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

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Coastal States in the South China Seaand Submissions on the Outer Limits ofthe Continental ShelfNguyen Hong Thao a & Ramses Amer ba Faculty of Law , Vietnam National University , Hanoi, Vietnamb Department of Oriental Languages , Stockholm University ,Stockholm, SwedenPublished online: 05 Aug 2011.

To cite this article: Nguyen Hong Thao & Ramses Amer (2011) Coastal States in the South China Seaand Submissions on the Outer Limits of the Continental Shelf, Ocean Development & InternationalLaw, 42:3, 245-263, DOI: 10.1080/00908320.2011.592473

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Ocean Development & International Law, 42:245–263, 2011Copyright © Taylor & Francis Group, LLCISSN: 0090-8320 print / 1521-0642 onlineDOI: 10.1080/00908320.2011.592473

Coastal States in the South China Seaand Submissions on the Outer Limits

of the Continental Shelf

NGUYEN HONG THAOFaculty of LawVietnam National UniversityHanoi, Vietnam

RAMSES AMERDepartment of Oriental LanguagesStockholm UniversityStockholm, Sweden

The purpose of this article is to examine the outer continental shelf submissions madeby the coastal states of the South China Sea and their potential impact on legal andpolitical developments in the South China Sea. In accordance with the United NationsConvention on the Law of the Sea of 1982 and the guidelines of the Commission on theLimits of the Continental Shelf, coastal states are to establish the outer limits of theircontinental shelf where it extends beyond 200 nautical miles. Meeting this obligation iscomplicated in enclosed or semienclosed seas where there are maritime disputes suchas in the South China Sea.

Keywords continental shelf, South China Sea

Introduction

The purpose of this article is to examine the submissions on the outer limit of the continentalshelf beyond 200 nautical miles made by the coastal states of the South China Sea andthe potential impact of the submissions on the legal and political situation in the SouthChina Sea. Pursuant to the United Nations Convention on the Law of the Sea of 1982(UNCLOS 1982),1 coastal states with a shelf area beyond 200 nautical miles are obligatedto submit information to the Commission on the Limits of the Continental Shelf (CLCS)2

Received 28 October 2010; accepted 21 January 2011.This article is a revised version of a paper prepared for the Sixth Advisory Board on the Law of

the Sea (ABLOS) Conference, hosted by the International Hydrographic Bureau, Monaco, October25–27, 2010.

Address correspondence to Professor Nguyen Hong Thao, Faculty of Law, Vietnam NationalUniversity, Hanoi, Vietnam. E-mail: [email protected] and Ramses Amer, Senior Re-search Fellow, Department of Oriental Languages, Stockholm University, Guest Research Professor,National Institute for South China Sea Studies, Haikou, and Research Associate, Swedish Instituteof International Affairs, Stockholm, Sweden. E-mail: [email protected]

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246 N. H. Thao and R. Amer

for the purpose of establishing the outer limit of their shelf area. The implementation ofthis obligation is complicated in enclosed or semienclosed seas where there are maritimedisputes such as in the South China Sea. According to UNCLOS 1982, coastal statesmust meet a double requirement: fulfill the obligation of making submissions on the outerlimit of the continental shelf and do so without prejudice to the rights (and interests) ofthe regional community and other neighboring states. The best option is cooperation andmutual understanding between regional coastal states based on a correct and objectiveinterpretation of UNCLOS 1982 as well as the Scientific and Technical Guidelines of theCLCS.3

The Continental Shelf Beyond 200 Nautical Miles and the Work of the CLCS

UNCLOS 1982 entered into force in 1994. In accordance with its provisions, each coastalstate has the right to have a 12-nautical-mile territorial sea, a 200-nautical-mile exclusiveeconomic zone (EEZ), and an adjacent continental shelf. The latter comprises

the sea-bed and subsoil of the submarine areas that extend beyond its territorialsea throughout the natural prolongation of its land territory to the outer edge ofthe continental margin, or to a distance of 200 nautical miles from the baselinesfrom which the breadth of the territorial sea is measured where the outer edgeof the continental margin does not extend up to that distance.4

In accordance with this wording, each coastal state has a right to a continental shelf of 200nautical miles. Depending on the natural characteristics of its continental margin, somecoastal states may have the right to a continental shelf that extends beyond 200 nauticalmiles from the baselines from which the breadth of the territorial sea is measured. Theouter limit of the shelf beyond 200 nautical miles is to be established by either

(i) a line of the outermost fixed points at each of which the thickness ofsedimentary rocks is at least 1 per cent of the shortest distance fromsuch point to the foot of the continental slope; or

(ii) a line of the outermost fixed points not more than 60 nautical milesfrom the foot of the continental slope.

In either case, the line of the outermost fixed points is not to exceed 350 nautical milesfrom the baselines from which the breadth of the territorial sea is measured or 100 nauticalmiles from the 2,500-meter isobaths, which is a line connecting the depth of 2,500 meters.5

Article 76, paragraph 8, of UNCLOS 1982 further states that

information on the limits of the continental shelf beyond 200 nautical milesfrom the baselines from which the breadth of the territorial sea is measuredshall be submitted by the coastal State to the Commission on the Limits of theContinental Shelf set up under Annex II on the basis of equitable geographicrepresentation. The Commission shall make recommendations to coastal Stateson matters related to the establishment of the outer limits of their continentalshelf. The limits of the shelf established on the basis of these recommendationsshall be final and binding.

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The South China Sea and Outer Continental Shelf Submissions 247

Article 76 of UNCLOS 1982 refers to coastal states without being qualified as states parties.There are issues regarding: the legal nature of the extended continental shelf beyond 200nautical miles; the rights and obligations of states parties and non-states parties of UNCLOS1982 concerning submissions to the CLCS; the criteria for the establishment of the outerlimit of the continental shelf; and the role of the CLCS.6

The limit of the continental shelf beyond 200 nautical miles is defined in a differentway compared with other maritime zones, such as the territorial sea and the EEZ, becausedelineation does not depend exclusively on the distance factor. Nevertheless, from a legalpoint of view, there is no difference between the continental shelf out to 200 nautical milesand the extended continental shelf beyond 200 nautical miles. The legal continental shelf ofa coastal state extends from its coast throughout the natural prolongation of its land territory.Natural prolongation reflects the principle that the “land dominates sea.” It is legally derivedfrom the 1945 Truman Proclamation on the Continental Shelf through which the UnitedStates claimed competence over hydrocarbon activity within its continental shelf7 and fromthe International Court of Justice in the North Sea Continental Shelf Cases in 1969,8 and isaffirmed by state practice.9 Moreover, a coastal state’s right to its adjacent continental shelfwas codified in the 1958 Geneva Convention on the Continental Shelf.10 Consequently,states parties to UNCLOS 1982 and non-states parties have the same right to extend theircontinental shelf based on natural prolongation.11 However, the non-states parties do notneed to strictly follow the procedural obligation to submit their outer limit of the continentalshelf beyond 200 nautical miles to the CLCS.

