This article was downloaded by: [University of Tennessee, Knoxville] On: 20 December 2014, At: 18:35 Publisher: Taylor & Francis Informa Ltd Registered in England and Wales Registered Number: 1072954 Registered office: Mortimer House, 37-41 Mortimer Street, London W1T 3JH, UK Ocean Development & International Law Publication details, including instructions for authors and subscription information: http://www.tandfonline.com/loi/uodl20 Coastal States in the South China Sea and Submissions on the Outer Limits of the Continental Shelf a Nguyen Hong Thao & Ramses Amer a b Faculty of Law , Vietnam National University , Hanoi, Vietnam b Department of Oriental Languages , Stockholm University , Stockholm, Sweden Published online: 05 Aug 2011 To cite this article: Nguyen Hong Thao & Ramses Amer (2011) Coastal States in the South China Sea and Submissions on the Outer Limits of the Continental Shelf, Ocean Development & International Law, 42:3, 245-263, DOI: 10.1080/00908320.2011.592473 To link 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impact on legal and political developments in the South China Sea In accordance with the United Nations Convention on the Law of the Sea of 1982 and the guidelines of the Commission on the Limits of the Continental Shelf, coastal states are to establish the outer limits of their continental shelf where it extends beyond 200 nautical miles Meeting this obligation is complicated in enclosed or semienclosed seas where there are maritime disputes such as 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 continental shelf beyond 200 nautical miles made by the coastal states of the South China Sea and the potential impact of the submissions on the legal and political situation in the South China 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 obligated to 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, October 25–27, 2010 Address correspondence to Professor Nguyen Hong Thao, Faculty of Law, Vietnam National University, Hanoi, Vietnam E-mail: nguyenhongthao57@gmail.com and Ramses Amer, Senior Research Fellow, Department of Oriental Languages, Stockholm University, Guest Research Professor, National Institute for South China Sea Studies, Haikou, and Research Associate, Swedish Institute of International Affairs, Stockholm, Sweden E-mail: ramses.amer@orient.su.se 245 246 N H Thao and R Amer Downloaded by [University of Tennessee, Knoxville] at 18:35 20 December 2014 for the purpose of establishing the outer limit of their shelf area The implementation of this obligation is complicated in enclosed or semienclosed seas where there are maritime disputes such as in the South China Sea According to UNCLOS 1982, coastal states must meet a double requirement: fulfill the obligation of making submissions on the outer limit of the continental shelf and so without prejudice to the rights (and interests) of the regional community and other neighboring states The best option is cooperation and mutual understanding between regional coastal states based on a correct and objective interpretation of UNCLOS 1982 as well as the Scientific and Technical Guidelines of the CLCS.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 coastal state has the right to have a 12-nautical-mile territorial sea, a 200-nautical-mile exclusive economic zone (EEZ), and an adjacent continental shelf The latter comprises the sea-bed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of 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 200 nautical miles Depending on the natural characteristics of its continental margin, some coastal states may have the right to a continental shelf that extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured The outer 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 of sedimentary rocks is at least per cent of the shortest distance from such point to the foot of the continental slope; or (ii) a line of the outermost fixed points not more than 60 nautical miles from the foot of the continental slope In either case, the line of the outermost fixed points is not to exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured or 100 nautical miles 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 miles from the baselines from which the breadth of the territorial sea is measured shall be submitted by the coastal State to the Commission on the Limits of the Continental Shelf set up under Annex II on the basis of equitable geographic representation The Commission shall make recommendations to coastal States on matters related to the establishment of the outer limits of their continental shelf The limits of the shelf established on the basis of these recommendations shall be final and binding Downloaded by [University of Tennessee, Knoxville] at 18:35 20 December 2014 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 200 nautical miles; the rights and obligations of states parties and non-states parties of UNCLOS 1982 concerning submissions to the CLCS; the criteria for the establishment of the outer limit 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 different way compared with other maritime zones, such as the territorial sea and the EEZ, because delineation does not depend exclusively on the distance factor Nevertheless, from a legal point of view, there is no difference between the continental shelf out to 200 nautical miles and the extended continental shelf beyond 200 nautical miles The legal continental shelf of a 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 derived from the 1945 Truman Proclamation on the Continental Shelf through which the United