SCRAMBLING OVER SEA-BED

TWENTY-FIRST CENTURY FRONTIER:
SCRAMBLING OVER THE SEA-BED,
SHORT OF THE DEEP OCEAN FLOOR

by
Dato’ Ir Dr A. Bakar Jaaar[1]

By May 13, 2009, about 50 over countries[2] which have become Parties to the United Nations Convention on the Law of the Sea 1982 (UNCLOS) before May 13, 1999 have to make their respective submissions through the Secretary-General of the United Nations (UN) to the Commission on the Limits of the Continental Shelf (CLCS), should they have decided to extend the outer limits of their continental shelves beyond 200 nautical miles (M) from the baselines from which the breadth of their territorial seas are measured. As at March 30, 2009, a total of 18 submissions have been made by the following countries (in the order of submission): Russian Federation (25 December 2001), Brazil (17 May 2004), Australia (15 November 2004), Ireland (25 May 2005), New Zealand (19 April 2006), France-Ireland-Spain-the United Kingdom of Great Britain and Northern Ireland (FISU)(19 May 2006), Norway (27 November 2006), France (French Guiana and New Caledonia) (22 May 2007), Mexico (13 December 2007), Barbados (8 May 2008), the United Kingdom of Great Britain and Northern Ireland (Ascension Island) (9 May 2008), Indonesia (West Sumatra)(16 June 2008), Japan (12 November 2008), Mauritius-Seychelles (1 December 2008), Suriname (5 December 2008), Myanmar (16 December 2008), France (French Antilles and the Kerguelen Islands) (5 February 2009), and Yemen (20 March 2009).[3]
By the 23rd Session of the Commission, over the period March 2-April 9, 2009, the first six submissions by the said coastal States have received their respective recommendations of the CLCS, for these coastal States to make further revisions to their own submissions, in the case of the Russian Federation and Brazil, and for the next four, to proceed either with the necessary delineation of the outer limits of the continental shelf, or with the delimitation of such limits with their opposite or adjacent coastal States. According to Article 76 (8) of the Convention, “[t]he limits of the shelf established by a coastal State on the basis these recommendations shall be final and binding.”
“On 9 April 2008, the Commission on the Limits of the Continental Shelf adopted recommendations confirming Australia’s entitlement to a continental shelf beyond 200 nautical miles from the coastline (extended continental shelf) of some 2.56 million square kilometers. This is an area slightly larger than the land area of Western Australia and one-third the size of the Australian continent.”[4] Thus, Australia is the first country to be in a position to proclaim the outer limits of its continental shelf on the basis of the recommendations of the Commission.
The next country to be a similar position is New Zealand which has received its Recommendations from the Commission on 22 August 2008. “New Zealand's claim over 1.7 million square kilometres of seabed has been confirmed by a United Nations commission, Prime Minister Helen Clark says. Miss Clark says the continental shelf is the area of seabed outside New Zealand's existing 200-nautical-mile exclusive economic zone. Recognition of the new continental shelf boundaries will enable New Zealand to exercise its rights to the area, including exploiting resources such as minerals and petroleum. Miss Clark says New Zealand's submission to the UN was the result of a $44 million project carried out by officials and scientists. The new boundary will be binding on other countries, although the Government will negotiate with Fiji and Tonga on the continental shelf north of New Zealand.”[5] “It is in addition to the approximately four million square kilometres of seabed in the New Zealand EEZ. The extended continental shelf is about six times New Zealand’s total land area (about 270,000 square kilometres).”[6] Thus, the ratio of the New Zealand’s total maritime jurisdictions over its land territories is at least about 21:1.
Other countries which have received similar recommendations from the Commission are Ireland (on 7 September 2006 for its partial submission in respect of the area of the Porcupine Bay), France-Ireland-Spain-the United Kingdom of the Great Britain and Northern Ireland for their Joint Submission in respect of the area of the Celtic Sea and the Bay of Biscay) (on 24 March 2009), Norway (on 27 March 2009), and Mexico (on 31 March 2009 for its partial submission in respect of the area in the Gulf of Mexico [“Western Polygon”]).
The first two countries which have made their respective submissions to the Commission, namely, Russian Federation and Brazil, are yet to be in a position to make their respective proclamation over the entitlement to their respective extended continental shelves, though these two wide-margin countries have received their respective recommendations from the Commission on 27 June 2002 and 4 April 2007 respectively.
In the case of the Russian Federation, four areas relating to the continental shelf extending beyond 200 nautical miles were contained in its submission to the Commission: the Barents Sea, the Bering Sea, the Sea of Okhotsk and the Central Arctic Ocean.
In respect of the areas of the Barents and Bering seas, the Commission recommended to the Russian Federation, upon entry into force of the maritime boundary delimitation agreements with Norway in the Barents Sea, and with the United States of America in the Bering Sea, to transmit to the Commission the charts and coordinates of the delimitation lines as they would represent the outer limits of the continental shelf of the Russian Federation extending beyond 200 nautical miles in the Barents Sea and the Bering Sea respectively.

