The project for the delimitation of the continental shelf (DECOM) as provided in the UN Convention on the Law of the Sea (UNCLOS) initiated as far back as 1999 has at last been completed. The information on the limits of the continental shelf beyond 200 nautical miles was submitted by Sri Lanka on May 8, 2009 to the United Nations Commission on the Limits of the Continental Shelf (UNCLCS) in New York. Provision for this submission by Sri Lanka is in accordance with the Statement of Understanding adopted by the United Nations Conference on the Law of the Sea on August 29, 1980 contained in Annex 11 of the Final Act.
It is noted that UNCLOS entered into force for Sri Lanka on November 16, 1994. The submission was made in respect to a part of the area of three million square km of a submarine fan of sediments in the Bay of Bengal. This unique feature spans an area of 3,000 km in length and 830 – 1,430 km in width. The Bay of Bengal is bordered by Sri Lanka, India, Bangladesh, Myanmar, the Andaman - Nicobar Islands and Sumatra.
The DECOM project continued for over 10 years with a period of inactivity from 2000 to 2001. I wrote articles in the Sunday Times FT in 2006 and 2007, pointing out the various deficiencies and irregularities of this project. As far back as July 6, 2003, a Sunday newspaper carried an article titled ‘Make Merry Over the Continental Shelf’ which reported that a Sri Lankan expatriate was paid US$90,000 as fees for formulating the DECOM project. Certain high level officials were reported to have been aware of this payment and the Norwegian Embassy confirmed that the money was paid in Sri Lanka.
In my articles, I stated that the DECOM project was approved by the government in 2003 with a foreign component of US$6.14 million funded by Norway and local cost of Rs.557 million for three years. The contract for the 2D seismic survey to determine sediment thicknesses of over 1 km in the extended sea bed was awarded to a Norwegian company in 2005 but was cancelled.
The DECOM project was implemented by a director who had an office at the National Aquatic Resources Research and Development Agency (NARA). A technical committee and a high level committee were appointed to implement the project. However in early 2007, the above committees were dissolved and a High Level Committee of Experts (HLCE) was appointed by the President. In April 2007 GEMS of UK was awarded a contract for 6,300 km of 2D seismic lines to determine sediment thickness in the area off shore beyond 200 nautical miles. The total contract was US$3.72 million. Further an Opposition Parliamentarian in an article to a Sunday newspaper dated August 10, 2008 stated that this cost was escalated to US$7.2 million but it is left to the government to check on this figure.
It was also learnt that the Norwegian Petroleum Directorate (NPD) which was the implementing agency appointed the Sri Lankan expatriate who was paid to formulate the project in 2001 as the chief consultant and was a clear case of conflict of interest. Since there was a dispute between NPD and the HLCE, Norway pulled out of the project before it was completed. However in page 13 of the Executive Summary of the submissions to the UNCLCS there is no mention of NPD or the Sri Lankan expatriate consultant who was also the Chairman of Ocean Geo Consultants of Norway who formulated the DECOM project. The British company GEMS of UK which did the seismic survey and its interpretation is also omitted.
I shall now analyze the main issues related to the submission. The submission is based on interpretation of Annex 11 of the Statement of Understanding Concerning a Specific Method in Establishing the Outer Edge of the Continental Margin which recognizes the inequity that would result to that state having special geological and morphological characteristics. Accordingly the outer limits were established namely by straight lines not exceeding 60 nautical miles (M) in length connecting fixed points, defined by latitude and longitude at each of which the thickness of sedimentary rocks is not less than 1 km.
The survey established Point A south of Galle and there were 60 fixed points of less than 60 M culminating at Point B close to the Andaman – Nicobar Islands. The points constituted a crude semi circle around Sri Lanka except the West and North West seaboard. The total length of lines was 2238.1 M (nearly 3800 km - the contract was for 6300 km?). The detailed charts were also submitted with the Executive summary. Points A and B were arbitrarily fixed on 200 M on the Exclusive Economic Zone (EEZ) boundaries of Maldives/India and India/Myanmar respectively.
I would now like to point out the ambiguity contained in the Statement of Understanding. This statement is different from Article 76 of UNCLOS which is silent on the issue of applying special rules to establish the outer edge of the continental margin in the southern part of the Bay of Bengal. Should a state establish the outer edge of the continental margin by applying the special method, then the Statement provides for a neighbouring state to apply the same method on a common geological feature on a line.
The Statement for some reason is silent on the states concerned but it is understood to apply to Sri Lanka and India and to no other state. Further the continental shelf of a coastal state beyond the 200 M limit must be comprised of the submerged prolongation of the landmass of the coastal state but the Statement does not eliminate the requirement of natural prolongation. Accordingly Sri Lanka will not have a strong case to claim the continental margin beyond 200 M due to the absence of a natural prolongation.