States claimed competence over hydrocarbon activity within its continental shelf7 and from the International Court of Justice in the North Sea Continental Shelf Cases in 1969,8 and is affirmed by state practice.9 Moreover, a coastal state’s right to its adjacent continental shelf was 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 their continental shelf based on natural prolongation.11 However, the non-states parties not need to strictly follow the procedural obligation to submit their outer limit of the continental shelf beyond 200 nautical miles to the CLCS According to Annex II, Article 4, of UNCLOS 1982, the timeline for the submission to the CLCS was to be within 10 years of the entry into force of the Convention for coastal states parties However, the timeline was modified and fixed at 13 May 2009 through a decision on 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 allows coastal states, in particular developing countries, including small island developing states that face a lack of financial and technical resources and relevant capacity and expertise or other similar constraints, to meet the 2009 timeline by submitting preliminary information indicative of the outer limits of the continental shelf beyond 200 nautical miles.13 The preliminary information is not to be acted on by the CLCS and is without prejudice to a subsequent full submission This raises the question about whether coastal states that did not make either a submission or a preliminary information indication by the 2009 deadline would lose their rights over the extended continental shelf beyond 200 nautical miles The answer is no since there is an inherent right of the coastal state over the natural prolongation of its continental shelf.14 By meeting the time requirement for submissions, coastal states have shown their determination to fulfill the UNCLOS 1982 obligation Up to 13 May 2009, 51 submissions and 45 preliminary information indications were submitted Four subsequent submissions have been received from Mozambique, Maldives, Denmark, and Bangladesh.15 The submissions contribute to the creation of a more full picture of the outer limits of the continental shelves for coastal states as well as the limits of the international seabed area The further that the outer limits of continental shelves are into the sea, the narrower the international seabed area where mineral resources are within the jurisdiction of the International Seabed Authority (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 seabed area and the extended continental shelf beyond 200 nautical miles.17 The function of the CLCS is threefold; first, to consider the data and other material submitted by coastal states concerning the outer limits of the continental shelf in areas 248 N H Thao and R Amer Downloaded by [University of Tennessee, Knoxville] at 18:35 20 December 2014 where those limits extend beyond 200 nautical miles; second, to make recommendations to the coastal states in accordance with Article 76; and, third, to provide scientific and technical advice, if requested by a coastal state, during the preparation of the data referred to in the submission process.18 Article of Annex II to UNCLOS 1982 provides that “the actions of the Commission shall not prejudice matters relating to delimitation of boundaries between States with opposite or adjacent coasts.” Thus, it can be understood that the CLCS –has no function in supporting the position of any party, imposing or influencing negotiations on the continental shelf boundary delimitation between States with overlapping claims over their extended shelf; –is not to be involved in any matters regarding the determination of the outer limits of a coastal State’s extended shelf in cases of unresolved land or maritime disputes.19 Disputes on the delimitation of the continental shelf between states with opposite or adjacent coastlines, or other cases of unresolved maritime disputes or over insular formations, not prevent the coastal states from making submissions to the CLCS.20 Submissions may be made and may be considered in accordance with Annex of the Rules of Procedure of the CLCS The coastal state making a submission is required to inform the CLCS of a dispute and to ensure, to the extent possible, that the submission will not prejudice matters relating to the delimitation of boundaries or maritime disputes between states If a submitting state fails to comply with the above obligation to inform, the CLCS must be informed of a dispute by other states; otherwise, based on paragraph of Annex I of the Rules of Procedure, the CLCS will have no reason to take into account a dispute situation in its process The Rules of Procedure of the CLCS encourage submitting states, before making a submission, to obtain the prior consent of other states that might potentially be involved When the CLCS receives the consent of all states that are parties to a dispute involved in a submission, the CLCS is able to consider that portion of the submission covered by the consent.21 To facilitate the work 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 area of dispute22 or it can make a joint submission with the other claimant Thus, in the CLCS process, there are not only submitting states, but there can also be other states interested in the submission Paragraph 5(a) of Annex I of the Rules of Procedure of the CLCS directs that, in cases “where a land or maritime dispute exists, the CLCS shall not consider and qualify a Submission made by any of the States concerned in the dispute.” Thus, there are situations 