Nguyen Hong Thao
Hanoi National University
Under the United Nations Convention on the Law of the Sea of 1982 (UNCLOS 1982), each coastal state has the right to 12 nautical miles of territorial sea, a 200-mile exclusive economic zone and the continental shelf.
Article 76, Paragraph 8, of UNCLOS 1982 states: “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 final deadline for the submission was May 13, 2009, by a decision of May 29, 2001, taken at the 11th meeting of UNCLOS States Parties. On that date, the coastal state was able to choose one of the following options: 1) Make a final submission stating that the outer limits of the continental shelf extended beyond 200 nautical miles; 2) Provide 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 Shelf1; or 3) Make a reservation of rights to the continental shelf by making objection to submitted files. Any country that has no action will be considered to have no interest in the extension of the continental shelf over the 200 nautical miles measured from its baseline.
The South China Sea is surrounded by ten coastal states and territories, including China, the Philippines, Malaysia, Brunei, Indonesia and Vietnam. Pursuant to Article 76, Paragraph 8 of UNCLOS 1982, these countries have three options listed above.
Vietnam, Malaysia, Indonesia and the Philippines have partially chosen the first option.
On June 16, 2008, Indonesia submitted to the CLCS, in accordance with Article 76, Paragraph 8, of the UNCLOS, information on the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of its territorial sea is measured relating to the continental shelf northwest 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 for the area northwest of Sumatra under this partial submission was determined by the 1% sediment thickness formula (the Gardiner or Irish formula). According to Indonesia, this area was not subject to any dispute between Indonesia with any other state. Indonesia also reserved the submissions of the outer limits of the extended continental shelf of Indonesia in other areas in future.
On April 8, 2009, the Philippines was the second country in the region to make a partial submission to the CLCS. The limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea was measured were in the Benham Rise region. This area is bounded to the north and east by the West Philippine Basin and to the west and south by the Philippine island of Luzon. The Philippines considers that the partial Submission was made with reference to the Benham Rise Region along the Pacific coast and without any prejudice to the maritime delimitation between States with opposite or adjacent coasts. The outer edge of the continental margin in the Benham Rise Region was determined solely by application of Article 76, Paragraph 4 (a) (i). The hydrographic data was collected by survey cruises during 2004-08. However, the Philippines also reserved its right to make other submissions for other areas of continental shelf beyond 200 miles in the future in conformity with the provisions of Annex I to the Rules and Procedure of the CLCS. The western area in the South China Sea may be considered one such area.
On May 7, 2009, Malaysia and Vietnam made a joint submission relating to an area in the south of the South China Sea. The Malaysia-Vietnam defined area was generated and bound by the intersection point of the arcs of 200-mile limits of Malaysia and the Philippines in the east (Point A), the intersection of two converging arcs of Malaysia’s 200-mile limit toward the southwest of Point A (Points 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 limits of the continental shelf signed by Vietnam and Indonesia in 2003 toward the northwest (Points F and G) and the intersection point of the envelope of the arcs of Vietnam’s 200-mile limit towards the northeast (Points H and I). The defined area was located completely outside the 200-mile limit from the baselines of land territories of both Malaysia and Vietnam, and outside of the agreed limits of continental shelves with other concerned countries. The reason is that both countries have affirmed that the Joint Submission would not prejudice matters relating to the delimitation of the boundaries between States with opposite or adjacent coasts.
The North Area (VNM-N) according to the submission made by Vietnam on May 8, 2009, is located in the North East of the South China Sea. Vietnam is of the view that it is entitled to exercise the sovereignty, sovereign rights and national jurisdiction in the maritime zones and continental shelf of Vietnam in accordance with UNCLOS 1982, ratified by Vietnam on June 23, 1994. Pursuant to UNCLOS 1982 (Paragraphs 1, 4, 5 and 7, Article 76) and the natural setting and characteristics of Vietnam’s coast and continental shelf, Vietnam held the view that it was entitled to establish the extended continental shelf beyond 200 M from the baselines from which the breadth of the territorial sea of the Socialist Republic of Vietnam is measured.
In accordance with Paragraph 3 of Annex I to the Commission’s Rules of Procedures, the submission delineated the outer limits of the extended continental shelf: North Area (VNM-N) appurtenant to Vietnam. The VNM-N Area was defined and bound in the north by the equidistant line between the territorial sea baselines of Vietnam and the territorial sea baselines of the People’s Republic of China; in the east and south by the outer limits of the continental shelf as defined in this Submission pursuant to Article 76 (8) of UNCLOS 1982; in the west by the 200-mile limit from the baselines from which the breadth of the territorial sea of the Socialist Republic of Vietnam is measured. Consistent with Article 76(10) of UNCLOS 1982, Article 9 of Annex II to UNCLOS 1982, Rule 46 and Annex I to the Commission’s Rules of Procedure, Vietnam was of the view that the area of continental shelf that was the subject of the submission was not subject to any overlap or dispute and it was without prejudice to the maritime delimitation between Vietnam and other relevant coastal States. Vietnam delineated the outer limits of its extended continental shelf in the North Area (VN-N) by application of both the 1% sediment thickness formula (the Gardiner formula) and the Foot of the Slope (FOS) + 60 M formula (the Hedberg formula). Its submission was prepared using data sets acquired by dedicated surveys in 2007 and 2008 and data sets in the public domain, including bathymetry, magnetic, gravity and seismic data.
