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

Draft not for quotation !
(© Nguyen Hong Thao & Ramses Amer 2010)




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

Nguyen Hong Thao and Ramses Amer
Abstract
The main aim of this study is to examine the submissions of the outer continental shelf made by coastal states of the South China Sea and the potential impact for the developments in the South China Sea. Upon the United Nations Convention on the Law of the Sea of 1982 and guidelines of the Commission on the Limits of the Continental Shelf, the establishment of extended continental self constitutes an obligation of UNCLOS 1982 coastal states. However the implementation of those guidelines to extend the continental shelves in the narrow enclosed or semi-enclosed seas where there are existent maritime disputes such as in the South China Sea is not easy. The UNCLOS 1982 coastal states must reply the double requirement: how to fulfil the obligation of making submission of the outer limit of the continental shelf to the Commission on the Limits of the Continental Shelf in time and to do not any prejudice to the rights of the regional community and other neighbour states. The best solution is the cooperation, mutual understanding between regional coastal states based upon on the right, objective interpretation of the UNCLOS 1982 and guidelines of the Commission on the Limits of the Continental Shelf.




Coastal States in the South China Sea and Submissions of the Outer Limits of the Continental Shelf
Introduction
The main aim of this study is to examine the submissions of the outer continental shelf made by coastal states of the South China Sea and the potential impact for the developments in the South China Sea. Upon the United Nations Convention on the Law of the Sea of 1982 and guidelines of the Commission on the Limits of the Continental Shelf, the establishment of extended continental self constitutes an obligation of UNCLOS 1982 coastal states. However the implementation of those guidelines to extend the continental shelves in the narrow enclosed or semi-enclosed seas where there are existent maritime disputes such as in the South China Sea is not easy. The UNCLOS 1982 coastal states must reply the double requirement: how to fulfil the obligation of making submission of the outer limit of the continental shelf to the Commission on the Limits of the Continental Shelf in time and to do not any prejudice to the rights of the regional community and other neighbour states. The best solution is the cooperation, mutual understanding between regional coastal states based upon on the right, objective interpretation of the UNCLOS 1982 and guidelines of the Commission on the Limits of the Continental Shelf.