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 situation with 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 directly party to a dispute but that may have an interest in a dispute Arguably, the wording also extends to states concerned, not only with an ongoing dispute, but also with a situation that may lead to a dispute in the future.23 The deadline for receiving an intervention by third parties is set at months from the date of the publication by the UN secretary-general of the executive summary of the submission.24 The capacity for intervention pursuant to paragraph 5(a) is ensured not only for the states parties to UNCLOS 1982, but also to non-states parties having interests in a dispute and accepting UNCLOS 1982 as a source of the law of the sea Downloaded by [University of Tennessee, Knoxville] at 18:35 20 December 2014 The South China Sea and Outer Continental Shelf Submissions 249 It should be noted that coastal states have the full freedom to determinate their outer limit of the continental shelf The CLCS can make recommendations and other states may protest 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 the CLCS to impose the limit for safeguarding the interests of the world community relating to the natural resources within the area under the jurisdiction of the ISA The function of the CLCS is to consider the technical and scientific data submitted by coastal states to meet the requirement of the formula to determine the outer limit of the continental shelf beyond 200 nautical 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 close and 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 on the one hand, and the interests of the world community on the other hand As set out in Article 76, paragraph 8, and in Article of Annex II of UNCLOS 1982, the process of defining the outer limit of the extended continental shelf encompasses several phases In the first phase, a coastal state conducts scientific surveys and collects data to assess where it intends to establish—in accordance with Article 76 and the Guidelines of the CLCS—the outer limits of its continental shelf beyond 200 nautical miles The decision to make a submission to the CLCS is made by the coastal state by taking into account the collected geodetic data The decision to make a submission is limited by the obligation of the coastal state to not affect the rights of others, including the interests of world community and other concerned states As already noted, a submitting state is to inform the CLCS of existing maritime disputes or disputes over insular formations in the area of submission and must ensure, to the extent possible, that the submission will not prejudice matters relating to the delimitation of boundaries between states However, it is not easy to define those rights due to the different interpretations by concerned states of the relevant provisions of UNCLOS 1982 and, more generally, of the law of the sea In the second phase, the CLCS considers the submission The received information is verified by the CLCS under its Rules of Procedure and Scientific and Technical Guidelines Submissions are viewed by a subcommission composed of seven members, unless the CLCS decides otherwise A submitting coastal state may send representatives to participate in the relevant proceedings.26 At the end of the second phase, the subcommission is required to submit its recommendation to the CLCS The recommendations approved by the CLCS are delivered in writing to the coastal state that made the submission The CLCS is not a juridical body and has no right to accept or reject objections If the recommendations of the CLCS are accepted by a submitting state, the third phase takes place However, in the case of disagreement by a coastal state with the recommendations of the CLCS, the coastal state is obligated, within a reasonable time, to make a revised or new submission to the CLCS.27 In this third phase, the coastal state and the CLCS are expected to cooperate in order to reach accord The third phase can be prolonged The so-called ping-pong process28—submission, recommendation, resubmission, re-recommendation—continues until the achievement of the mutual accord between the submitting state and the CLCS The fourth phase is the procedure by which the coastal state is to establish the outer limits of its continental shelf in conformity with the provisions of Article 76, paragraph 8, and in accordance with the appropriate national procedures.29 At the fourth stage, after setting the outer limit of the Continental Shelf approved by CLCS, the coastal state has an obligation to deposit the relevant data and map showing their limit of the continental shelf with the Secretary-General of the United Nations.30 Downloaded by [University of Tennessee, Knoxville] at 18:35 20 December 2014 250 N H Thao and R Amer A major obstacle for the establishment of the outer limit of the continental shelf is the 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 the CLCS to its work leading to recommendations can be illustrated by the following On 31 March 2009, the CLCS gave its recommendation on the submission of Mexico with respect to the western polygon in the Gulf of Mexico32 and, on 15 April 2010, the CLCS gave its two latest recommendations—one on the submission by Barbados33 and the other on the submission by the United Kingdom with respect to Ascension Island.34 With the current rate of submissions being completed each year, it will take until beyond 2040 before the CLCS can verify and give recommendations for the 55 submissions currently before the CLCS.35 In addition to the