According to Annex II, Article 4, of UNCLOS 1982, the timeline for the submission tothe CLCS was to be within 10 years of the entry into force of the Convention for coastal statesparties. However, the timeline was modified and fixed at 13 May 2009 through a decisionon 29 May 2001 at the Eleventh Meeting of the UNCLOS 1982 States Parties (SPLOS).12

A decision adopted at the Eighteenth Meeting of the SPLOS on 20 June 2008 allowscoastal states, in particular developing countries, including small island developing statesthat face a lack of financial and technical resources and relevant capacity and expertise orother similar constraints, to meet the 2009 timeline by submitting preliminary informationindicative of the outer limits of the continental shelf beyond 200 nautical miles.13 Thepreliminary information is not to be acted on by the CLCS and is without prejudice to asubsequent full submission. This raises the question about whether coastal states that didnot make either a submission or a preliminary information indication by the 2009 deadlinewould lose their rights over the extended continental shelf beyond 200 nautical miles. Theanswer is no since there is an inherent right of the coastal state over the natural prolongationof its continental shelf.14

By meeting the time requirement for submissions, coastal states have shown their de-termination to fulfill the UNCLOS 1982 obligation. Up to 13 May 2009, 51 submissionsand 45 preliminary information indications were submitted. Four subsequent submissionshave been received from Mozambique, Maldives, Denmark, and Bangladesh.15 The sub-missions contribute to the creation of a more full picture of the outer limits of the continentalshelves for coastal states as well as the limits of the international seabed area. The furtherthat the outer limits of continental shelves are into the sea, the narrower the internationalseabed area where mineral resources are within the jurisdiction of the International SeabedAuthority (ISA).16 The ISA, while directly affected by the Article 76 criteria and process,has no role in the determination of the common boundary between the international seabedarea and the extended continental shelf beyond 200 nautical miles.17

The function of the CLCS is threefold; first, to consider the data and other materialsubmitted by coastal states concerning the outer limits of the continental shelf in areas

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where those limits extend beyond 200 nautical miles; second, to make recommendationsto the coastal states in accordance with Article 76; and, third, to provide scientific andtechnical advice, if requested by a coastal state, during the preparation of the data referredto in the submission process.18

Article 9 of Annex II to UNCLOS 1982 provides that “the actions of the Commissionshall not prejudice matters relating to delimitation of boundaries between States withopposite or adjacent coasts.” Thus, it can be understood that the CLCS

–has no function in supporting the position of any party, imposing or influencingnegotiations on the continental shelf boundary delimitation between States withoverlapping claims over their extended shelf;–is not to be involved in any matters regarding the determination of the outerlimits of a coastal State’s extended shelf in cases of unresolved land or maritimedisputes.19

Disputes on the delimitation of the continental shelf between states with opposite or adjacentcoastlines, or other cases of unresolved maritime disputes or over insular formations, do notprevent the coastal states from making submissions to the CLCS.20 Submissions may bemade and may be considered in accordance with Annex 1 of the Rules of Procedure of theCLCS. The coastal state making a submission is required to inform the CLCS of a disputeand to ensure, to the extent possible, that the submission will not prejudice matters relatingto the delimitation of boundaries or maritime disputes between states. If a submitting statefails to comply with the above obligation to inform, the CLCS must be informed of a disputeby other states; otherwise, based on paragraph 1 of Annex I of the Rules of Procedure, theCLCS will have no reason to take into account a dispute situation in its process. The Rules ofProcedure of the CLCS encourage submitting states, before making a submission, to obtainthe prior consent of other states that might potentially be involved. When the CLCS receivesthe consent of all states that are parties to a dispute involved in a submission, the CLCS isable to consider that portion of the submission covered by the consent.21 To facilitate thework of the CLCS in consideration of a submission and to avoid third-party intervention,a submitting state can make a partial submission covering only the portion outside an areaof dispute22 or it can make a joint submission with the other claimant. Thus, in the CLCSprocess, there are not only submitting states, but there can also be other states interested inthe submission. Paragraph 5(a) of Annex I of the Rules of Procedure of the CLCS directsthat, in cases “where a land or maritime dispute exists, the CLCS shall not consider andqualify a Submission made by any of the States concerned in the dispute.” Thus, there aresituations where the CLCS cannot proceed with a submission. It can be asserted that a “land”dispute refers to a sovereignty dispute over insular formations or land such as the situationwith respect to Antarctica. Maritime dispute, arguably, refers to overlapping claimed areas.Paragraph 5(a) not only refers to states involved in a dispute, but also to states not directlyparty to a dispute but that may have an interest in a dispute. Arguably, the wording alsoextends to states concerned, not only with an ongoing dispute, but also with a situationthat may lead to a dispute in the future.23 The deadline for receiving an intervention bythird parties is set at 3 months from the date of the publication by the UN secretary-generalof the executive summary of the submission.24 The capacity for intervention pursuant toparagraph 5(a) is ensured not only for the states parties to UNCLOS 1982, but also tonon-states parties having interests in a dispute and accepting UNCLOS 1982 as a source ofthe law of the sea.

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It should be noted that coastal states have the full freedom to determinate their outerlimit of the continental shelf. The CLCS can make recommendations and other states mayprotest or otherwise not agree with the determination of an outer limit by a coastal state.The CLCS has no authority to impose a limit on a coastal state. It is also not the role of theCLCS to impose the limit for safeguarding the interests of the world community relating tothe natural resources within the area under the jurisdiction of the ISA. The function of theCLCS is to consider the technical and scientific data submitted by coastal states to meet therequirement of the formula to determine the outer limit of the continental shelf beyond 200nautical miles. Under UNCLOS 1982, the limits of the shelf established “on the basis of”the recommendations of the CLCS “shall be final and binding.”25 In this sense, the closeand effective cooperation between submitting coastal states, the CLCS, and third parties,where it is necessary, creates a mechanism to safeguard the right of the coastal states onthe one hand, and the interests of the world community on the other hand.

As set out in Article 76, paragraph 8, and in Article 4 of Annex II of UNCLOS 1982,the process of defining the outer limit of the extended continental shelf encompasses severalphases. In the first phase, a coastal state conducts scientific surveys and collects data toassess where it intends to establish—in accordance with Article 76 and the Guidelines ofthe CLCS—the outer limits of its continental shelf beyond 200 nautical miles. The decisionto make a submission to the CLCS is made by the coastal state by taking into account thecollected geodetic data. The decision to make a submission is limited by the obligation ofthe coastal state to not affect the rights of others, including the interests of world communityand other concerned states. As already noted, a submitting state is to inform the CLCS ofexisting maritime disputes or disputes over insular formations in the area of submission andmust ensure, to the extent possible, that the submission will not prejudice matters relatingto the delimitation of boundaries between states. However, it is not easy to define thoserights due to the different interpretations by concerned states of the relevant provisions ofUNCLOS 1982 and, more generally, of the law of the sea.

In the second phase, the CLCS considers the submission. The received information isverified by the CLCS under its Rules of Procedure and Scientific and Technical Guidelines.Submissions are viewed by a subcommission composed of seven members, unless theCLCS decides otherwise. A submitting coastal state may send representatives to participatein the relevant proceedings.26 At the end of the second phase, the subcommission is requiredto submit its recommendation to the CLCS. The recommendations approved by the CLCSare delivered in writing to the coastal state that made the submission. The CLCS is not ajuridical body and has no right to accept or reject objections.