However, regarding the Sea of Okhotsk, the Commission recommended to the Russian Federation to make a well-documented partial submission for its extended continental shelf in the northern part of that sea. The Commission stated that this partial submission shall not prejudice questions relating to the delimitation of boundaries between States in the south for which a submission might subsequently be made, notwithstanding the provisions regarding the 10-year time limit established by article 4 of annex II to the Convention. In order to make this partial submission, the Commission also recommended to the Russian Federation to make its best efforts to effect an agreement with Japan in accordance with paragraph 4 of annex I to the Rules of Procedure of the Commission.

As regards the Central Arctic Ocean, the Commission recommended that the Russian Federation make a revised submission in respect of its extended continental shelf in that area based on the findings contained in the recommendations.[7]

In the case of Brazil, it is still in the process of seeking further clarifications on the recommendations made by the Commission.




Under the said international law, a coastal State has exclusive rights only over the non-living resources (e.g. petroleum and minerals) and sedimentary species (e.g. oysters and sponges) of the seabed that comprises the submerged prolongation of its landmass (known as the “continental shelf”). These rights exist by virtue of the State’s sovereignty over its land territory. However, a proportion of the revenue from the exploration and exploitation of the resources of the continental shelf outside the 200 nautical mile limit, that is up to a maximum of 7% the net proceeds, must be paid to the International Seabed Authority (ISBA) for distribution to developing States.
On living resources, coastal States do not have any special rights to, including rights over fisheries in, the water column beyond the 200 nautical mile Exclusive Economic Zone (EEZ) and above their respective extended continental shelves, or any control over other activities such as shipping and navigation in these areas of high seas.
Nonetheless, under article 246 of the UNCLOS, coastal States could exercise their rights to regulate any activity relating to marine scientific research in the extended continental shelf areas, should they designate the areas under their respective plans to explore and exploit the natural resources therein.
The areas beyond any national maritime jurisdictions would belong to the global commons; the net proceeds from any exploration and exploitation of the non-living resources would go to the ISBA which is entrusted to manage the Common Heritage of Mankind Fund.
The living resources beyond the national jurisdictions would continue to be up for grab!

Manhattan,
New York City

31 March 2009
[1] Dato’ Ir Dr A. Bakar Jaafar is Adviser, National Committee on Continental Shelf (since 2001), Secretariat to National Security Council, Prime Minister’s Department, Malaysia; and Elected-Member of the UNCLOS Commission on the Limits of the Continental Shelf (CLCS) (1997-2002)(2002-2007)(2007-2012). The views expressed herein are personal, and do not necessarily reflect the position of the Department nor that of the Commission. He can be reached by e-mail: bakar.jaafar@gmail.com
[2] United Nations Convention on the Law of the Sea Meeting of States Parties, Fifteenth Meeting, New York, 16-24 June 2005.
Report of the fifteenth Meeting of States Parties, 25 July 2005 (SPLOS/135) http://daccessdds.un.org/doc/UNDOC/GEN/N05/439/16/PDF/N0543916.pdf?OpenElement
[3] http://www.un.org/Depts/los/clcs_new/clcs_home.htm, 31 March 2009
[4] Australia, Geoscience. AUSGEO News, Issue 93 March 2009. 2p.
[5] http://newszealand.blogspot.com/2008/09/un-recognises-nz-continental-shelf.html. March 31, 2009
[6] http://www.mfat.govt.nz/Media-and-publications/Features/990-NZ-extended-seabed-claim.php. March 31, 2009
[7] United Nations General Assembly , 8October 2002, Fifty-seventh session, Agenda item 25 (a), Oceans and the law of the sea, A/57/57/Add.1 (http://daccessdds.un.org/doc/UNDOC/GEN/N02/629/28/PDF/N0262928.pdf?OpenElement, para 21, March 31, 2009)