Continental Shelf beyond 200 nm and the work of the Commission on the Limits of the Continental Shelf (CLCS)
The United Nations Convention on the Law of the Sea of 1982 (UNCLOS 1982) entered into force over 15 years ago, i.e. in 1994. In accordance with the provisions of the UNCLOS 1982, each coastal state has the right to have a 12-miles territorial sea, 200 nautical miles exclusive economic zone (EEZ), and the continental shelf. The later 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 breath of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance. Upon the UNCLOS 1982, each coastal member has right to have at least a continental shelf of 200 nautical miles. Depending to natural characters of its continental margin, a group of coastal states has a right to claim the continental shelf extended beyond the distance of 200 nautical miles from the baselines from which the breath of the territorial sea is measured. This claim can 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 both cases, the line of the outermost fixed points shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured or either shall not exceed 100 nautical miles from the 2,500 metre isobaths, which is a line connecting the depth of 2,500 metres. 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 the UNCLOS 1982 refers to coastal States without being qualified as ‘State party’. It is noted that the article 76 of the UNCLOS 1982 refers to both concepts of continental shelves. One is the concept of the continental shelf of 200 nautical miles from the baseline that was already part of customary international law prior to the Third United Nations Conference on the Law of the Sea and in its consequence, all coastal States, States Parties or non-States Parties may claim a 200 nautical miles continental shelf. The other is the concept of the continental shelf beyond 200 nautical miles from the baseline which is product of agreement of States Parties to the UNCLOS 1982. The continental shelf beyond 200 nm does not come under customary international law. The Commission on the Limits of the Continental Shelf (CLCS) is an organ of the Meeting of States Parties to the UNCLOS 1982. Those mean that only Coastal States Parties of the UNCLOS 1982 have right to claim the continental shelf beyond 200 nautical miles. They have obligations to submit the report on outer limit of the continental shelf to the Commission on the Limits of the Continental Shelf for examination.
Upon Annex II, Article 4, of UNCLOS 1982, the time of the submission to the Commission on the Limits of the Continental Shelf (CLCS) must be within 10 years of the entry into force of UNCLOS 1982 for coastal States Parties. However, by the requirement of almost coastal States Parties, the final deadline was modified and fixed at 13 May 2009 by a Decision of UNCLOS States Parties dated 29 May 2001 taken during the eleventh meeting of UNCLOS States Parties (RA please clarify is it “coastal State Members” or “UNCLOS Sates Parties”? Please do use official one only). (UNCLOS States Parties consist of Coastal and Non Coastal States Parties such as Landlocked States – NHT). The UNCLOS and decisions of the meetings of UNCLOS States Parties have not just set of principles but they are law for States Parties to have 15 years to plan and prepare a legal claim over the continental shelf to the United Nations. To that date of 13 May 2009, any country who has no action to make either the submission or preliminary information indicative will be considered to have no interest to the extended continental shelf over the 200 nautical miles measured from their baselines. From the above-mentioned analyses the Coastal States Parties can choose one of three options to express its intentions over the extension of the continental shelf beyond 200 nautical miles as follows:
1) Provide the final submission of the outer limit of the continental shelf extended beyond the 200 nautical miles distance measured from the baselines of any given state. A country can make a full or partial submission. It can make one or a number of partial submissions instead of a full submission for the whole area. Two or more coastal States can make a joint submission, under Section 4 of Annex I to the Commission’s Rules of Procedures.
2) Provide to the Secretary-General preliminary information indicative of the outer limits of the continental shelf beyond 200 nautical miles and a description of the status of preparation and intended date of making a submission in accordance with the requirements of article 76 of the Convention and with the Rules of Procedure and the Scientific and Technical Guidelines of the Commission on the Limits of the Continental Shelf.
3) Make objections to submissions of the other coastal states parties that may prejudice to its right.
As stated in Article 76, paragraph 8, of UNCLOS 1982, and the Art. 4 Annex II of the Convention the process of defining the outer limit of the extended continental shelf can be described in several phases. In the first phase, a coastal state conduct the scientific survey and collect data to assess where it intends to establish, in accordance with article 76 of the Convention and rules of the CLCS, the outer limits of its continental shelf beyond 200 nautical miles. The decision to make a submission or not unilaterally is made by the coastal state by taking account of the collected and analyzed geodetic data and the attitudes of neighbouring countries. It is limited also by the obligation of the coastal state to not affect the rights of others, including the interest of world community and concerned states. The interest world community will be safeguarded by the consideration of the CLCS. The interest of concerned states will be taken in account by the mutual understanding before submitting report to the CLCS. However, it is not easy to define those rights due to the different interpretation of concerned parties in regard of the provisions of UNCLOS 1982. In case there is a dispute in the delimitation of continental shelf between opposite or adjacent coastal States or other in case of unresolved land or maritime disputes, the submissions may be made and considered also by the Rule 46 of the Rules of the Commission on the Limits of Continental Shelves (CLCS). In the second phase, the CLCS will evaluate the submission to balance the right of the submitted country and the world community. The received information will be verified by the Commission from the scientific and technical view in the legal framework of UNCLOS 1982. Prior to the second phase, for the submissions to which there are objections from the neighbour countries, the CLCS must evaluate the legal nature and content of those objections. If the objection is accepted by the CLCS, the submission will be not examined by the Commission. The concerned parties must have a task to find an acceptable solution before resubmitting the report to the CLCS. If the objection is not accepted, the second phase will be followed by the CLCS. The submission can be viewed by either the full Commission or by sub-commission composed of seven members, unless the Commission decides otherwise. The coastal State which has made a submission to the Commission may send its representatives to participate in the relevant proceedings without the right of veto. It may establish the outer limits of its juridical continental shelf wherever the continental margin extends beyond 200 nautical miles by establishing the foot of the continental slope, by meeting the requirements of article 76, paragraphs 4 - 7, of the UNCLOS 1982 Convention. Moreover, the collected scientific data provided by them must be merit under Article 76 of UNCLOS 1982 and CLCS’s guidelines. The Commission or its Sub-commission must evaluate