Sunday Times 2
An invaluable case study of maritime boundary issues of a developing littoral State
View(s):This is the second part of
Dr. Rohan Perera’s review of Nirmala Chandrahasan’s book “Maritime Boundaries in the Indian Ocean:Sri Lanka and the law of the Sea”, a book that is of interest not only to Sri Lanka but also to all Indian Ocean littoral states, especially India which shares a common maritime boundary with Sri Lanka. The first part of the review appeared last week.
Chapter IV – Continental Shelf
The author’s treatment of the Continental Shelf Regime in Ch.IV provides a useful insight concerning a regime of vital importance to Sri Lanka’s interest in securing an extended Continental Shelf with all the economic advantages that such a Zone would bring to Sri Lanka in the future. The fact that it concerns a Zone, the outer limits of which is yet to be determined, in terms of the new Law of the Sea, makes the chapter, one of extreme topicality and relevance.
The author traces the genesis of the concept from the historic Truman Proclamation of 1945.The significant role played by technological and economic factors in the evolution of rules of International Law relating to the Continental Shelf regime, which opened up for exercise of jurisdiction and resource exploitation by coastal States, new areas of territory with vast economic potential, is given particular emphasis by the Author.
As for the juridical basis of the concept, the author draws from the reasoning of the ICJ in the well-known North Sea Continental Shelf Cases (1969) which stressed that States had an inherent right to such territory on the basis of natural prolongation. The geological unity of the Coastal State landmass with the sea-bed was the factor which conferred upon the Coastal State the right to the areas of the sea-bed.
Sri Lanka has made significant gains under the Law of the Sea Convention
On the issue of the maximum limits that could be claimed in Continental Shelf demarcation, the author refers to the uncertainty created by ‘exploitability test’ set out in the 1958 Geneva Convention on the Law of the Sea, and then makes reference to the new concept which emerged in the 1970s, that the sea-bed beyond national jurisdiction was the ‘common heritage of mankind’ as enunciated in the 1970 Declaration on Principles governing the International Sea-Bed.
The author points to a conflict that had arisen between extensive claims based on the ‘exploitability test’ and the Common Heritage Doctrine, and quotes Judge Oda of the ICJ to the following effect.
“….in the sea-bed areas of the vast oceans of the world, when the concept of the Continental Shelf had been the only applicable regime, the new concept of the common heritage of mankind had arisen to create a halt to the indefinite expansion of the Continental Shelf, in order to preserve the international sea-bed beyond it”
This reasoning of Judge Oda, sets the backdrop to the author’s extensive treatment of the new criteria for the determination of the outer limits of the Continental Shelf, set out in Article 76 of the 1982 Law of the Sea Convention. Article 76 provides a more concrete and certain basis for the determination of the outer edge of the Continental Margin based on distance and sedimentary thickness criteria. Accordingly, a coastal State would be entitled to a Continental Shelf up to a distance of 200 n.m (to be co-extensive with the EEZ) and whenever the margin extends beyond 200 n.m. to an extended margin, based on satisfaction of the distance/sedimentary thickness criteria in Art.76 with a cut off limit of 350 n.m. imposed as the maximum distance.
The author has engaged in an informative and useful analysis of the case made out by Sri Lanka at UNCLOS III, for a special method of determining the outer limit of the Continental Shelf in the Southern Part of the Bay of Bengal, notwithstanding the constraints imposed by Article 76.The Sri Lanka proposal was premised on the special geological and geomorphological features found in Sri Lanka’s Continental Shelf in this area.
Tracing the history behind Article 76, the author recalls that the formula known as the ‘Irish Formula’ on which the criteria was based, applied essentially to an Atlantic type of continental margin. The Irish Formula was advantageous to its proponents such as the UK and Ireland, as the formula secured for them a greater part of their margin, which had high economic potential, while excluding areas which had less potential.
On the other hand, as the author points out, the continental shelf around the Sri Lanka coastline is very narrow, nevertheless there is a very long rise in the eastern and south eastern sectors in the Bay of Bengal Submarine Fan, with the greater accumulation of sediment present in this area.
