself an archipelagic state in 1957 by the Presidential Declaration of 13 December 1957 Using the doctrine of archipelagic states, Indonesia drew its archipelagic baselines joining the outermost islands and drying reefs of the archipelagoes in 1960.37 The doctrine of archipelagic states was accepted at the Third United Nations Conference

on the Law of the Sea (UNCLOS III) and Indonesia was one of the first states in Southeast Asia to ratify UNCLOS 1982, doing so in 1986 Since 1996, the available bathymetric, sediment thickness, and basepoint data to delimitate the outer limits of continental shelf have been collected and analyzed through surveys such as the Digital Marine Resource Mapping (DMRM) Project 1996–1999, the Global Bathymetric Data ETOPO2, the Ocean Drilling Program (ODP), the Deep Sea Drilling Project (DSDP), and seismic reflection profiles archived as part of the Intergovernmental Oceanographic Commission’s Geologi-cal/Geophysical Atlas of the Pacific (GPAPA) Project.38

On 16 June 2008, Indonesia made a submission to the CLCS relating to the conti-nental shelf off northwest of Sumatra Island.39 The outer limit of the continental shelf

in the area off northwest of Sumatra—under this partial submission—has been deter-mined using the 1% sediment thickness formula with respect to the shortest distance

to the foot of slope Accordingly, five fixed points have been established, which com-bined with the 200-nautical-mile limit, form the outer limit of the extended continental shelf in the area to the northwest of Sumatra This area is not the subject of any dispute with another state In its submission, Indonesia reserved the right to make submissions with respect to the outer limits of its extended continental shelf in other areas in the future.40

The Philippines

The Philippines signed UNCLOS 1982 in that year and ratified the Convention in 1984 On

8 April 2009, a partial submission of extended continental shelf in the Benham Rise region was made by the Philippines to the CLCS.41The area covered in the submission to the north and east of the West Philippine Basin and to the west and south of the Luzon, where there is no state with an opposite and adjacent coast to the Philippines The outer edge of the continental margin in the Benham Rise region was determined by the application of Article 76, paragraph 4(a)(i) There are 253 points marking the proposed outer limit The hydrographic data was collected by survey cruises during 2004–2008 In its submission, the Philippines explicitly reserves the right to make other submissions for other areas of continental shelf beyond 200-n miles in the future, in conformity with the provisions of Annex I of the Rules of Procedure of the CLCS.42

Malaysia and Vietnam Joint Submission

Malaysia and Vietnam signed UNCLOS 1982 on 10 December 1982 Malaysia ratified the Convention in 1996 and Vietnam ratified in 1994 Malaysia publicized the extent of its territorial sea and continental shelf out to 200 nautical miles through two maps in December 1979.43Vietnam proclaimed its baselines in May 1977.44Both countries have determined that they have areas of continental shelf in the southern part of the South China Sea that extends beyond 200 nautical miles On 6 May 2009, Malaysia and Vietnam made

a joint submission to the CLCS relating to a “defined area” in the south of the South China Sea.45 The area is generated and bound by the intersection point of the envelope

of arcs of the 200-nautical-mile limits of Malaysia and the Philippines in the east (Point A), the intersection of two converging envelopes of the arcs of Malaysia 200-nautical-mile limit toward the southwest of the Point A (Points B and C), by the boundary line under the agreement on the continental shelf concluded by Malaysia and Indonesia in 196946 (Points D and E), the boundary line in the agreement on the limit of the continental shelf signed by Vietnam and Indonesia in 200347 toward the northwest (Points F and G) and the intersection point of the envelope of arcs of Vietnam’s 200-nautical-mile limit toward the northeast (Points H and I) (see Figure 1) The “defined area” is beyond 200 nautical miles from the baselines of land territories of both Malaysia and Vietnam and outside of the agreed limits of continental shelves with other concerned countries Both countries have affirmed that the joint submission would not prejudice matters relating to the delimitation

of boundaries between states with opposite or adjacent coasts.48

Vietnam Partial Submission

On 7 May 2009, Vietnam made a partial submission relating to the North Area which is located in the northwest of the South China Sea.49The delineated outer limit of the extended continental shelf is defined and bound in the north by an equidistance line between the territorial sea baselines of Vietnam and the territorial sea baselines of China and in the west

by the 200-nautical-mile limit from Vietnam Vietnam has delineated the outer limits of its extended continental shelf in the North Area by application of both the 1% sediment thickness formula and the foot of the slope+60-nautical-miles formula The submission

by Vietnam was prepared using datasets acquired by dedicated surveys in 2007 and 2008

as well as datasets from the public domain including bathymetry, magnetic, gravity, and seismic data (see Figure 2) Vietnam is of the view that the area of extended continental shelf in the submission is not subject to a dispute and, furthermore, that its submission is

Figure 1 Map of the Vietnam-Malaysia joint submission.

without prejudice to the maritime delimitation between Vietnam and other relevant coastal states

Preliminary Information

China

China signed UNCLOS 1982 in that year and ratified in 1996 On the same day as rat-ification, China’s baselines were proclaimed.50The archipelagic baselines applied to the Paracel Islands by China have been objected to by Vietnam and several other countries.51

On 11 May 2009, China submitted preliminary survey findings on the outer limits of its continental shelf to the CLCS.52The preliminary survey relates to an extended continental shelf area beyond 200 nautical miles to the western slope of the Okinawa Trough in the East China Sea In its preliminary information, China stated that it reserves the right to make

Figure 2 Map of the Vietnamese individual submission (VNM-N).

outer continental shelf submissions relating to areas in the East China Sea and elsewhere

in the future.53The South China Sea may be one of those areas

Brunei Darussalam

Brunei signed UNCLOS 1982 in 1984 and ratified it in 1996 On 12 May 2009, through its preliminary information submission, Brunei indicated that it had made significant progress

in preparation of a full submission to the CLCS.54 Brunei has researched and analyzed significant amounts of data relating to its continental shelf This includes extensive mor-phological, geological, geophysical, and tectonic data However, Brunei indicated it would provide the full submission to the CLCS at a later date When Brunei makes its full submis-sion to the CLCS, it is expected to show that there is a continuous natural prolongation from the territory of Brunei extending across the areas known as the Northwest Borneo Shelf, the Northwest Borneo Trough, and the Dangerous Grounds to the edge of the deep ocean floor of the South China Sea Basin Thus, Brunei’s full submission to the CLCS will show that the edge of the continental margin, lying at the transition between the Spratly Islands area and the deep ocean floor of the South China Sea, is situated beyond 200 nautical miles from the baselines from which Brunei’s territorial sea is measured.55