whether the formula applied by the coastal state to define the edge of continental shelf, (the Gardiner, or Hedberg formula or the combination of both formulas) is correct. For the cases there is a dispute in the delimitation of continental shelf between opposite or adjacent coastal States, the action of the Commission shall not prejudice matters relating to the delimitation of boundaries between States. In cases where a land or maritime dispute exists, the Commission may consider one or more submissions in the areas under dispute with prior consent given by all States that are parties to such a dispute. The concerned parties can joint to the prior submission raised by one or two parties before or agreed to make a new joint submission to the CLCS. Moreover, all the submissions made before the Commission and the recommendations approved by the Commission thereon shall not prejudice the position of States which are parties to a land or maritime dispute. At the end of the second phase, the sub-commission must submit its recommendation to the Commission CLCS. The recommendations approved by the Commission shall be submitted in writing to the coastal State which made the submission and to the Secretary-General of the United Nations.
If the recommendations of the Commission accepted by the coastal State, the third phase will be followed. In the case of disagreement by the coastal state with the recommendations of the Commissions, the coastal state shall, within a reasonable time, make a revised or new submission to the Commission. In the third phase, the coastal state and CLCS cooperate in order to revise the submission in accordance with the recommendations. “The advisory process” can be prolonged several times until the coastal state’s submission (revised or new) is in line with the CLCS’s recommendations. The fourth phase is the procedure by which the coastal state shall establish the outer limits of the continental shelf in conformity with the provisions of article 76, paragraph 8, and in accordance with the appropriate national procedures. The coastal State and CLCS will report relevant data and map to the Secretary-General of the United Nations and to the Secretary-General of the International Seabed Authority for registration. The revised outer limit of continental shelf beyond 200 nautical miles on the basis of recommendations of CLCS will be recognized as the final delimitation and will be binding for the coastal state and the rest world community.
In theory, such final delimitation is reached only in the area where the distance between the two opposite states is more than 400 nautical miles and the existence of an international seabed in that area is recognized. In the seas, where the overlapping claims exist, the final delimitation in this respect rests with the coastal states. The CLCS has no competence to deal with overlapping claims. The function of the organ is to evaluate the scientific content in the costal state’s claim to the continental shelf beyond 200 nautical miles from its baseline. The recommendation of the CLCS has not constituted a solution for maritime or sovereign disputes. In the other side, even in case there are no objections from concerned countries to the submissions, the final solution is not easy to reach in a short time frame. The first obstacle for the CLCS work is a great number of submissions to be considered for the small staff of the CLCS. From 1994 to 2008, only nine submissions were sent to the CLCS for evaluation. By the November 2009 the CLCS gave 9 recommendations to concerned parties for renewing. The time for one submission to be adopted is an average of over twenty months. Until 30 October 2009, the Commission has received 51 submissions from 44 coastal State Members. With the current rate of two submissions evaluated each year, it will take until 2059 before the CLCS can verify and give recommendations for all 51 registered submissions, The timetable will be 2034 with the rate of four submissions per year and 2022 with the rate of eight per year. Beyond of the submissions, 52 preliminary information indicatives were sent to the Commission by 17 Mar 2010. In fact, the continental shelf is not unique for the whole coast of the country. It can be consisted of different portions which demanding the different treatment. In consequence, the number of final submissions will be increased in the future. One country can make several partial submissions from its preliminary information to the CLCS. While the deadline for the submissions of extended continental shelf has been fixed at 13 May 2009, the another one for the preliminary information indicatives has not been defined. It will cause more difficulty for the CLCS work in the future. The other difficulty for CLCS is the consideration of baseline. The continental shelf beyond 200 nautical miles is generally established from the baseline, normal, straight or archipelagic. Upon art. 3, 5, 6, and 7 of the UNCLOS 1982 Convention, every coastal state has the right to establish its baseline, normal or straight in accordance with this Convention. For the archipelagic State, the archipelagic baseline fixed in accordance with art. 47 of the Convention. However, the UNCLOS 1982 has not given the detailed criteria for making baseline. The existence of some State claims on the historic water or historic bay in the world have made more complexity for the baseline consideration when the Convention has not any provisions to so-called “historic bays” The question of baseline will increase the burden of work for the CLCS.
In summary, while the submission of extended continental shelf is right and obligation for the coastal states, the interpretation of Art. 76 of the UNCLOS will be shared among the coastal states and CLCS. But the power of interpretation is not necessarily shared equally between them. The coastal state has power to interoperate Art. 76 on the basic of direct consequence from its sovereign discretion to establish its own outer limits of continental shelf. The Commission possesses power of interpretation Art. 76 on the basic of value of scientific data in fulfilling its mandate under the Convention. By that reason, the address to the CLCS for a solution to the land or maritime dispute has not always brought to the positive result. The Commission is not an arbiter or decision-maker for the land or maritime disputes. Having some direct and indirect relationships, the maritime dispute settlement and the definition of extended continental shelf have remained two different things to be considered from different views.
Submission of files on the outer limit of the continental shelf to the CLCS
Ten coastal states and territories surround the South China Sea . Being coastal states but not state member of the UNCLOS 1982, Thailand and Kampuchea have no right to make claim for the continental shelf beyond 200 nautical miles from theirs baselines. Beside of it, the geographic and geomorphologic characters of the Gulf of Thailand have not given them a chance to make the same claim. The breadth of the gulf is less than 400 nautical miles. Taiwan is a political territory not being coastal state member. Upon to the deadline of 13 May 2009, the Singapore didn’t given any intention to make a submission or preliminary information. Pursuant to article 76, paragraph 8 of UNCLOS 1982, Brunei, China, Indonesia, Malaysia, the Philippines, and Vietnam, the coastal states of the South China Sea, members of the UNCLOS 1982 have opted to pursue different approaches in relation to the issues of the outer limit of the continental shelf.
Indonesia, Malaysia, the Philippines, and Vietnam, respectively, have partially chosen the first option: to make submission of its extended continental shelf to the CLCS.