If the recommendations of the CLCS are accepted by a submitting state, the thirdphase takes place. However, in the case of disagreement by a coastal state with the rec-ommendations of the CLCS, the coastal state is obligated, within a reasonable time, tomake a revised or new submission to the CLCS.27 In this third phase, the coastal state andthe CLCS are expected to cooperate in order to reach accord. The third phase can be pro-longed. The so-called ping-pong process28—submission, recommendation, resubmission,re-recommendation—continues until the achievement of the mutual accord between thesubmitting state and the CLCS.

The fourth phase is the procedure by which the coastal state is to establish the outerlimits of its continental shelf in conformity with the provisions of Article 76, paragraph8, and in accordance with the appropriate national procedures.29 At the fourth stage, aftersetting the outer limit of the Continental Shelf approved by CLCS, the coastal state has anobligation to deposit the relevant data and map showing their limit of the continental shelfwith the Secretary-General of the United Nations.30

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A major obstacle for the establishment of the outer limit of the continental shelf isthe considerable number of submissions to be considered by the CLCS and its small staff.From 1994 to 2008, only nine submissions were made to the CLCS. As of 28 April 2011,the CLCS had received 55 submissions from 48 coastal states.31 The time needed for theCLCS to do its work leading to recommendations can be illustrated by the following. On 31March 2009, the CLCS gave its recommendation on the submission of Mexico with respectto the western polygon in the Gulf of Mexico32 and, on 15 April 2010, the CLCS gave itstwo latest recommendations—one on the submission by Barbados33 and the other on thesubmission by the United Kingdom with respect to Ascension Island.34 With the currentrate of submissions being completed each year, it will take until beyond 2040 before theCLCS can verify and give recommendations for the 55 submissions currently before theCLCS.35 In addition to the full submissions, 45 preliminary information indications havebeen submitted by coastal states to the CLCS.

Submissions to the CLCS by the South China Sea Coastal States

Ten coastal states and territories surround the South China Sea.36 Brunei Darussalam, China,Indonesia, Malaysia, the Philippines, and Vietnam have pursued different approaches withrespect to the issues of the outer limit of the continental shelf. Indonesia, Malaysia, thePhilippines, and Vietnam have made submissions to the CLCS relating to their extendedcontinental shelves. Brunei and China have submitted to the CLCS preliminary informationindicative of the outer limits of the continental shelf.

Indonesia

Indonesia declared itself an archipelagic state in 1957 by the Presidential Declaration of 13December 1957. Using the doctrine of archipelagic states, Indonesia drew its archipelagicbaselines joining the outermost islands and drying reefs of the archipelagoes in 1960.37

The doctrine of archipelagic states was accepted at the Third United Nations Conferenceon the Law of the Sea (UNCLOS III) and Indonesia was one of the first states in SoutheastAsia to ratify UNCLOS 1982, doing so in 1986. Since 1996, the available bathymetric,sediment thickness, and basepoint data to delimitate the outer limits of continental shelfhave been collected and analyzed through surveys such as the Digital Marine ResourceMapping (DMRM) Project 1996–1999, the Global Bathymetric Data ETOPO2, the OceanDrilling Program (ODP), the Deep Sea Drilling Project (DSDP), and seismic reflectionprofiles archived as part of the Intergovernmental Oceanographic Commission’s Geologi-cal/Geophysical Atlas of the Pacific (GPAPA) Project.38

On 16 June 2008, Indonesia made a submission to the CLCS relating to the conti-nental shelf off northwest of Sumatra Island.39 The outer limit of the continental shelfin the area off northwest of Sumatra—under this partial submission—has been deter-mined using the 1% sediment thickness formula with respect to the shortest distanceto the foot of slope. Accordingly, five fixed points have been established, which com-bined with the 200-nautical-mile limit, form the outer limit of the extended continentalshelf in the area to the northwest of Sumatra. This area is not the subject of any disputewith another state. In its submission, Indonesia reserved the right to make submissionswith respect to the outer limits of its extended continental shelf in other areas in thefuture.40

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The Philippines

The Philippines signed UNCLOS 1982 in that year and ratified the Convention in 1984. On8 April 2009, a partial submission of extended continental shelf in the Benham Rise regionwas made by the Philippines to the CLCS.41 The area covered in the submission to thenorth and east of the West Philippine Basin and to the west and south of the Luzon, wherethere is no state with an opposite and adjacent coast to the Philippines. The outer edge ofthe continental margin in the Benham Rise region was determined by the application ofArticle 76, paragraph 4(a)(i). There are 253 points marking the proposed outer limit. Thehydrographic data was collected by survey cruises during 2004–2008. In its submission,the Philippines explicitly reserves the right to make other submissions for other areas ofcontinental shelf beyond 200-n. miles in the future, in conformity with the provisions ofAnnex I of the Rules of Procedure of the CLCS.42

Malaysia and Vietnam Joint Submission

Malaysia and Vietnam signed UNCLOS 1982 on 10 December 1982. Malaysia ratifiedthe Convention in 1996 and Vietnam ratified in 1994. Malaysia publicized the extent ofits territorial sea and continental shelf out to 200 nautical miles through two maps inDecember 1979.43 Vietnam proclaimed its baselines in May 1977.44 Both countries havedetermined that they have areas of continental shelf in the southern part of the South ChinaSea that extends beyond 200 nautical miles. On 6 May 2009, Malaysia and Vietnam madea joint submission to the CLCS relating to a “defined area” in the south of the SouthChina Sea.45 The area is generated and bound by the intersection point of the envelopeof arcs of the 200-nautical-mile limits of Malaysia and the Philippines in the east (PointA), the intersection of two converging envelopes of the arcs of Malaysia 200-nautical-milelimit toward the southwest of the Point A (Points B and C), by the boundary line underthe agreement on the continental shelf concluded by Malaysia and Indonesia in 196946

(Points D and E), the boundary line in the agreement on the limit of the continental shelfsigned by Vietnam and Indonesia in 200347 toward the northwest (Points F and G) andthe intersection point of the envelope of arcs of Vietnam’s 200-nautical-mile limit towardthe northeast (Points H and I) (see Figure 1). The “defined area” is beyond 200 nauticalmiles from the baselines of land territories of both Malaysia and Vietnam and outside of theagreed limits of continental shelves with other concerned countries. Both countries haveaffirmed that the joint submission would not prejudice matters relating to the delimitationof boundaries between states with opposite or adjacent coasts.48

Vietnam Partial Submission

On 7 May 2009, Vietnam made a partial submission relating to the North Area which islocated in the northwest of the South China Sea.49 The delineated outer limit of the extendedcontinental shelf is defined and bound in the north by an equidistance line between theterritorial sea baselines of Vietnam and the territorial sea baselines of China and in the westby the 200-nautical-mile limit from Vietnam. Vietnam has delineated the outer limits ofits extended continental shelf in the North Area by application of both the 1% sedimentthickness formula and the foot of the slope +60-nautical-miles formula. The submissionby Vietnam was prepared using datasets acquired by dedicated surveys in 2007 and 2008as well as datasets from the public domain including bathymetry, magnetic, gravity, andseismic data (see Figure 2). Vietnam is of the view that the area of extended continentalshelf in the submission is not subject to a dispute and, furthermore, that its submission is

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Figure 1. Map of the Vietnam-Malaysia joint submission.

without prejudice to the maritime delimitation between Vietnam and other relevant coastalstates.