full submissions, 45 preliminary information indications have been 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 with respect to the issues of the outer limit of the continental shelf Indonesia, Malaysia, the Philippines, and Vietnam have made submissions to the CLCS relating to their extended continental shelves Brunei and China have submitted to the CLCS preliminary information indicative of the outer limits of the continental shelf Indonesia Indonesia declared itself an archipelagic state in 1957 by the Presidential Declaration of 13 December 1957 Using the doctrine of archipelagic states, Indonesia drew its archipelagic baselines 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 Conference on the Law of the Sea (UNCLOS III) and Indonesia was one of the first states in Southeast Asia 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 shelf have been collected and analyzed through surveys such as the Digital Marine Resource Mapping (DMRM) Project 1996–1999, the Global Bathymetric Data ETOPO2, the Ocean Drilling Program (ODP), the Deep Sea Drilling Project (DSDP), and seismic reflection profiles archived as part of the Intergovernmental Oceanographic Commission’s Geological/Geophysical Atlas of the Pacific (GPAPA) Project.38 On 16 June 2008, Indonesia made a submission to the CLCS relating to the continental shelf off northwest of Sumatra Island.39 The outer limit of the continental shelf in the area off northwest of Sumatra—under this partial submission—has been determined using the 1% sediment thickness formula with respect to the shortest distance to the foot of slope Accordingly, five fixed points have been established, which combined with the 200-nautical-mile limit, form the outer limit of the extended continental shelf in the area to the northwest of Sumatra This area is not the subject of any dispute with another state In its submission, Indonesia reserved the right to make submissions with respect to the outer limits of its extended continental shelf in other areas in the future.40 The South China Sea and Outer Continental Shelf Submissions 251 Downloaded by [University of Tennessee, Knoxville] at 18:35 20 December 2014 The Philippines The Philippines signed UNCLOS 1982 in that year and ratified the Convention in 1984 On April 2009, a partial submission of extended continental shelf in the Benham Rise region was made by the Philippines to the CLCS.41 The area covered in the submission to the north and east of the West Philippine Basin and to the west and south of the Luzon, where there is no state with an opposite and adjacent coast to the Philippines The outer edge of the continental margin in the Benham Rise region was determined by the application of Article 76, paragraph 4(a)(i) There are 253 points marking the proposed outer limit The hydrographic 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 of continental shelf beyond 200-n miles in the future, in conformity with the provisions of Annex 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 ratified the Convention in 1996 and Vietnam ratified in 1994 Malaysia publicized the extent of its territorial sea and continental shelf out to 200 nautical miles through two maps in December 1979.43 Vietnam proclaimed its baselines in May 1977.44 Both countries have determined that they have areas of continental shelf in the southern part of the South China Sea that extends beyond 200 nautical miles On May 2009, Malaysia and Vietnam made a joint submission to the CLCS relating to a “defined area” in the south of the South China Sea.45 The area is generated and bound by the intersection point of the envelope of arcs of the 200-nautical-mile limits of Malaysia and the Philippines in the east (Point A), the intersection of two converging envelopes of the arcs of Malaysia 200-nautical-mile limit toward the southwest of the Point A (Points B and C), by the boundary line under the 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 shelf signed by Vietnam and Indonesia in 200347 toward the northwest (Points F and G) and the intersection point of the envelope of arcs of Vietnam’s 200-nautical-mile limit toward the northeast (Points H and I) (see Figure 1) The “defined area” is beyond 200 nautical miles from the baselines of land territories of both Malaysia and Vietnam and outside of the agreed limits of continental shelves with other concerned countries Both countries have affirmed that the joint submission would not prejudice matters relating to the delimitation of boundaries between states with opposite or adjacent coasts.48 Vietnam Partial Submission On May 2009, Vietnam made a partial submission relating to the North Area which is located in the northwest of the South China Sea.49 The delineated outer limit of the extended continental shelf is defined and bound in the north by an equidistance line between the territorial sea baselines of Vietnam and the territorial sea baselines of China and in the west by the 200-nautical-mile limit from Vietnam Vietnam has delineated the outer limits of its extended continental shelf in the North Area by application of both the 1% sediment thickness formula and the foot of the slope +60-nautical-miles formula The submission by Vietnam was prepared using datasets acquired by dedicated surveys in 2007 and 2008 as well as datasets from the public domain including bathymetry, magnetic, gravity, and seismic data (see Figure 2) Vietnam is of the view that the area of extended continental shelf in the submission is not subject to a dispute and, furthermore, that its submission is Downloaded by [University of