a. Indonesia case:

Indonesia declared by itself as an archipelagic state in 1957 by the Presidential Declaration of 13 December 1957. By the doctrine of archipelagic sate, Indonesia drew its archipelagic baselines joining the outermost islands and drying reefs of the archipelagos by Law N04 of 1960. The doctrine of archipelagic states was accepted by the Third Conference of the United Nations on the Law of the Sea 1973-1982. Indonesia became one of the first state in the Southeast Asia to ratify the UNCLOS 1982 by Law N017 on 31 December 1985 and deposer the ratification on February 3rd, 1986. Since 1996, the available bathymetric-, sediment thickness-, and basepoint data to delimitate the outer limits of continental shelf of Indonesia have been collected and analysed through several real surveys such as the Digital Marine Resource Mapping (DMRM)-project 1996-1999; Global Bathymetric Data ETOPO2; Ocean Drilling Program (ODP) and the Deep Sea Drilling Project (DSDP); and seismic reflection profiles archived as part of the IOC’s Geological/Geophysical Atlas of the Pacific (GPAPA) Project. The Governmental Regulation (PP-38/2002). From the Indonesian baselines with 183 base points and available scientific data, Indonesian scientists have done a conclusion that the country has high possibility to have extended continental shelves, particularly in the North West of Sumatra, in the Papua and to the South of Samba island. On 16 June 2008 Indonesia made a submission to the CLCS in accordance with Article 76, paragraph 8, of UNCLOS 1982, 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 relating to the continental shelf off North West of Sumatra Island. Indonesia started its preparation to submit the extended Continental Shelf through the collection of existing bathymetric data resulting from the Digital Marine Resources Management Project (DMRM), ETOPO-2 and also global seismic or sediment thickness data since 1999. The outer limit of the continental shelf in the area off North West of Sumatra – under this partial submission – has been determined by the 1 per cent sediment thickness formula (the Gardiner or Irish formula). with respect to the shortest distance to the foot of slope. Accordingly 5 fixed points have been established, which combined with 200 M limit, forming the outer limit of extended continental shelf in the area of North West of Sumatra. This area is not the subject to any dispute between Indonesia and any other state. Indonesia reserves the right to make submissions of the outer limits of its extended continental shelf in other areas in the future. The Indonesian submission of continental shelf beyond 200 nm from its baseline to the CLCS has not been subject of objection from other SCS nations because this area North West of Sumatra is off of any maritime disputes.

b. The Philippines case:
The Republic of Philippines signed the UNCLOS Convention on 10 December 1982 and the Convention entered into force for the Philippines on 16 November 1994. Like Indonesia, in the quality of the archipelagic State, the Philippines have some advantages to claim the outer limits of the continental shelf from the outermost points of the outermost islands and drying reefs of the archipelago. But the Philippine’s extended continental shelf will overlap with those maritime claims of seven of its neighbors: Japan, China, Vietnam, Taiwan, Palau, Malaysia and Indonesia. The inclusion of claimed islands to the Baseline Law raised a big internal confrontation between Philippine’s law-makers. On March 10, 2009, the Archipelagic Baseline law (Filipino Republic Act 9522) was finally approved when the Kalayaan Islands Group (Spratlys Islands) and Scarborough Shoal are classified as “regimes of islands.” China immediately protested against the Republic Act No. 9522 when saying that it "has indisputable sovereignty" over the Spratlys and Scarborough Shoal and that the Philippine claim to them "is illegal and invalid". Vietnam repeadly remains its established position on the Paracel and Spratly archipelagos Those islands are subject of sovereign disputes between the Philippines and other countries in the West side of the Philippines. By the provision to treat them by the “regimes of islands”, the Philippines view on their legal status has been still unclear on whether they have the own continental shelf or only territorial sea. Indonesia is also protesting the inclusion of Palmas island that located 47 nautical miles east-northeast of Saranggani islands off Mindanao in Philippine territory. Because of those territorial disputes, the Philippines have only the option to make a partial submission for the area off from the sovereign disputes. The Benham Rise region along the Pacific coast is merit for the Philippine’s position to make the partial submission in order to avoid creating or provoking maritime disputes where there are none, or exacerbating them where they may exist, in areas where maritime boundaries have not yet been delimited between opposite or adjacent coastal States. This area is bounded to the North and East by the West Philippine Basin and to the West and South by the Philippine island Luzon. Areas along the Pacific coast have any State with opposite and adjacent coast to the Philippines. By that reason, the partial Submission made with the reference to the Benham Rise Region along the Pacific coast will be without any prejudice to the maritime delimitation between States with opposite and adjacent coast. On 8 April 2009, the partial submission in the Benham Rise region was made to the CLCS relating to the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. The outer edge of the continental margin in the Benham Rise Region is determined by application of Article 76, Paragraph 4 (a) (i) of UNCLOS 1982. The Hedberg formulas has been considered to fix the outer limit of continental shelf, where the connecting fixed points are not more than 60 miles from the foot of the continental slope. They are of 253 points making from ECS-B-1 to ECS-B-253 whose coordinates have been shown in the partial submission of the Philippines to the CLCS. The hydrographic data were collected by survey cruises during 2004-2008. By making the claim over Benham Rise, which is undisputed territory, the Philippines hoped to reach the double objective: to meet the UN deadline of 13 May 2009 and to have time to sort out border issues with its neighbors over the Kalayaan Islands Group (Spratlys Islands) and Scarborough. The Philippines expressly reserves the right to make other submissions for other areas of continental shelf beyond 200 nautical miles at the future time in conformity with the provisions of Annex I of the Rules and Procedure of the CLCS. It means that the border talks will be dealed with the Philippine neighbors. If an agreement is reached in border talks, then the Philippines can either submit unilaterally or jointly with the country concerned.

c. Vietnam and Malaysia joint submission:

Malaysia and Vietnam signed the UNCLOS at the final day of the Third Conference of United Nations on the Law of the Sea on 10 December 1982. Malaysia ratified the Convention on 14 October 1996 and Vietnam ratified the same on 23rd June 1994. Malaysia publicized the extent of its territorial sea and continental shelf of 200 nautical miles claims through two maps in December 1979. Vietnam proclaimed its baseline in May 1977. Both countries found to have the same area of continental shelf in the Southern part of the South China Sea to extend beyond 200 nautical miles. Malaysia and Vietnam have a joint exploitation for their overlapping area in the Gulf of Thailand. The success of this model and good neighbour friendship have some impact on the decision to make the joint submission on the Defined area of continental shelf beyond 200 nautical miles between the two countries. On 6 May 2009, Malaysia and Vietnam made a joint submission relating to this defined area in the South of the South China Sea. The area is generated and bound by the intersection point of the envelope of arcs of 200 nautical miles limits of Malaysia and the Philippines in the east (Point A), the intersection of two converging envelopes of the arcs of Malaysia 200 nautical miles limit toward the southwest of the Point A (Point B and C), by the boundary line under the Agreement on the continental shelf concluded by Malaysia and Indonesia in 1969 (Points D and E), the boundary line under the Agreement on the limit of the continental shelf signed by Vietnam and Indonesia in 2003 toward the north west (Points F and G) and the intersection point of the envelope of arcs of Vietnam’s 200 nautical miles limits towards the northeast (Point H and I). The Defined area is located completely outside of the 200 M from the baselines of land territories of both Malaysia and Vietnam, and outside of 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.

d. Vietnam partial submission
On 7 May 2009, Vietnam made a submission relating the North Area (VNM-N) which is located in the North West of the South China Sea. Vietnam is of the view that it is entitled to exercise the sovereignty, sovereign rights and national jurisdiction in maritime zones and continental shelf of Vietnam in accordance with UNCLOS 1982. Pursuant to the provisions of UNCLOS 1982 (Paragraphs 1, 4, 5 and 7 Article 76) and the natural setting and characteristics of Vietnam’s coast and continental shelf, Vietnam holds the view that it is entitled to establish the extended continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea of Vietnam is measured. In accordance with Paragraph 3 of Annex I to the Commission’s Rules of Procedures, this Submission delineates the outer limits of the extended continental shelf: North Area (VNM-N) appurtenant to Vietnam. The VNM-N Area is defined and bound in the North by the equidistance line between the territorial sea baselines of Vietnam and the territorial sea baselines of China; in the Eastern and Southern by the outer limits of the continental shelf as defined in this Submission pursuant to Article 76 (8) of the UNCLOS 1982; in the West by the 200 nautical lines limit from the baselines from which the breadth of the territorial sea of Vietnam is measured. In accordance with Article 76(10) of the UNCLOS 1982, Article 9 Annex II to the UNCLOS 1982, Rule 46 and Annex I of the Commission’s Rules of Procedure, Vietnam is of the view that the area of continental shelf that is the subject of its Submission is not a subject of any overlap and dispute and it is without prejudice to the maritime delimitation between Vietnam and other relevant coastal States. Vietnam has delineated the outer limits of the Vietnam’s extended continental shelf North Area (VNM-N) by application of both the 1 per cent sediment thickness formula (the Gardiner formula) and the Foot of the slope (FOS) + 60 nautical miles formula (the Hedberg formula). This Submission by Vietnam on the extended continental shelf has been 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.
To sum-up Vietnam and Malaysia have made submissions relating to areas in the South China Sea. Indonesia and the Philippines have made submissions relating to areas outside the South China Sea. However, the two countries retain the right to make submissions relating to other areas of continental shelf beyond 200 nautical miles from their baselines, this may include areas in the South China Sea.
Preliminary information indicative of the outer limits of the continental shelf beyond 200 nautical miles
Brunei and China, respectively, have chosen the second option relating to the outer limits of the continental shelf.
a. Chinese case:
China ratified the UNCLOS on 15 May 1996. At the same day, the Chinese baseline was proclaimed. In the South China Sea, the archipelagic baseline was applied to the Paracel islands by China. The Chinese baseline has been objected by Vietnam and several countries. On 11 May 2009, China submitted the preliminary survey findings on the outer limits of its continental shelf to the CLCS. The preliminary survey relates to an extended continental shelf beyond 200 nautical miles up to the western slope of the Okinawa Through. Thus, it is in the East China Sea and not South China Sea. In the East China Sea, there are overlapping jurisdictional claims made by China and Japan. China claims a continental shelf extending to the western slope of the Okinawa Trough based on the principle of natural prolongation while Japan claims an EEZ and continental shelf extending to the median line in the East China Sea. On 6 February 2009, the Permanent Mission of the People’s Republic of China sent a Note verbal to the General Secretary of the United Nations to make protect the Japanese inclusion of the small island to its Submission dated 12 November 2008. It’s Oki-no-Tori Shima Island, the basepoint for the three areas of Japanese claimed extended continental shelves beyond 200 nautical miles, namely SKB, MIB and KPR. According to China, the so-called Oki-no-Tori Shima is in fact a rock as referred in Article 121 (3) of the UNCLOS. China claims that the Japanese rock is entitled to only a 12 nautical miles territorial sea while Japan claims that the feature can sustain more maritime area than just the territorial sea. In its preliminary information indicative, China states that it reserves the right to make outer continental shelf submissions relating to areas in the East China Sea and elsewhere in the future. It means that the South China Sea may be one of that areas. In fact, the Chinese claim based on the nine-dotted line annexed with the Notes CML/17/2009 and CML18/2009, May 7, 2009 sent by the Permanent Mission of the People’s Republic of China to the United Nation show that country has no intention to make any submission on the extended continental shelf beyond 200 nautical miles in the South China Sea.