The author explains that the Sri Lankan negotiators at UNCLOS III were able to successfully demonstrate that a mechanical application of the Irish Formula, despite the special features of its continental shelf, would result in Sri Lanka having to concede areas nearly five times in excess of the ‘minimum economic thickness’. This would in effect mean an estimated loss of 50% of Sri Lanka’s land area, thus leading to an inequitable result.
The author then proceeds to make a close analysis of the Statement of Understanding (SOU) (annexed to the Convention and an integral part of it) in order to accommodate Sri Lanka ‘s case . With reference to the qualifying criteria required to come within the scope of the SOU, the author points to the fact that although unnamed, it is only Sri Lanka and India situated in the southern part of the Bay of Bengal, that could satisfy the criteria set out in the SOU, given the special geological and geomorphological features of their continental shelf.
The author concludes that “the accommodation made in favour of Sri Lanka underscores the concerns of UNCLOS III for developing nations and the equitable principles which have governed the Convention”. The author stresses the fact that the vast accretion of territory in terms of the SOU that Sri Lanka may hope to gain through the special method of delimitation (notwithstanding the constraints imposed by Article 76) would be “the most significant gain Sri Lanka acquired under the Convention.”
From the perspective of continental shelf boundary delimitation, the author engages in an extremely useful analysis of the jurisprudence that has emerged through judgments of the ICJ and the International Tribunal on the Law of the Sea (ITLOS) from the North Sea Continental Shelf cases to the recent Bangladesh-Mynmar dispute. In the course of this analysis, the author brings to surface the varied legal principles that have emerged and the varying degree of importance attached to these principles at different times in the context of new developments.
While the natural prolongation theory had enjoyed wide acceptance in continental shelf delimitation, the author observes a change of emphasis with the ICJ judgment in the Tunisia-Libya Continental Shelf case, where the Court stated that natural prolongation was not the only criterion, but that continental shelf delimitation must be governed by International Law criteria, other than those taken from physical features. The principle of ‘equitable apportionment was given particular emphasis by the Court. This, the author views, as a ‘theoretical shift’ on the part of the Court.
The author surmises that this shift could perhaps been influenced by the ‘arbitrary distance criteria’ introduced in Article 76 wherein each Coastal State is entitled to a shelf of a minimum distance of 200 n.m. and a maximum of 350 n.m. As further confirmation of this shift, the author also refers to the recent Mynmar-Bangladesh Continental Shelf case before ITLOS, where the Tribunal observed that the natural prolongation concept was “not an independent source of entitlement” and that principles of delimitation must be interpreted in accordance with Article 76 of the LOS Convention.
The importance of this jurisprudence to Sri Lanka in its determination of outer limits and delimitation of the continental shelf is underlined by the author in her observation that various factors and criteria followed by the courts are “guidelines for the future” and that both Sri Lanka and India will need to turn to these guidelines reflected in case law for assistance in reaching an accommodation on any overlapping claims with regard to the limits of their respective Continental Shelf in the Bay of Bengal.
The overall message that the author seeks to convey through this book is that cooperation rather than competition for ocean resources is the way forward and cites the evolving jurisprudence and the general readiness of States to submit maritime boundary disputes for judicial settlement (although in recent times disputes in South China Seas constitutes perhaps an exception to this overall trend) as evidence of the growing confidence on the part of States in the dispute settlement procedures under the LOS Convention rather than resort to the ‘Gun-boat diplomacy’ of the past.
‘Maritime Boundaries in the Indian Ocean: Sri Lanka and the Law of the Sea’ by Dr. Nirmala Chandrahasan, is an invaluable case study of maritime boundary issues of a developing coastal State in the Indian Ocean, set against the backdrop of sweeping changes in the classical regime governing the oceans, that were taking place in UNCLOS III. It would be of considerable interest and of practical relevance to the student, teacher and practitioner alike. It is a timely publication and acquires particular significance in the context of Sri Lanka’s submission to the Commission on the Limits of the Continental Shelf, and pending Continental Shelf Boundary delimitation negotiations between Sri Lanka and India.
(Dr. Rohan Perera is former Legal Adviser, Ministry of Foreign Affairs, Member International Law Commission (2007-2011), Visiting Lecturer in International Law, Department of Law, University of Peradeniya)
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-”Maritime Boundaries in the Indian Ocean: Sri Lanka and the law of the Sea” |