Beyond the limits?: outer continental shelf opportunities and challenges in East and Southeast Asia.(Report)

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)