EXTENDED CONTINENTAL SHELF

MAY 13, 2009 DEADLINE

by Dato’ Ir Dr A. Bakar Jaafar[1]

Daddy “Happy 34th Birthday!”
Hajar “Daddy, do you have a secret child who turns thirty four today that I’m not aware of.”
Daddy “Jat! You know me … I have always been open and transparent!”
Hajar “So who is this other not secret child that you have? Do we share a mother?”
Daddy “No. His wife does!”
Hajar , from DownUnder, went panic, and called her Daddy in Malaysia immediately : “Daddy … are you serious!?”
The truth of the matter was that it was the birthday of Hajar’s brother-in-law, Hafiz, who is married to Hajar’s eldest sister, Mona.
Their Dad is Abu Bakar Jaafar who sits on the Commission on the Limits of the Continental Shelf (www.un.org/depts/los).

May 13, 2009 was also the deadline for the majority of States Parties to the UNCLOS of 1982 to make their respective submissions, either unilaterally or jointly, through the UN Secretary-General to the Commission.

By this date, some 69 countries filed claims to oceanic territories along their coast for an area extending 200 nautical miles from shore, said Hariharan Pakshi Rajan, Secretary of the Commission on the Limits of the Continental Shelf.

He said a list of countries, and their submission papers, had been posted on the website of the Commission’s secretariat. There were 50 completed submissions and 39 preliminary submissions, which States submitted individually or jointly with others.

Mr. Rajan explained that, under the 1982 Law of the Sea Convention, coastal States could stake a claim to their part of the continental shelf -- which is the natural prolongation of their territory into the sea. If that area went past 200 nautical miles, States must submit data proving that it was, in fact, an extension of their territory, before they could take steps to establish that claim legally. They must submit scientific evidence to a body of 21 experts in geology, geophysics and hydrography, who determined the validity of their claims.

“Scientifically, the natural prolongation of the land under the territory can go up to the end of the continental margin, but, legally, it has to be delineated. That’s where the role of the Convention comes into being, that’s where the role of the Commission on the Limits of the Continental Shelf is”, he explained.

In August, the Commission would hear oral presentations from 29 countries, while seven others had been invited to make presentations in April 2010, he said. The Commission would then break into smaller subcommissions of seven experts to examine each case in detail. Two countries were already expected to appear before their respective subcommissions soon.

The Commission’s task was not to prove sovereignty, he stressed, but to show actual prolongation of underwater territory beyond 200 nautical miles, which implied that countries were entitled to the resources found there. “In the continental shelf, States have a right to the resources. It is not an extension of sovereignty; it is only an extension of sovereign rights for the purposes of exploring and exploiting its resources”, he said, adding later that areas outside the delineated zone were considered international areas governed by the International Seabed Authority.

Just because a country submitted its claim ahead of other countries did not mean its claim was reinforced, he added. Rather, verified submissions would be used as a basis for drawing their maritime boundaries in negotiation with other States. The Commission was the only body under the Convention that could verify such data.

Asked how long it would take to process all the claims, Mr. Rajan said that was a matter of serious concern. “We’re trying to see how many more subcommissions could meet and what kind of a timeframe it would be. It all depends on the availability of the members. Members are involved in more than one subcommission.”

Two years ago, the Chairman of the Commission said it might take by 2035 to review all the claims, which Mr. Rajan said could change if more subcommissions were authorized, or if they gained access to state-of-the-art equipment. “Members of the Commission are working in their individual capacity as experts back home or elsewhere. The number of days that they spend in New York twice a year is very large”, he said, explaining that the experts met at numerous intersessional meetings and at laboratories of the Division for Ocean Affairs and the Law of the Sea.

The information submitted by States sometimes contained sensitive information, he said, and meetings between the Commission and those States were held in private. But once an executive summary of the claim was published by the Commission, there was always a possibility for other States to react and respond.

Mr. Rajan stressed that the Commission was governed by strict rules of procedure when examining scientific evidence, and was not designed as a tribunal to arbitrate between parties in cases of dispute.

One reporter asked about a joint filing by Somalia and Kenya, with help from Denmark, suggesting the possibility of abuse by developed countries interested in extracting oil in a developing country’s territory. Mr. Rajan said that the Convention contained provisions allowing coastal States to seek technical advice from any party. States could also draw from a special trust fund established by the United Nations to complete their submissions. The fund could not be used to conduct ocean surveys or to collect data, but only to prepare a written submission following the establishment of entitlement.

Asked to comment on early claims by Arctic States, Mr. Rajan stressed the Commission’s neutral stance towards issues of sovereignty, saying that the decision to “delimit” the territory of a country would be agreed by States themselves.

So far, Denmark had filed a claim with respect to the Faroe Islands. Russia had submitted its claim in 2001, but was asked to provide additional data.

The United Kingdom and Argentina had submitted claims with respect to the continental shelf around the Falkland Islands, but Mr. Rajan said that the Commission had rules preventing it from examining claims for territories under dispute. However, if disputing parties resolved their differences, the Commission would consider their submissions without prejudice to future border discussions.

Under the Convention, States must submit their claim within 10 years from the Convention’s entry into force, in November 1994, he explained. But the adoption of a set of scientific and technical guidelines, on 13 May 1999 – 10 years ago today -- had complicated matters.

“States that had ratified the Convention before that date had not had the benefit of those guidelines”, said Mr. Rajan. For those States, the Conference of States Parties decided that the 10-year period would begin on 13 May 1999.

Mr. Rajan said that, last year, States parties had decided to give leeway to States unable to meet the 13 May 2009 deadline, allowing them instead to submit preliminary information explaining the status of their claims and when they could be expected to complete their submission.

Malaysia and Viet Nam have made their joint submission in respect of the southern part of the South China Sea, one week before the deadline, that was on 6 May 2009, but it is queued behind 32 other earlier submissions made by other coastal States Parties to the Convention.

(http://www.un.org/News/briefings/docs/2009/090513_Sea.doc.htm 18 May 2009)


Bukit Jelutong, Shah Alam
May 26, 2009
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[1] Dato’ Bakar is The Adviser to the National Committee on Continental Shelf, Secretariat to the National Security Council, Prime Minister’s Department, Putrajaya, Malaysia. He is also an Elected-Member of the Commission on the Limits of the Continental Shelf (1997-2002)(2002-2007)(2007-2012)