Preliminary Information

China

China signed UNCLOS 1982 in that year and ratified in 1996. On the same day as rat-ification, China’s baselines were proclaimed.50 The archipelagic baselines applied to theParacel Islands by China have been objected to by Vietnam and several other countries.51

On 11 May 2009, China submitted preliminary survey findings on the outer limits of itscontinental shelf to the CLCS.52 The preliminary survey relates to an extended continentalshelf area beyond 200 nautical miles to the western slope of the Okinawa Trough in the EastChina Sea. In its preliminary information, China stated that it reserves the right to make

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Figure 2. Map of the Vietnamese individual submission (VNM-N).

outer continental shelf submissions relating to areas in the East China Sea and elsewherein the future.53 The South China Sea may be one of those areas.

Brunei Darussalam

Brunei signed UNCLOS 1982 in 1984 and ratified it in 1996. On 12 May 2009, through itspreliminary information submission, Brunei indicated that it had made significant progressin preparation of a full submission to the CLCS.54 Brunei has researched and analyzedsignificant amounts of data relating to its continental shelf. This includes extensive mor-phological, geological, geophysical, and tectonic data. However, Brunei indicated it wouldprovide the full submission to the CLCS at a later date. When Brunei makes its full submis-sion to the CLCS, it is expected to show that there is a continuous natural prolongation fromthe 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 oceanfloor of the South China Sea Basin. Thus, Brunei’s full submission to the CLCS will showthat the edge of the continental margin, lying at the transition between the Spratly Islandsarea and the deep ocean floor of the South China Sea, is situated beyond 200 nautical milesfrom the baselines from which Brunei’s territorial sea is measured.55

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It is interesting to note that, 2 months before 13 May 2009, Brunei and Malaysiareleased a joint press statement on the occasion of the working visit to Brunei Darussalammade by Abdullah Ahmad Badawi, prime minister of Malaysia, on 15–16 March 2009. Thestatement contained information about an agreement on the final delimitation of maritimeboundaries and modalities for the final demarcation of the land boundary between BruneiDarussalam and Malaysia.56

Brunei has not made any objection to the joint submission by Malaysia and Vietnam.Consequently, it can be assumed that the joint submission by Malaysia and Vietnam doesnot prejudice the rights of Brunei. Furthermore, Brunei did not clarify how the status of theSpratly Islands area may affect the extension of the continental shelf when claiming naturalprolongation from the territory of Brunei.

Objections

China

On 7 May 2009, China sent two Notes to the secretary-general of the United Nationsrequesting the CLCS not to consider the joint submission made by Malaysia and Vietnam57

or the submission made by Vietnam.58 A map of the South China Sea, including the ninedotted lines, was attached to the two Notes. According to the Notes and the annexed map,all the waters and insular formations within the nine dotted lines are claimed as being underChinese jurisdiction. Thus, China considers that the joint submission made by Malaysia andVietnam and the partial submission made by Vietnam infringe on its sovereignty, sovereignrights, and jurisdiction in the South China Sea.

The Philippines

The Philippines has delivered Notes with respect to three submissions: the joint submissionof Malaysia and Vietnam;59 Vietnam’s partial submission,60 and the submission made byPalau.61

The Philippines Note with respect to the joint submission by Malaysia and Vietnamstated that

[the] Joint Submission for the Extended Continental Shelf by Malaysia andVietnam lays claim on areas that are disputed not only because they overlapwith that of the Philippines, but also because of the controversy arising from theterritorial claims on some of the islands in the area including North Borneo.62

The Note did not identify the specific area affecting the Philippines. However, it can beunderstood that the southern part of the Philippine claim in the Spratly archipelago overlapswith the defined area under the joint submission made by Malaysia and Vietnam.63 Anotherissue raised in the Note is the territorial dispute between the Philippines and Malaysia overNorth Borneo (i.e., the state of Sabah).

The Philippines Note with respect to Vietnam’s partial submission states that the areacovered by Vietnam’s submission relating to the northern part of the South China Sea is“disputed because they overlap with those of the Philippines.”64 This seems to refer to apossible continental shelf claim by the Philippines from Scarborough Shoal.

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In both of the above Notes, the Philippines requested that the CLCS refrain from con-sidering the aforementioned submissions “unless and until after the parties have discussedand resolved their disputes.”65

Responses to the Objections

Vietnam responded to the Chinese Notes by stating that the included map “has no legal,historical basis, therefore null and void.”66 It also asserted that the Paracel and Spratlyarchipelagoes (Hoang Sa and Truong Sa in Vietnam) are part of Vietnam’s territory andthat Vietnam “has indisputable sovereignty over these archipelagoes.”67 This position wasreiterated in Note 77/HC-2011 of 3 May 2011 sent by Vietnam to the secretary-general ofthe United Nations.68

In its response to the Chinese Note, Malaysia argued that the joint submission ofMalaysia and Vietnam

constitute [sic] legitimate undertakings in implementation of the obligations ofState Parties to the United Nations Convention on the Law of the Sea 1982,which conform to the pertinent provisions of the UNCLOS 1982 as well as theRules of the Procedure of the Commission on the Limits of Continental Shelf.69

Malaysia pointed out that the joint submission was made without prejudice to the questionof delimitation of the continental shelf between states with opposite or adjacent coast. Ac-cording to Malaysia, the joint submission was also made without prejudice to the positionsof states that are parties to the land or maritime disputes in the South China Sea. Malaysianoted that it had informed China of its position prior to the submission to the CLCS.70

In response to the Philippine objections, Malaysia reconfirmed its sovereignty overSabah71 and Vietnam reaffirmed its position that it has indisputable sovereignty overthe Truong Sa (Spratlys) and Hoang Sa (Paracels) archipelagoes.72 In its Note to China,Malaysia revealed that Malaysia and Vietnam had proposed to the Philippines the possibilityof joining in the joint submission.73

During the twenty-fourth session of the CLCS in August 2009, Vietnam and Malaysiareaffirmed their positions.74 They emphasized that the joint submission was without preju-dice to the question of delimitation between states and that paragraph 5 (a) of Annex I ofthe Rules of Procedure should not be invoked. Both countries seem to share the positionthat such claims have no basis under international law and cannot be qualified as disputesin the sense of paragraph 5(a).

The CLCS decided to defer further consideration of the joint submission and theNotes Verbale until such time as the submission is next in line for consideration as queuedin the order in which it was received.75 The CLCS made this decision in order to takeinto consideration any further developments that might occur throughout the interveningperiod.76

Perspective After May 2009

Like all members of UNCLOS 1982, the coastal states bordering the South China Seahave an obligation to implement Article 76. They have the right to interpret and applyit to identify the outer limit of their continental shelf beyond 200 nautical miles. How-ever, the extension of the continental shelf beyond 200 nautical miles in the South ChinaSea is not simple. There exist sovereignty disputes over the two strategically important

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archipelagoes–the Paracels and the Spratlys.77 Other disputes relate to claims over watersand maritime areas surrounding these insular formations. Obviously, the status of an insu-lar formation as an island or rock and the related maritime delimitation issues constituteobstacles to the possibility of the extension of continental shelf in the South China Sea.