In sum, only Vietnam and Malaysia made submissions for the areas within the South China Sea. Indonesia and the Philippines made submissions for areas outside, and not direct related, to the South China Sea. However, the two countries retained the right to make partial submissions for other areas of continental shelf.
Brunei and China chose the second option for their submissions.
On May 11, 2009, the People’s Republic of China (PRC) submitted the preliminary survey findings on the outer limits of its continental shelf to the CLCS. Its submission made a claim to an extended continental shelf as far as the western slope of the Okinawa Trough in the East China Sea, not the South China Sea. In its submission, China stated to reserve its right to make additional extended continental shelf claims in the East China Sea and elsewhere. In the East China Sea, there are overlapping jurisdictional claims under the UNCLOS made by China and Japan. China has always claimed a continental shelf as far as the Okinawa Trough based on the principle of natural prolongation while Japan claims an exclusive economic zone and continental shelf as far as its median line in the East China Sea. China claims that the Japanese islands could only have their 12-mile territorial sea, while Japan has held to the position that it was entitled to more maritime area than the territorial sea.
On May 12, 2009, Brunei informed the CLCS that it had made significant progress towards preparation of a full submission to the Commission in accordance with Article 76, Paragraph 8, of UNCLOS 1982. Brunei had researched and analyzed significant amounts of data relating to its continental shelf, including extensive morphological, geological, geophysical and tectonic data. However, Brunei could only provide its full submission, it said, after May 13, 2009, when it would show that there was 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 meant that Brunei’s full submission to the Commission would show that the edge of the continental margin, lying at the transition between the Dangerous Grounds (Spratlys Islands) and the deep ocean floor of the South China Sea, was situated beyond 200 miles from the baselines from which Brunei’s territorial sea was measured.
By their preliminary information, both China and Brunei seemed likely to claim a right to fix the outer limits of their continental shelf beyond 200 miles from their territory on the principle of natural prolongation. In fact, Chinese actions had come from different attitudes for the two seas. In the East China Sea, the territorial dispute over the Senkaku Islands between Japan and China seemed not to prevent Beijing from making a full submission claiming the extended continental shelf to the CLCS. In the South China Sea, China and the Philippines have opted to reject the Vietnam-Malaysia joint submission and Vietnamese submission to the CLCS.
Objections by China, the Philippines
On May 7, 2009, the Permanent Mission of the People’s Republic of China sent a note to the Secretary General of the United Nations to request the CLCS not to consider the submission made by the Socialist Republic of Vietnam and the joint submission made with the Republic of Malaysia. China considered those submissions to infringe on its sovereignty, sovereign rights and jurisdiction over the waters and islands bounded by the nine-dotted line (the map of line attached with the Note).
This was the first time China had presented the dotted line to a UN body in the context of its claim to the maritime delimitation in the South China Sea. There were some comments about the Chinese protection which was not based on any of UNCLOS’s criteria for the outer limits of the continental shelf. If in the East China Sea, UNCLOS’s criteria of the 12-mile ferritorial sea for inhabited islands have been used by China with regards to Japan, in the South China Sea, these criteria were replaced by an ambiguous dotted line. The scientific aspect of the definition of the outer limit of the continental shelf was linked by China to the territorial disputes over the Paracels and Spratlys. In the East China Sea, the Chinese submission stated that China would “through peaceful negotiation, delimit the continental shelf with States with opposite or adjacent coasts by agreement on the basis of international law and the equity principle.” However, in the South China Sea, Beijing has kept silent on the possibility of peaceful negotiations on that matter.
In spite of the Chinese position, the protest made by the Philippines on August 4, 2009 reserved the possibility of discussions. The Note said that the submission of the extended continental shelf made by Vietnam, and the joint submission made by Malaysia and Vietnam, laid claims to areas that were disputed because they overlapped with those of the Philippines. The Philippines requests the Commission to refrain from considering the submissions unless and until the parties had discussed and resolved their disputes.
In both objections, China and the Philippines sought to link the question of scientific definition of the extended continental shelf with territorial disputes over the islands in the South China Sea. In opposition, Vietnam and Malaysia submitted their outer limit of the continental shelf without any mention about the islands in dispute. Their declarations were clear, and the two issues were distinct. The submissions to establish the limits of the continental shelf appurtenant to Malaysia and to the Socialist Republic of Vietnam beyond 200 miles from their baselines from which the breath of their respective territorial seas are measured constituted legitimate undertakings in the implementation of the obligations of States Parties to UNCLOS 1982 as well as the Rules of Procedure of the CLCS.