b. Brunei case:

Brunei signed the UNCLOS on 5 December 1984 and ratified the same on 5 November 1996. On May 12, 2009, by its preliminary information indicative, Brunei informed that the country has made significant progress towards preparation of a full submission to the CLCS in accordance with Article 76, paragraph 8, of UNCLOS. Brunei has researched and analysed significant amounts of data relating to its continental shelf. This includes extensive morphological, geological, geophysical and tectonic data. However, Brunei can only provide the full submission to the CLCS at a later date 13 May 2009. When Brunei submits its full submission to the CLCS in accordance with Article 76 of UNCLOS, it will 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. It implies that Brunei’s full submission to the Commission will show that the edge of the continental margin, lying at the transition between the Dangerous Grounds (Spratly Islands) 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.
By their preliminary information, both China and Brunei have indicated their intention to fix the outer limit of continental shelf beyond the 200 nautical miles from their territory on the basis of the principle of natural prolongation. However, in the South China Sea the only Brunei’s full or partial submission on the extended continental shelf beyond 200 nautical miles can be expected in the future.

Objections made by China and the Philippines
a. Chinese objection
On 7 May 2009 the Permanent Mission of the People’s Republic of China send two notes, CML/17/2009 and CML/18/2009 to the Secretary General of the United Nations to request the CLCS not to consider the joint submission made by Malaysia and Vietnam and the submission made by Vietnam. China considers those submissions to infringe upon its sovereignty, sovereign rights and jurisdiction in the South China Sea. The map of the South China Sea including the nine-dotted lines was attached to the two Notes. This is the first time China has presented the dotted line to a United Nations body in the context of China’s claims in the South China Sea. No map of this nature was attached to the official laws and regulations before such as Declaration on China’s Territorial Sea in 1958, Declaration of the People’s Republic of China on the Territorial Sea and Contiguous Zone in 1992, Declaration of the People’s Republic of China on Baselines of the Territorial Sea in 1996, and the Law of the People’s Republic of China on the Exclusive Economic Zone and Continental Shelf in 1998. According to the text and the map annexed, all waters and features within the nine dotted line are claimed under Chinese jurisdiction. There are some comments about the Chinese maritime claim that is not consistent with international law That the line dotted having no coordinates claims about 80% superficies of the South China Sea. It is not based on any of UNCLOS’s juridical or scientific criteria. It’s contradiction to the Chinese officials laws and regulations on the territorial sea, Exclusive Economic Zone and Continental Shelf because those maritime zones exist inside of the nine dotted line. For the islands in dispute, China seems to pursue two different policies. One policy in the East China Sea where the territorial dispute over Senkaku Islands between Japan and China seems not to prevent China to have a full submission of the extended continental shelf to the CLCS. Another policy in the South China Sea, where the disputes over islands have prompted China to object any submission to the CLCS. The nine dotted line excludes every possibility to claim the continental shelf beyond 200 nautical miles, even measured from the land territory like Vietnam-Malaysia joint submission and Vietnam’s individual submission to the CLCS. The scientific aspect of the definition of the outer limit of the continental shelf has been linked by China with the territorial disputes on the Paracels and Spratlys. In the East China Sea, the Chinese submission states that China will “through peaceful negotiation, delimit the continental shelf with States with opposite or adjacent coasts by agreement on the basis of the international law and the equitable principle”. However, in the South China Sea, China has kept silence on the possibility to have talk with neighbour countries on that matter. Vietnam immediately had response to the Chinese Note, stating that the map “has no legal, historical basis, [and is] therefore null and void.” It also asserted that the Spratlys archipelago or Truong Sa is part of its territory and that it “has indisputable sovereignty over these archipelagos.”
b. Philippine objection:
The Philippines made three objections to Malaysia, Vietnam and Pulau with reference on the submission of continental shelf beyond 200 nautical miles. The Philippines protests to Vietnam and Malaysia were made on August 4, 2009 shortly before the 90-day deadline from 13 May 2009.
The southern part of Philippine claim in the Spratlys overlaps with the defined area under the joint submission made by Malaysia and Vietnam. However in this area, there is not any feature occupied by the Philippines. The reason of its objection seems to deeply be in the dispute with Malaysia over Sabah, which is on the northern part of Borneo. So the Philippine stated only that the “Joint Submission for the Extended Continental Shelf by Malaysia and Vietnam lays claim on areas that are disputed not only because they overlap with that of the Philippines, but also because of the controversy arising from the territorial claims on some of the islands in the area including North Borneo.” For the Vietnamese separate submission in the North part of the South China Sea, the Philippines said the areas covered by Vietnam’s unilateral partial submission are “disputed because they overlap with those of the Philippines.” It seems to refer to the possible continental shelf claimed from the Scarborough islands. In both notes of protest, the Philippines requested the CLCS to refrain from considering the aforementioned Joint Submission by Malaysia and the Socialist Republic of Vietnam, and Vietnamese Submission “unless and until after the parties have discussed and resolved their disputes.”.
Malaysia and Vietnam promptly gave feedback to the Philippines protest. In the Note HA 24/09 on 20 May 2009, the Permanent Mission of Malaysia to the United Nations has reconfirmed its sovereignty on the Sabah state. Vietnam reaffirmed its consistent position that it has indisputable sovereignty over the Truong Sa (Spratlys) and Hoang Sa (Paracels) archipelagoes. Vietnam and Malaysia share the position that the Joint Submission is made without prejudice to the question of delimitation of the continental shelf between States with opposite or adjacent coasts in accordance with Article 76 (10) of UNCLOS 1982, Article 9 of Annex II of UNCLOS 1982, Rule 46 to the Commission’s Rules of Procedure and Paragraphs 1, 2 and 5 of Annex I to the Commission’s Rules of Procedure. In its note, Malaysia revealed the fact that both governments of Malaysia and Socialist Republic of Vietnam had proposed to the Government of the Republic of Philippines to consider joining the Joint Submission. In their joint submission, Vietnam and Malaysia also said they “may make further submissions, either jointly and unilaterally, in respect to other areas.”
The Philippines also contested the submission by Palau establishing the outer limits of its continental shelf that lies beyond 200 nautical miles. It said the baselines from which the breadth of the territorial sea of Palau is measured overlaps with the maritime jurisdiction of the Philippines.
While Palau recognized a “potential overlap” between its continental shelf with that of the Philippines, it stated that its submission is without prejudice to the question of delimitation of that area.