UNCLOS 1982 contains ambiguous wording with respect to the status of islands.78 Inthe context of the South China Sea, one observer has noted that many law of the sea expertswould argue that most, if not all, of the insular formations in the South China Sea shouldbe considered as rocks pursuant to Article 121(3) and thus would not be able to generatefull maritime zones.79

The status of insular formations in the South China Sea directly affects the extensionof the continental shelf beyond 200 nautical miles. Presuming that the insular formationsin the South China Sea cannot generate a continental shelf, there is the possibility of anextension of the continental shelf from the mainland beyond 200 nautical miles. The numberof submissions to the CLCS would increase and the CLCS could consider them withoutprotest from other states. If the insular formations in the South China Sea are islands underUNCLOS 1982, then the continental shelves from the insular formations would overlapwith the continental shelves extended from the mainland.

Before 13 May 2009, all concerned countries in the South China Sea had revealed theirattitudes toward the issue of fixing the outer limit of extended continental shelf beyond 200nautical miles in different ways. Moreover, the attitudes of the various states with interestin the South China Sea with respect to the status of insular formations in it are on displayin their various submissions, preliminary information, and their Notes.

Indonesia and the Philippines have made submissions to the CLCS relating to areasoutside the South China Sea; their submissions, therefore, do not clarify their attitudes onthe issue of the status of insular formations in the South China Sea. In its objections to thejoint submission of Malaysia and Vietnam and to the individual submission of Vietnam,the Philippines displayed its willingness to participate in discussions and seek a resolutionof its disputes with Malaysia and Vietnam. If an agreement could be reached, then thePhilippines could either submit unilaterally or jointly with the country concerned.

Vietnam and Malaysia pursued the policy of separating the submission of outer limitof extended continental shelf beyond 200 nautical miles from the sovereignty disputesover insular formations. They claim the extended continental shelf from their mainlandterritories. The Paracel and Spratly archipelagoes, subjects of sovereignty claims in theSouth China Sea, were not mentioned as basepoints. Both states are clearly of the view thatthe disputed insular formations remain subject to negotiations.

According to the preliminary information provided to the CLCS, Brunei’s submissionwill be based on the continuous natural prolongation of the adjacent shelf from the territoryof Brunei extending across the Spratly Islands area to the edge of the deep ocean floor ofthe South China Sea Basin.80 Brunei seems to share the same view on the continental shelfas Vietnam and Malaysia in detaching the shelf issues from insular formation sovereigntyquestions.

The status of insular formations was debated in the Congress of the Philippines andin the media in connection with the passage of House Bill 3216 on 2 February 2009concerning the archipelagic baselines as well as during the process leading to passage ofthe Archipelagic Baseline Law on 10 March 2009, in which the Kalayaan Islands Group(KIG) and Scarborough Shoal are classified as being within the “regimes of islands.”81

These insular formations are subject of sovereignty disputes between the Philippines andother countries to the west of the Philippines. China and Vietnam issued protests againstPhilippine House Bill 3216.82 It has been reported that Indonesia protested against the

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inclusion of Palmas Island located 47 nautical miles east-northeast of the SarangganiIslands off Mindanao in the Philippines.83 If the KIG and Scarborough Shoal had beenincluded in the archipelagic baselines, all the outermost insular formations in the KIG andScarborough Shoal would have been basepoints from which the continental shelf couldbe measured. Through the 2009 Archipelagic Baseline Law, this situation was avoidedbut, by establishing that KIG and Scarborough Shoal were “a regime of islands under theRepublic of the Philippines,” some uncertainty remains. The Philippine objections to theJoint Submission of Malaysia and Vietnam and the individual submission by Vietnam seemto be based on the country’s deliberations on the “regime of islands” and whether or notthey can generate their own continental shelves or only territorial seas. This position isfurther clarified in a Note of 5 April 2011 sent by the Philippines to the to the secretary-general of the United Nations in response to China’s May 2009 Notes with the attachedmaps displaying the nine dotted lines.84 In this Note, the Philippines stated that “underthe international law principle of ‘la terre domaine la mer’ . . . , the extent of the watersthat are adjacent’ to the relevant geographical features are definite and determinable underUNCLOS, specifically under Article 121 (Regime of Islands) of this said Convention.”85

The Chinese position on the status of the insular formations in the South China Sea isunclear. In February 2009, China questioned Japan’s inclusion of an insular formation in its2008 submission to the CLCS.86 Japan used Okinotorishima as a basepoint for three areaswhere Japan claimed an extended continental shelf beyond 200 nautical miles. Accordingto China, the feature is a rock and China claims that it is entitled to only a 12-nautical-mile territorial sea.87 At the Nineteenth Meeting of the SPLOS held in June 2009, Chinapresented a Note that commented that “in accordance with Article 121(3) of the Convention,rocks which cannot sustain human habitation or economic life of their own shall have noexclusive economic zone or continental shelf.”88

However, this position by China may not be consistent with the one taken in relationto the South China Sea. In the Notes of 7 May 2009 objecting to the joint submissionof Malaysia and Vietnam and to the individual submission by Vietnam, China claims“indisputable sovereignty over the islands in the South China Sea and the adjacent waters,and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabedand subsoil.”89 As already noted, the map attached to these Notes purported to indicate thewaters over which China claimed jurisdiction. In the Notes, however, the legal nature of the“relevant waters” was not specified. It is interesting to note that China has not publisheda law or decree that gives the nine dotted lines any domestic legal significance.90 No mapof this nature was attached to the official laws and regulations such as the Declaration onChina’s Territorial Sea in 1958, the Declaration of the People’s Republic of China on theTerritorial Sea and Contiguous Zone in 1992, the Declaration of the People’s Republic ofChina on Baselines of the Territorial Sea in 1996, and the Law of the People’s Republic ofChina on the Exclusive Economic Zone and Continental Shelf in 1998.91 In the Notes of2009, China claims the “relevant waters” within the nine dotted lines with no coordinates.The term “relevant waters” does not specify whether or not they relate to the EEZ, thecontinental shelf, or both. Furthermore, there is no clear explanation as to the legal basis,the method of drawing, and the status of the dotted lines, all of which has been noted byIndonesia in a Note sent to the secretary-general of the United Nations in July 2010.92

Also the Philippines Note of 5 April 2011 seems to suggest that there is “no legal basis forclaiming sovereign rights and jurisdiction over any resources in or under the waters withinthe nine-dashed line outside the waters adjacent to the islands.”93 In response to the Note ofthe Philippines, China sent a Note to the secretary-general on 14 April 2011. China claimsthat “the China’s Nansha islands is fully entitled to Territorial Sea, Exclusive Economic

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Zone (EEZ) and Continental Shelf.”94 This implies that China considers that the “NanshaIslands” (i.e., Spratly Islands) are entitled to full maritime zones. China did not mention orattach any map to this Note.95 However, the nine dotted lines map will continue to arouseboth political and scholarly debates.