Tennessee, Knoxville] at 18:35 20 December 2014 252 N H Thao and R Amer Figure Map of the Vietnam-Malaysia joint submission without prejudice to the maritime delimitation between Vietnam and other relevant coastal states Preliminary Information China China signed UNCLOS 1982 in that year and ratified in 1996 On the same day as ratification, China’s baselines were proclaimed.50 The archipelagic baselines applied to the Paracel 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 its continental shelf to the CLCS.52 The preliminary survey relates to an extended continental shelf area beyond 200 nautical miles to the western slope of the Okinawa Trough in the East China Sea In its preliminary information, China stated that it reserves the right to make Downloaded by [University of Tennessee, Knoxville] at 18:35 20 December 2014 The South China Sea and Outer Continental Shelf Submissions 253 Figure Map of the Vietnamese individual submission (VNM-N) outer continental shelf submissions relating to areas in the East China Sea and elsewhere in 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 its preliminary information submission, Brunei indicated that it had made significant progress in preparation of a full submission to the CLCS.54 Brunei has researched and analyzed significant amounts of data relating to its continental shelf This includes extensive morphological, geological, geophysical, and tectonic data However, Brunei indicated it would provide the full submission to the CLCS at a later date When Brunei makes its full submission to the CLCS, it is expected to show that there is a continuous natural prolongation from the 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 ocean floor of the South China Sea Basin Thus, Brunei’s full submission to the CLCS will show that the edge of the continental margin, lying at the transition between the Spratly Islands area and the deep ocean floor of the South China Sea, is situated beyond 200 nautical miles from the baselines from which Brunei’s territorial sea is measured.55 Downloaded by [University of Tennessee, Knoxville] at 18:35 20 December 2014 254 N H Thao and R Amer It is interesting to note that, months before 13 May 2009, Brunei and Malaysia released a joint press statement on the occasion of the working visit to Brunei Darussalam made by Abdullah Ahmad Badawi, prime minister of Malaysia, on 15–16 March 2009 The statement contained information about an agreement on the final delimitation of maritime boundaries and modalities for the final demarcation of the land boundary between Brunei Darussalam 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 does not prejudice the rights of Brunei Furthermore, Brunei did not clarify how the status of the Spratly Islands area may affect the extension of the continental shelf when claiming natural prolongation from the territory of Brunei Objections China On May 2009, China sent two Notes to the secretary-general of the United Nations requesting 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 nine dotted 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 under Chinese jurisdiction Thus, China considers that the joint submission made by Malaysia and Vietnam and the partial submission made by Vietnam infringe on its sovereignty, sovereign rights, and jurisdiction in the South China Sea The Philippines The Philippines has delivered Notes with respect to three submissions: the joint submission of Malaysia and Vietnam;59 Vietnam’s partial submission,60 and the submission made by Palau.61 The Philippines Note with respect to the joint submission by Malaysia and Vietnam stated that [the] Joint Submission for the Extended Continental Shelf by Malaysia and Vietnam lays claim on areas that are disputed not only because they overlap with that of the Philippines, but also because of the controversy arising from the territorial 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 be understood that the southern part of the Philippine claim in the Spratly archipelago overlaps with the defined area under the joint submission made by Malaysia and Vietnam.63 Another issue raised in the Note is the territorial dispute between the Philippines and Malaysia over North Borneo (i.e., the state of Sabah) The Philippines Note with respect to Vietnam’s partial submission states that the area covered 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 a possible continental shelf claim by the Philippines from Scarborough Shoal The South China Sea and Outer Continental Shelf Submissions 255 In both of the above Notes, the Philippines requested that the CLCS refrain from considering the aforementioned submissions “unless and until after the parties have discussed and resolved their disputes.”65 Downloaded by [University of Tennessee, Knoxville] at 18:35 20 December 2014 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 Spratly archipelagoes (Hoang Sa and Truong Sa in Vietnam) are part of Vietnam’s territory and that Vietnam “has indisputable sovereignty over these archipelagoes.”67 This position was reiterated in Note 77/HC-2011 of May 2011 sent by Vietnam to the secretary-general of the United Nations.68 In its response to the Chinese Note, Malaysia argued that the joint submission of Malaysia and Vietnam constitute [sic] legitimate undertakings in implementation of the obligations of State 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 the Rules 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 question of delimitation of the continental shelf between states with opposite or adjacent coast According to Malaysia, the joint submission was