In Note HA 24/09 of May 20, 2009, the Permanent Mission of Malaysia to the United Nations reconfirmed that the Joint Submission was 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, and Article 9 of Annex II to 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. The Note reconfirmed also that the Joint Submission was without prejudice to the position of States which were parties to a land or maritime dispute in accordance with Paragraph 5 (b) of Annex I to the Commission’s Rule of Procedure. The two countries invited concerned parties to enter peaceful negotiations to settle all arising questions in the South China Sea.
Perspective after May 2009
Under Article 76, Paragraph 8, of UNCLOS 1982, the process of defining the outer limit of the extended continental shelf involves several stages. In the first phase, the coastal State concerned conducts scientific surveys and collects data to assess whether it has the right to make a submission in accordance with Article 76 of the Convention. The submission is the right of the coastal State but this right is limited by the obligation not to affect the rights of others, including the interests of the world community and concerned states. (The interests of the world community will be safeguarded by the consideration of the CLCS.) The decision to make a submission unilaterally deals with the coastal state taking into account collected and analyzed geodetic data and the attitudes of neighbor countries. In the second stage, the CLCS verifies the submission to balance the rights of the submitting country and the world community, and it verifies the received scientific and technical information within the legal framework of UNCLOS 1982. The CLCS’s recommendations respond to the scientific merits of a state’s claim to an extended continental shelf beyond 200 miles, and determine what formula is to be applied under Article 76 of UNCLOS 1982. In the third phase, the coastal state and CLCS cooperate to revise the submission in accordance with CLCS recommendations. “The advisory process” can be prolonged several times until the coastal State’s submission (revised or new) conforms the CLCS’s recommendations. The fourth stage is the procedure in which the coastal State and CLCS report relevant data and maps to the Secretary-General of the United Nations for registration. The revised outer limit of the continental shelf beyond 200 miles on the basis of the CLCS’s recommendations will be recognized as the final delimitation, binding on the coastal State and the 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 miles and the existence of the international seabed in that area is recognized. In seas in which the overlapping claims exist, the final delimitation rests with the coastal State. The Commission has no competence to deal with overlapping claims. That body has power to make recommendations only in the case of clearly defining the scope of the overlapping claim area that is not affected by the submissions. Even in the case of having no objections from concerned countries to the submissions, the final solution is not easy to reach in a short time. From 1994 to 2008, only nine submissions were sent to the CLCS for evaluation. The time for one submission to be adopted has been an average of over twenty months. By October 30, 2009, the Commission had received 51 submissions and 44 other with preliminary information. With the current rate of two submissions evaluated a year, the CLCS cannot verify and give recommendations for all 51 registered submissions until 2059.
The South China Sea is well-known by the sovereignty disputes over two strategically important archipelagos - the Paracels and the Spratlys. Claimant countries are all members of UNCLOS 1982 and have shown attitudes of implementation of Article 76 to fix the outer limit of the extended continental shelf.
While Vietnam and Malaysia have a view to separate the submission of the outer limit of extended continental shelf beyond 200 miles from the sovereignty disputes over islands, China and the Philippines want to link the two problems. By the text of its preliminary information, Brunei seems to share the view of fixing the outer limit of its extended continental shelf beyond 200 miles measured from the baseline of land territory without taking into consideration the islands in dispute. The concerned countries have different views because of uncertainties in UNCLOS 1982 over the island status. Article 121 (3) says 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 Spratly 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.
The submission of Vietnam and Malaysia, even without objection, won’t be heard until 2035. In the other words, for the next 26 years, the submissions will have few impacts on the development in the South China Sea. However, from the other perspective, the submission and objections could bring the claimant countries in the South China Sea to a cooperative end. They encourage the concerned states to follow UNCLOS 1982 more than other grounds. Countries which have not yet finished the final submissions will push up their completion. There can be new partial or final submissions or joint submissions as well as new objections. Through those activities, the concerned parties will reach greater understand of each other, present clear positions in regard of arising issues, and create a forum for discussion. Secondly, they encourage parties to have serious discussions about the island status under Article 121 (3) of UNCLOS 1982 and the outer limit of the extended continental shelf beyond 200 miles. They encourage the parties to clarify their claim limits in light of the UNCLOS’s scientific and neutral criteria. Working together assures further collaboration in resolving disputes.
The disputes in the South China Sea are not an obstacle to performing other obligations of coastal states in the implementation of UNCLOS 1982. The key solution to all problems in the South China Sea is building trust and goodwill among concerned parties. It should be talk to your partners, listen to them and work together on the basis of respect for equal and mutual interests and international law for peace and security in the region.-