Given the uncertainties in interpreting the Chinese claims, its full impact cannot beascertained. However, if the area within the nine dotted lines is considered to be Chinese,then it would exclude any possibility to claims of a continental shelf beyond 200 nauticalmiles in the South China Sea. In this situation, China would not need to make a submissionto the CLCS.

The scientific aspects of the definition of the outer limit of the continental shelf hasbeen linked by China to the territorial disputes over the Paracels and Spratlys in the SouthChina Sea. In the East China Sea, the Chinese preliminary information states that Chinawill “through peaceful negotiation, delimit the continental shelf with States with oppositeor adjacent coasts by agreement on the basis of the international law and the equitableprinciple.”96 However, in the two Notes of 7 May 2009 relating to submissions by otherstates made in the South China Sea, China did not mention the possibility of negotiations.

The Future of the Submissions

Fixing the outer limit of the continental shelf beyond 200 nautical miles is a political anda scientific matter. The task of the CLCS would be facilitated if Vietnam and Malaysia canpersuade the concerned countries to remove their objections to their submissions. However,even if there had been no objections–keeping in mind the number of submissions to theCLCS–the joint submission by Malaysia and Vietnam possibly will not be considered bythe Commission until 2019 and Vietnam’s individual submission until 2022.97 If claimantstates in the South China Sea have good intentions, they may seek to work toward anarrangement such as to give their prior consent to the consideration of the submissions, tojoin those submissions, or to make their own submissions to the CLCS.

More generally, the definition of the outer limit of the continental shelf is not a solutionto the disputes relating to insular formations in the South China Sea. First, the outer limittask cannot prejudice any land or maritime disputes and, second, the evaluation of datademands a lot of time and patience from the concerned parties.

Seen from another perspective, the submissions to the CLCS and the objections mayprovide an opportunity for the claimant countries in the South China Sea to cooperate. First,the submissions encourage the concerned states to follow UNCLOS 1982 in fixing the outerlimit of the continental shelf. Countries that have not yet finalized their submissions willincrease their efforts to complete the work and make submissions to the CLCS. Therecan be new partial or final submissions or joint submissions as well as new objections.Through those activities, the concerned parties will generate a greater understanding abouteach other’s positions and policies; this can help clarify their own positions and policies.The outer limit of the continental shelf can be a subject of discussion in forums like theWorkshop on the Managing the Disputes in the South China Sea and also can contributetoward creating new forums. Second, the submissions may encourage the parties to haveserious discussions about the status of insular formations and Article 121 (3) of UNCLOS1982. Objectively, the insular formations in the South China Sea cannot be compared withthe land territory in terms of generating maritime zones under UNCLOS 1982. The insularformations cannot be treated as archipelagic states and, consequently, archipelagic baselinesmay not be used. Third, the deadline of 13 May 2009 encouraged the parties to clarify theirclaim limits. The tendency to fix the claim limits in accordance with UNCLOS 1982’s

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scientific and neutral criteria are clearer. There are some efforts to prevent the influence ofinsular formations in disputes on the other field of activities under UNCLOS 1982. Claimsthat are not made from land features will not be in line with the basic principles of UNCLOS1982.

In conclusion, UNCLOS 1982 should serve as common ground for all maritime activi-ties. The disputes in the South China Sea are not an obstacle to fulfilling the obligations andimplementing UNCLOS 1982. The key to settling the disputes in the South China Sea is tobuild trust and goodwill among the concerned parties. The claimant states should talk withand listen to each other as they work together on a basis of respect for equal and mutualinterests and in accordance with international law in order to contribute toward peace andsecurity in the region.

Notes

1. U.N. Convention on the Law of the Sea, 1833 U.N.T.S. 397.2. Ibid., art. 76(8) and Annex II. See the Commission on the Limits of the Continental Shelf

(CLCS) Web site at www.un.org/Depts/los/clcs new/clcs home.htm.3. The Scientific and Technical Guidelines of the Commission are available at the CLCS Web

site, supra note 2.4. UNCLOS 1982, supra note 1, art. 76(1).5. Ibid., art. 76(5).6. See, generally, Vladimir Jares, “The Continental Shelf Beyond 200 Nautical Miles: The

Work of the Commission on the Limits of the Continental Shelf and the Arctic,” Vanderbilt Journalof Transnational Law 42 (2009): 1265–1309; Ted L. McDorman, “The Continental Shelf Beyond200 nm: Law and Politics in the Arctic Ocean,” Journal of Transnational Law and Policy 18 (2010):155–184; Ted L. McDorman, “The Role of the Commission on the Limits of the ContinentalShelf: A Technical Body in a Political World,” International Journal of Marine and Coastal Law17 (2002): 301–324; Ted L. McDorman, “The South China Sea After 2009: Clarity of Claimsand Enhanced Prospects for Regional Cooperation?” Ocean Yearbook 24 (2010): 507–535; AlexG. Oude Elfrink and Constance Johnson, “Outer Limits of the Continental Shelf and ‘DisputedAreas’: State Practice Concerning Article 76 (10) of the LOS Convention,” International Journalof Marine and Coastal Law 21 (2006): 461–487; and Christian Reichert, “Determination of theOuter Continental Shelf Limits and the Role of the Commission on the Limits of the ContinentalShelf,” International Journal of Marine and Coastal Law 24 (2009): 387–399. See also “TheOuter Continental Shelf: Some Considerations Concerning Applications and the Potential Role ofthe International Tribunal for the Law of the Sea,” statement by H. E. Judge Rudiger Wolfrum,president of the International Tribunal for the Law of the Sea, at the Seventy-Third BiennialConference of the International Law Association, Rio de Janeiro, 21 August 2008, available atwww.itlos.org/news/statements/Wolfrum/ILA Rio de Janeiro Outer%20Continental%20Shelf%20E.pdf (accessed 27 October 2010).

7. United States, Executive Order 9633 of September 28, 1945–Reserving and Placing CertainResources of the Continental Shelf Under the Control and Jurisdiction of the Secretary of the Interior,10 Fed. Reg. 12303, 59 U.S. Stat. 884. See Ann L. Hollick, U.S. Foreign Policy and the Law of theSea (Princeton: Princeton University Press, 1981), p. 18.

8. North Sea Continental Shelf Cases (Denmark/Netherlands v. Federal Republic of Germany),[1969] I.C.J. Reports 3.

9. Numerous states have exercised rights over the shelf beyond 200 nautical miles—issuingof permits and conducting of exploratory drilling—before the entry into force of UNCLOS 1982.For example, Canada had in place national oil and gas legislation providing the jurisdiction over theCanadian adjacent continental margin beyond 200 nautical miles based on customary internationallaw before Canada ratified UNCLOS 1982 in 2003. See Barry G. Buzan and Danford W. Middlemiss,“Canadian Foreign Policy and the Exploitation of the Seabed,” in Canadian Foreign Policy and the

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Law of the Sea, ed. Barbara Johnson and Mark W. Zacher (Vancouver, Canada: University of BritishColumbia Press, 1977), pp. 3–7; Ted L. McDorman, “Canada Ratifies the 1982 United NationsConvention on the Law of the Sea: At Last,” Ocean Development and International Law 35 (2004):103 and 106; and McDorman, “The Continental Shelf,” supra note 6, at 165.