also made without prejudice to the positions of states that are parties to the land or maritime disputes in the South China Sea Malaysia noted 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 over Sabah71 and Vietnam reaffirmed its position that it has indisputable sovereignty over the 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 possibility of joining in the joint submission.73 During the twenty-fourth session of the CLCS in August 2009, Vietnam and Malaysia reaffirmed their positions.74 They emphasized that the joint submission was without prejudice to the question of delimitation between states and that paragraph (a) of Annex I of the Rules of Procedure should not be invoked Both countries seem to share the position that such claims have no basis under international law and cannot be qualified as disputes in the sense of paragraph 5(a) The CLCS decided to defer further consideration of the joint submission and the Notes Verbale until such time as the submission is next in line for consideration as queued in the order in which it was received.75 The CLCS made this decision in order to take into consideration any further developments that might occur throughout the intervening period.76 Perspective After May 2009 Like all members of UNCLOS 1982, the coastal states bordering the South China Sea have an obligation to implement Article 76 They have the right to interpret and apply it to identify the outer limit of their continental shelf beyond 200 nautical miles However, the extension of the continental shelf beyond 200 nautical miles in the South China Sea is not simple There exist sovereignty disputes over the two strategically important Downloaded by [University of Tennessee, Knoxville] at 18:35 20 December 2014 256 N H Thao and R Amer archipelagoes–the Paracels and the Spratlys.77 Other disputes relate to claims over waters and maritime areas surrounding these insular formations Obviously, the status of an insular formation as an island or rock and the related maritime delimitation issues constitute obstacles 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 In the context of the South China Sea, one observer has noted that many law of the sea experts would argue that most, if not all, of the insular formations in the South China Sea should be considered as rocks pursuant to Article 121(3) and thus would not be able to generate full maritime zones.79 The status of insular formations in the South China Sea directly affects the extension of the continental shelf beyond 200 nautical miles Presuming that the insular formations in the South China Sea cannot generate a continental shelf, there is the possibility of an extension of the continental shelf from the mainland beyond 200 nautical miles The number of submissions to the CLCS would increase and the CLCS could consider them without protest from other states If the insular formations in the South China Sea are islands under UNCLOS 1982, then the continental shelves from the insular formations would overlap with the continental shelves extended from the mainland Before 13 May 2009, all concerned countries in the South China Sea had revealed their attitudes toward the issue of fixing the outer limit of extended continental shelf beyond 200 nautical miles in different ways Moreover, the attitudes of the various states with interest in the South China Sea with respect to the status of insular formations in it are on display in their various submissions, preliminary information, and their Notes Indonesia and the Philippines have made submissions to the CLCS relating to areas outside the South China Sea; their submissions, therefore, not clarify their attitudes on the issue of the status of insular formations in the South China Sea In its objections to the joint submission of Malaysia and Vietnam and to the individual submission of Vietnam, the Philippines displayed its willingness to participate in discussions and seek a resolution of its disputes with Malaysia and Vietnam If an agreement could be reached, then the Philippines could either submit unilaterally or jointly with the country concerned Vietnam and Malaysia pursued the policy of separating the submission of outer limit of extended continental shelf beyond 200 nautical miles from the sovereignty disputes over insular formations They claim the extended continental shelf from their mainland territories The Paracel and Spratly archipelagoes, subjects of sovereignty claims in the South China Sea, were not mentioned as basepoints Both states are clearly of the view that the disputed insular formations remain subject to negotiations According to the preliminary information provided to the CLCS, Brunei’s submission will be based on the continuous natural prolongation of the adjacent shelf from the territory of Brunei extending across the Spratly Islands area to the edge of the deep ocean floor of the South China Sea Basin.80 Brunei seems to share the same view on the continental shelf as Vietnam and Malaysia in detaching the shelf issues from insular formation sovereignty questions The status of insular formations was debated in the Congress of the Philippines and in the media in connection with the passage of House Bill 3216 on February 2009 concerning the archipelagic baselines as well as during the process leading to passage of the 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 and other countries to the west of the Philippines China and Vietnam issued protests against Philippine House Bill 3216.82 It has been reported that Indonesia protested against the Downloaded by [University of