Indeed, through their objections, China and the Philippines want to link the question of scientific definition of the extended continental shelf with the territorial disputes over the islands in the South China Sea. In the Philippines case, the regime of Spratlys and Scarborough islands are not clear whether they have the own continental shelves under the UNCLOS 1982. In the Chinese case, the if the nine dotted line claim is dominant, in the South China Sea, the surrounded countries have even no own continental shelves until 200 nautical miles from their baselines and coasts. In consequence, China has no need to declare the outer limit of the continental shelf beyond 200 nautical miles from its “national boundary – nine dotted line”. In opposition, in both, the Join submission of Vietnam and Malaysia and the individual Vietnam’s submission, Vietnam and Malaysia have submitted their outer limit of the continental shelf from their main land without any mention about the islands in dispute. Their declarations are clear. They are two things different. The join and Vietnam individual submissions constitute legitimate undertakings in implementation of the obligations of States Parties to the UNCLOS 1982, which conform to the pertinent provisions of UNCLOS 1982 as well as the Rules of Procedure of the CLCS. The disputed islands remain subject of negotiations to find the long-lasting acceptable solution in conformity with the UNCLOS 1982.
Perspective after May 2009
The South China Sea is well-known due to the sovereignty disputes over the two strategically important archipelagos – the Paracels and the Spratlys. Claimant countries are all members of the UNCLOS 1982 and have obligation to implement article 76 of the UNCLOS 1982. The coastal States have right to make interpretation and application of it to find the outer limit of their continental shelf. However the legal value of outer limit of the continental shelf must be evaluated by the CLCS based on scientific data provided by claimed countries. Before the deadline of 13 May 2009, all concerned countries in the South China Sea have shown their attitudes to the issue of fixing the outer limit of extended continental shelf beyond 200 nautical miles in different levels. Vietnam and Malaysia pursue the policy to separate the submission of outer limit of extended continental shelf beyond 200 nautical miles from the sovereignty disputes over islands. They claim the extended continental shelf for their land territories only. It’s content of the join submission of Vietnam and Malaysia and the individual Vietnamese submission to the CLCS. Brunei seems to share the same view in making the preliminary information. Brunei Darussalam will make the submission to CLCS in convenient time. This submission of extended continental shelf beyond 200 nautical miles will be on the continuous natural prolongation from the territory of Brunei extending across the Dangerous Grounds (Spratlys Islands) to the edge of the deep ocean floor of the South China Sea Basin. The Philippine’s objection has a root from their hesitation on the regime of islands whether if they have own continental shelf or only territorial sea. The Chinese objection is based on the nine dotted line claim enclosing all waters and islands inside. The concerned countries have different views because of uncertainties in UNCLOS 1982 over the status of islands. Article 121 (3) states that “rocks which cannot sustain human habitation or economic life of their own shall not have an exclusive economic zone or continental shelf”. This uncertain provision has caused an active dilemma among researchers. Some consider that the features in the Spratlys archipelago cannot generate an EEZ or a continental shelf. Others suggest that some of the features in the Archipelago – which are above water at high tide – can generate more than just territorial waters.
Fixing the outer limit of the continental shelf beyond 200 nautical miles is a scientific matter. The task of the CLCS’s would be facilitated if Vietnam and Malaysia can persuade the concerned countries to have no objection to their submissions. However, even if there had been no objections – with the number of submissions to the CLCS – it would possible not be until 2035 before Vietnam’s individual submission and the joint submission by Malaysia and Vietnam would be considered by the CLCS, in the other words in 26 years time. The definition of outer limit of the continental shelf is not a solution for the islands disputes in the South China Sea. Firstly, by the nature, this task cannot prejudice to any land or maritime disputes. Secondly, the evaluation of reports demands a lot of time and patience of concerned parties.
However, as seen from another perspective, the submission to the CLCS and the objections can bring the claimant countries in the South China Sea to cooperate. First, they encourage the concerned states to follow the UNCLOS 1982 in fixing the outer limit of the continental shelf. Countries that have not yet finalised their submissions will push up their efforts to complete their work and make submissions to the CLCS. There can be new partial or final submissions or joint submissions as well as new objections. Through those activities, the concerned parties will generate more understanding about each other positions and policies, this can help clarify their positions and policies in regard to questions that are raised. The outer limit of continental shelf can be a subject to discussion in the existing forums like the Workshop on the Managing the disputes in the South China Sea, and also contribute to create new forums. Second, they encourage the parties to have serious discussions about the island status in the Article 121 (3) of UNCLOS 1982. Objectively, the islands in the South China Sea cannot compare with the land territory in generation of maritime zones under the international law of the sea. Those islands cannot be treated as Archipelagic States in drawing the archipelagic baseline. Whether if they will be given a specific status? That question requires concerned parties to have more effort and cooperation in finding a mutual agreement.
Third, the deadline of 13 May 2009 encourage the parties to clarify their claim limits. The tendency to fix the claim limit in accordance with UNCLOS’s scientific and neutral criteria is more clear. There are some efforts to prevent the influence of islands in disputes on the other field of activities under the UNCLOS 1982. Any claim of maritime zones based on the non-UNCLOS’s scientific and neutral criteria seem to be unacceptable. (It implies on the nine dotted claim based on the “historical ground” but it’s difficult to me to find the way to express. Can you help – NHT)
In conclusion, UNCLOS 1982 should serve as a common ground for all maritime activities. The disputes in the South China Sea are not an obstacle for conducting other obligations of coastal states in implementing UNCLOS 1982. The key to settle the disputes in the South China Sea is the building of trust and goodwill among concerned parties. Working together assures enhanced collaborations in managing and eventually settling the disputes. The claimant states should talk, listen to each other and work together on the basis of respect of equal and mutual interest and in accordance with international law in order to contribute to peace and security in the region.