10. Convention on the Continental Shelf, 29 April 1958, 499 U.N.T.S. 311.11. Ted L. McDorman, “The Entry into Force of the 1982 LOS Convention and the Article

76 Outer Continental Shelf Regime,” International Journal on Marine and Coastal Law 10 (1995):165–167 states:

that there appears to exist sufficient state practice based on the 1958 Geneva Conventionon the Continental Shelf and upon Article 76 itself to support the view that, as a matter ofcustomary international law, states can legally exercise jurisdiction over the continentalmargin beyond 200 nautical miles irrespective of the State’s status as a LOS Conventionratifier (p. 167).

See also Oude Elfrink and Johnson, supra note 6, at 461–487; and Wolfrum, supra note 6.12. “Decision regarding the date of commencement of the ten-year period for making submis-

sions to the Commission on the Limits of the Continental Shelf set out in article 4 of Annex II to theUnited Nations Convention on the Law of the Sea, Meeting of the States Parties, Eleventh Meeting,14–18 May 2001,” SPLOS/72, 29 May 2001, available at the UN Division for Ocean Affairs and theLaw of the Sea (DOALOS) Web site, www.un.org/Depts/los/index.htm.

13. “Decision regarding the workload of the Commission on the Limits of the Continental Shelfand the ability of States, particularly developing States, to fulfill the requirements of article 4 ofannex II to the United Nations Convention on the Law of the Sea, as well as the decision containedin SPLOS/72, paragraph (a), Meeting of the States Parties, Eighteenth Meeting, 13–20 June 2008,”SPLOS/183, 20 June 2008, available at the DOALOS Web site, supra note 12.

14. Alex G. Oude Elferink, “Article 76 of the LOSC on the Definition of the Continental Shelf:Questions Concerning Its Interpretation from a Legal Perspective,” International Journal of Marineand Coastal Law 21 (2006): 269 and 277–279, has stated: “non-compliance with the time limitcontained in Article 4 of Annex II does not have any consequences for the entitlement of the coastalstate over its continental shelf,” (p. 279) See also “Meeting of the States Parties, Thirteenth Meeting,14–18 June 2001,” SPLOS/73, 14 June 2001, para. 75, available at the DOALOS Web site, supra note12: “Some delegations pointed out that there was no legal consequence stipulated by the Conventionif a State did not make submission to the Commission. Several delegations underscored the principlethat the rights of the coastal State over its continental shelf were inherent and . . . did not depend uponoccupation, effective or notional, or any express proclamation.”

15. See the list of submissions, available at the CLCS Web site, supra note 2.16. See UNCLOS 1982, supra note 1, part XI.17. L. D. M. Nelson, “The Settlement of Disputes Arising from Conflicting Outer Continental

Shelf Claims,” International Journal of Marine and Coastal Law 24 (2009): 415.18. UNCLOS 1982, supra note 1, Annex II, art. 3(1).19. Michael Sheng-Ti Gau, “Third Party Intervention in the Commission on the Limits of the

Continental Shelf Regarding a Submission Involving a Dispute,” Ocean Development and Interna-tional Law 40 (2009): 63.

20. Rules of Procedure of the Commission, Rule 46(1) and Annex II, available at the CLCSWeb site, supra note 2.

21. Ibid., Annex I, para. 5(a).22. Ibid., Annex I, para. 3. Gau, supra note 19, at 65, comments that “the idea of a partial

submission covering only the dispute-free portion of the outer limits is that potential third states willrefrain from disturbing the consideration by the CLCS and that this may help speed up the CLCSrecommendation process.”

23. Ibid., at 6424. Rules of Procedure, supra note 20, Rule 51(1).

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25. UNCLOS 1982, supra note 1, art. 76(8).26. Ibid., Annex II, art. 5.27. Ibid., Annex II, art. 8.28. See McDorman, “The Role of the Commission,” supra note 6, at 306.29. UNCLOS 1982, supra note 1, Annex II, art. 7.30. Ibid., art. 76(9).31. See supra note 15.32. CLCS, “Summary of Recommendations to Mexico,” 31 March 2009, available at the CLCS

Web site, supra note 2.33. CLCS, “Summary of Recommendations to Barbados,” 15 April 2010, available at the CLCS

Web site, supra note 2.34. “Summary of Recommendations to the United Kingdom Respecting Ascension Island,” 15

April 2010, available at the CLCS Web site, supra note 2.35. Ron Macnab has calculated that, if the rate is two submissions per year, the CLCS will

have verified 51 submissions by 2059. The timetable will be 2034 with the rate of 4 submissionsper year and 2022 with the rate of 8 per year. See Ron Macnab, “Complications in Delimiting theOuter Continental Shelf,” PowerPoint presentation at “Changes in the Arctic Environment and theLaw of the Sea,” Thirty-Third Annual Conference of the University of Virginia Center for OceansLaw and Policy, Seward, Alaska, 20–23 May 2009, available at www.virginia.edu/colp/pdf/Macnab-outer-c.s.pdf (accessed 13 May 2009).

36. The name “South China Sea” is used internationally and does not prejudice any nationalclaims in this sea.

37. See “Executive Summary—Continental Shelf Submission of Indonesia: Partial Submissionin Respect of the Area of the North West of Sumatra,” 16 June 2008, available at the CLCS Web site,supra note 2.

38. Sobar Sutisna, T. Patmasari, and Khafid, “Indonesian Searching for It’s Continental ShelfOuter Limits, National Coordinating Agency for Surveys and Mappings (BAKOSURTANAL),”available at ww.gmat.unsw.edu.au/ablos/ABLOS05Folder/SutisnaPaper.pdf (accessed 13 May 2009).

39. Indonesian, Partial Submission, supra note 37.40. Ibid.41. The Philippines, “Executive Summary—A Partial Submission of Data and Information on

the Outer Limit of the Continental Shelf,” 21 April 2009, available at the CLCS Web site, supra note 2.42. Ibid., at 1 and 12.43. See Nguyen Hong Thao and Ramses Amer, “The Management of Vietnam’s Maritime

Boundary Disputes,” Ocean Development and International Law 38 (2007): 308.44. Ibid., at 306.45. Malaysia-Vietnam, “Executive Summary–Joint Submission in Respect to the Southern Part

of the South China Sea,” 7 May 2009, available at the CLCS Web site, supra note 2.46. Agreement Between Indonesia and Malaysia Relating to the Delimitation of the Continental

Shelves, 27 October 1969, I.L.M., vol. 9 (1970), 1173–1176.47. Agreement Between Vietnam and Indonesia concerning the Delimitation of the Continental

Shelf Boundary, 26 June 2003, LOS Bulletin, vol. 67, 39.48. Malaysia-Vietnam Joint Submission, supra note 45, at 2.49. Vietnam, “Executive Summary—Partial Submission in Respect of the North Area,” 11 May

2009, available at the CLCS Web site, supra note 2.50. See Daniel J. Dzurek, “The People’s Republic of China Straight Baseline Claim,” IBRU

Boundary and Security Bulletin (Summer 1996), available at www.dur.ac.uk/ibru/publications/download/?id=92 (accessed 25 October 2010).