After the partial submission of the claim on May 11, 2009, India reserved the right to a separate claim at a later date as a coastal state in the southern part of the Bay of Bengal notwithstanding the 10 year deadline. However Sri Lanka did not make use of this concession with the final submission on May 8, 2009. The international reports since June 2009 indicated that India’s claim in the Bay of Bengal may lead to disputes with Sri Lanka. The Indian officials have stated that Sri Lanka’s claims are ‘over ambitious.’ Indian officials have gone on record that ‘since the short distance of 24 nautical miles means that a separate understanding may have to be signed between the two countries’. It has also been revealed that the ‘disputed’ area is likely to stretch west of the Andaman - Nicobar Islands and extends to over 600,000 sq. km which is about half of what Sri Lanka has claimed.
The main reason why India is disputing this area is that it is known to contain large deposits of gas hydrates on the sea bed that contain methane, a major natural gas. In fact the present licensing round bids that have been called by India is for 18 exploration blocks covering 45,000 sq. km around the Andaman Islands off shore.
The submission by India to UNCLCS was a team effort where seven state agencies collected the relevant data for nine years with survey lines exceeding 30,000 km. Further India’s claim is in separate blocks where it can trade off blocks without many resources to those that contain significant hydrocarbons.
It is pertinent to mention that the DECOM project in Sri Lanka was implemented without active coordination with the concerned agencies and transparency. After submissions by Myanmar in December 2008 to the UNCLCS on the extension of the continental margin beyond 200 M, India and Sri Lanka submitted its observations to the UN Secretary General. India commented that ‘Myanmar has not provided any basis as to its entitlement to invoke the Statement of Understanding in Annex II of the Final Act of the UN Conference on the Law of the Sea. Without making any judgment on Myanmar’s interpretation and application of the Statement of Understanding, India considers that the said Statement is applicable only to Sri Lanka and India.’
Sri Lanka in its note to the Secretary General was more cautious and stated, ‘Sri Lanka further notes that the contents of the Executive Summary (Myanmar’s) do not enable Sri Lanka to make an informed judgment on Myanmar’s interpretation and application of the aforesaid Statement”….. Bangladesh too has informed the Secretary General about disputes over Myanmar’s maritime boundaries and claims of disputed islands. The Maldives informed the Secretary General that it is in the process of making its own submissions on the outer limits of the continental shelf and reserves the right to comment on the submissions made by Sri Lanka.
The consideration of the submission made by Sri Lanka was included in the provisional agenda of the twenty fourth session of UNCLCS held in New York from August 10 to September 11, 2009. However a formal presentation by Sri Lanka was differed to a later ession. The consideration of the partial submission made by India will be taken up by the UNCLCS at its 25th session from March to April 2010.
The major disadvantage Sri Lanka has in its claim on the extended continental shelf is the absence of the natural prolongation beyond the 200M EEZ and the absence of any major rivers that could bring large deposits of sediments. On the other hand India can claim that the Bengal Sea Fan is a common geological feature with sediments from the Ganges to Brahmaputra catchment area and from rivers along the eastern coast of India. The other issue is why the Statement of Understanding applies only to Sri Lanka and India and the scientific reasoning for eliminating other countries bordering the Bay of Bengal.
The Attorney General of Sri Lanka has to formally present our case for the extended continental shelf to UNCLCS. The Indian authorities have indicated that it is open to bilateral negotiations to resolve any dispute. It must be stressed that India made its submissions after carefully assessing the hydrocarbon and mineral potential of the sea bed. Sri Lanka had not even attempted such an approach and lacked the foresight to compile an inventory of possible resources.
From the statements made by Indian authorities it is evident that even the three maritime agreements negotiated during the 1970’s may be renegotiated in the light of new developments related to the continental shelf even in the north west of Sri Lanka.
There is provision for new submissions if Sri Lanka is not satisfied with the recommendations of the UNCLCS.
This would entail further surveys that would incur additional costs. It must be stressed that the legal and technical interface is complex in the case of the Bengal Fan and the technological and legal uncertainties involved in an extended continental shelf claim are inexorably intertwined.The question now remains about what Sri Lanka’s stand is on the submission to UNCLCS and what our experts have to say.
Are we back to square one on this widely publicized claim of our extended continental margin? Over to the technical and legal experts who were involved in this project since 1999 for the answers.
(The author is a retired Economic Affairs Officer of United Nations ESCAP and can be contacted on
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