Annex: Maps of the submissions (joint and individual) of Vietnam and Malaysia
Notes:
1. Permanent Mission of the People’s Republic of China to the United Nation, New York, Note CML18/2009, May 7, 2009 With reference to the Submission by the Socialist Republic of Vietnam dated of 7 May 2009 to the Commission on Limits of the Continental Shelf concerning the outer limit of continental shelf beyond 200 nautical miles .http://www.un.org/Depts/los/clcs_new/chn_2009re_vnm.htm date of access 13 May 2009
2. Permanent Mission of the Socialist Republic of Vietnam to the United Nations, Note N. 86/HC-2009, New York 8 May 2009 with reference to the Note verbal CML/12/2009 of 13 April 2009, CML/17/2009 of 7 May 2009 and CML/18/2009 of 7 May 2009 addressed to the General Secretary of United Nations by the Permanent Mission of the People’s Republic of China to the United Nations http://www.un.org/Depts/los/clcs_new/...files/.../vnm_re_chn_2009re_vnm.pdf date of access 13 May 2009
3. Permanent Mission of the Republic of Philippines to the United Nations, Note N. 000818, New York on August 4, 2009. With reference to the Submission by the Socialist Republic of Vietnam dated of 6 May 2009 to the Commission on Limits of the Continental Shelf concerning the outer limit of continental shelf beyond 200 nautical miles http://www.un.org/Depts/los/clcs_new/clcs_37_2009_los_phl.htm date of access 13 May 2009

4. Permanent Mission of Malaysia to the United Nations, Note N. 41/09, New York on August 21, 2009. With reference to the Note Verbal N. 000819 dated August 4, 2009 from the Permanent Mission of the Republic of Philippines to the United Nations http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/mys_re_phl_2009re_mys_vnm_e.pd date of access 13 May 2009
5. Permanent Mission of the Socialist Republic of Vietnam to the United Nations, Note N. 240/HC-2009, New York 18 August 2009 with reference to the Note verbal N. 000818 and N. 000819 dated on 4 August 2009 and addressed to the General Secretary of United Nations by the Permanent Mission of the Republic of Philippines to the United Nations http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/vnm_re_phl_2009re_mys_vnm_e.pdf, date of access 13 May 2009.
6.