51. Ibid.52. China, “Preliminary Information Indicative of the Outer Limits of the Continental Shelf

Beyond 200 Nautical Miles of the People’s Republic of China,” 11 May 2009, available at the CLCSWeb site, supra note 2.

53. Ibid., at 5.

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54. Brunei, “Brunei Darussalam’s Preliminary Submission Concerning the Outer Limits of ItsContinental Shelf,” 12 May 2009, available at the CLCS Web site, supra note 2.

55. Ibid.56. “Joint Press Statement by Leaders on the Occasion of the Working Visit of YAB

Dato’ Seri Abdullah Haji Ahmad Badawi, Prime Minister of Malaysia to Brunei Darussalam on15–16 March 2009,” available at the Brunei Ministry of Foreign Affairs and Trade Web site,www.mofat.gov.bn/news/20090316a.htm (accessed 8 July 2010).

57. China, Note CML/17/2009, 7 May 2009, available on the website of the CLCS, supra note 2.58. China, Note CML/18/2009, 7 May 2009, available at the CLCS Web site, supra note 2.59. The Philippines, Note No. 000819, 4 August 2009, available at the CLCS Web site, supra

note 2.60. The Philippines, Note No. 000818, 4 August 2009, available on the website of the CLCS,

supra note 2.61. The Philippines, Note No. 000820, 4 August 2009, available at the CLCS Web site, supra

note 2.62. The Philippines, Note No. 000819, supra note 59.63. Tessa Jamandre, “RP Protests Claims over Kalayaan Islands Before UN,” 10 August 2009,

available at verafiles.org/main/focus/rp-protests-claims-over-kalayaan-islands-before-un/ (accessed28 October 2010).

64. The Philippines, Note No. 000818, supra note 60.65. The Philippines, Note No. 000819, supra note 59; Note No. 000818, supra note 60, at 2.66. Vietnam, Note No. 86/HC-2009, 8 May 2009, available at the CLCS Web site, supra note 2.67. Ibid.68. Vietnam, Note No. 77/HC-2011, 3 May 2011, available at the CLCS Web site, supra note 2.69. Malaysia, Note HA 24/09, 20 May 2009, available at the CLCS Web site, supra note 2.70. Ibid.71. Malaysia, Note No. 41/09, 21 August 2009, available at the CLCS Web site, supra note 2.72. Vietnam, Note No. 240/HC-2009, 18 August 2009, available at the CLCS Web site, supra

note 2.73. Malaysia, Note HA 24/09, supra note 69.74. See “Statement by the Chairman of the Commission on the Progress of Work in the Com-

mission,” CLCS/64, 1 October 2009, para. 92, available at the CLCS Web site, supra note 2.75. Ibid., para. 92.76. Ibid.77. For a more detailed overview of the claims, see Nguyen and Amer, supra note 43, at

306–309.78. UNCLOS 1982, supra note 1, Article 121(3), states that “rocks which cannot sustain

human habitation or economic life of their own shall not have an exclusive economic zone orcontinental shelf.” Unfortunately, UNCLOS 1982 is silent on the definition of “rocks.” There isa significant literature on this provision. See J. M. Van Dyke and D. L. Bennett, “Islands andthe Delimitation of Ocean Space in the South China Sea,” Ocean Yearbook 10 (1993): 54; JohnM. Van Dyke and Robert A. Brooks, “Uninhabited Islands: Their Impact on the Ownership ofthe Ocean’s Resources,” Ocean Development and International Law 12 (1983): 265; Jonathan I.Charney, “Note and Comment: Rocks that Cannot Sustain Human Habitation,” American Journal ofInternational Law 93 (1999): 872; Barbara Kwiatkowska and Alfred H. A. Soons, “Entitlement toMaritime Areas of Rocks Which Cannot Sustain Hamuan Habitation or Economic Life of Their Own,”Netherlands Yearbooks of International Law 21 (1999): 167; Robert Beckman and Clive Schofield,“Moving Beyond Disputes over Islands Sovereignty: ICJ Decision Sets Stage for Maritime BoundaryDelimitation in the Singapore Strait,” Ocean Development and International Law 40 (2009): 10;Barry Hart Dubner, “The Spratly ‘Rocks’ Dispute—A ‘Rockapelago’ Defies Norms of InternationalLaw,” Temple International and Comparative Law Journal 9 (1995): 304–305; and Alex G. OudeElferink, “The Islands in the South China Sea: How Does Their Presence Limit the Extent of the

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High Seas and the Area and the Maritime Zones of the Mainland Coasts?” Ocean Development andInternational Law 32 (2001): 174.

79. R. W. Smith, “Maritime Delimitation in the South China Sea: Potentiality and Challenges,”Ocean Development and International Law 41 (2010): 227.

80. Brunei, Preliminary Information, supra note 54.81. The Philippines, Republic Act No. 9522, An Act to Amend Certain Provisions of Republic

Act No. 3046, as Amended by Republic Act No. 5466, to Define the Archipelagic Baselines of thePhilippines, and for Other Purposes, approved 10 March 2009, available at the Philippine Law andJurisprudence Database Web site, www.lawphil.net/statutes/repacts/ra2009/ra 9522 2009.html.

82. For details, see Nguyen Hong Thao and Ramses Amer, “A New Legal Arrangement for theSouth China Sea?” Ocean Development and International Law 40 (2009): 340 and 347–348.

83. See Ellen Tordesillas, “Tempest in High Seas,” 13 March 2009, Malaya—The NationalNewspaper (Philippines), available at www.malaya.com.ph/mar13/edtorde.htm (accessed 26 October2010).

84. The Philippines, Note No. 000228, 5 April 2011, available at the CLCS Web site, supranote 2.

85. Ibid.86. China, Note CML/2/2009, 6 February 2009, available at the CLCS Web site, supra note 2.

See Japan, “Executive Summary—Submission to the Commission,” 19 November 2008, available atthe CLCS Web site, supra note 2.

87. China, Note CML/2/2009, supra note 86.88. China, “Note Verbale dated 21 May 2009 from the Permanent Mission of China

to the United Nations Addressed to the Secretary-General,” para. 4, available at daccess-dds-ny.un.org/doc/UNDOC/GEN/N09/346/61/PDF/N0934661.pdf (accessed 28 October 2010).

89. China, Note CML/17/2009, supra note 57; Note CML/18/2009, supra note 58.90. Smith, supra note 79, at 224.91. See Nguyen and Amer, supra note 82, at 336.92. Indonesia, Note No. 480/POL-703/VII/10, 8 July 2010, available at the CLCS Web site,

supra note 2.93. Robert Beckman, “Islands or Rocks? Evolving Dispute in the South China Sea,”

RSIS Commentaries, No. 75/2011 (10 May 2011), available at www.rsis.edu.sg/publications/Perspective/RSISO752011.pdf (accessed 11 May 2011).

94. China, Note CML/8/2011, 14 April 2011, available at the CLCS Web site, supra note 2,95. Ibid.96. China, “Preliminary Information,” supra note 52.97. The Joint Submission of Malaysia and Vietnam is ranked thirty-third and the submission

of Vietnam is ranked thirty-seventh in the chronological list of submissions. See the CLCS Web site,supra note 2.

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

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