Tennessee, Knoxville] at 18:35 20 December 2014 The South China Sea and Outer Continental Shelf Submissions 257 inclusion of Palmas Island located 47 nautical miles east-northeast of the Saranggani Islands off Mindanao in the Philippines.83 If the KIG and Scarborough Shoal had been included in the archipelagic baselines, all the outermost insular formations in the KIG and Scarborough Shoal would have been basepoints from which the continental shelf could be measured Through the 2009 Archipelagic Baseline Law, this situation was avoided but, by establishing that KIG and Scarborough Shoal were “a regime of islands under the Republic of the Philippines,” some uncertainty remains The Philippine objections to the Joint Submission of Malaysia and Vietnam and the individual submission by Vietnam seem to be based on the country’s deliberations on the “regime of islands” and whether or not they can generate their own continental shelves or only territorial seas This position is further clarified in a Note of April 2011 sent by the Philippines to the to the secretarygeneral of the United Nations in response to China’s May 2009 Notes with the attached maps displaying the nine dotted lines.84 In this Note, the Philippines stated that “under the international law principle of ‘la terre domaine la mer’ , the extent of the waters that are adjacent’ to the relevant geographical features are definite and determinable under UNCLOS, 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 is unclear In February 2009, China questioned Japan’s inclusion of an insular formation in its 2008 submission to the CLCS.86 Japan used Okinotorishima as a basepoint for three areas where Japan claimed an extended continental shelf beyond 200 nautical miles According to China, the feature is a rock and China claims that it is entitled to only a 12-nauticalmile territorial sea.87 At the Nineteenth Meeting of the SPLOS held in June 2009, China presented 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 no exclusive economic zone or continental shelf.”88 However, this position by China may not be consistent with the one taken in relation to the South China Sea In the Notes of May 2009 objecting to the joint submission of 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 seabed and subsoil.”89 As already noted, the map attached to these Notes purported to indicate the waters 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 published a law or decree that gives the nine dotted lines any domestic legal significance.90 No map of this nature was attached to the official laws and regulations such as the Declaration on China’s Territorial Sea in 1958, the Declaration of the People’s Republic of China on the Territorial Sea and Contiguous Zone in 1992, the Declaration of the People’s Republic of China on Baselines of the Territorial Sea in 1996, and the Law of the People’s Republic of China on the Exclusive Economic Zone and Continental Shelf in 1998.91 In the Notes of 2009, 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, the continental 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 by Indonesia in a Note sent to the secretary-general of the United Nations in July 2010.92 Also the Philippines Note of April 2011 seems to suggest that there is “no legal basis for claiming sovereign rights and jurisdiction over any resources in or under the waters within the nine-dashed line outside the waters adjacent to the islands.”93 In response to the Note of the Philippines, China sent a Note to the secretary-general on 14 April 2011 China claims that “the China’s Nansha islands is fully entitled to Territorial Sea, Exclusive Economic Downloaded by [University of Tennessee, Knoxville] at 18:35 20 December 2014 258 N H Thao and R Amer Zone (EEZ) and Continental Shelf.”94 This implies that China considers that the “Nansha Islands” (i.e., Spratly Islands) are entitled to full maritime zones China did not mention or attach any map to this Note.95 However, the nine dotted lines map will continue to arouse both political and scholarly debates Given the uncertainties in interpreting the Chinese claims, its full impact cannot be ascertained 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 nautical miles in the South China Sea In this situation, China would not need to make a submission to the CLCS The scientific aspects of the definition of the outer limit of the continental shelf has been linked by China to the territorial disputes over the Paracels and Spratlys in the South China Sea In the East China Sea, the Chinese preliminary information states that China will “through peaceful negotiation, delimit the continental shelf with States with opposite or adjacent coasts by agreement on the basis of the international law and the equitable principle.”96 However, in the two Notes of May 2009 relating to submissions by other states 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 and a scientific matter The task of the CLCS would be facilitated if Vietnam and Malaysia can persuade 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 the CLCS–the joint submission by Malaysia and Vietnam possibly will not be considered by the Commission until 2019 and Vietnam’s individual submission until 2022.97 If claimant states in the South China Sea have good intentions, they may seek to work toward an arrangement such as to give their prior consent to the consideration of the submissions, to join 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 solution to the disputes relating to insular formations in the South China Sea First, the outer limit task cannot prejudice any land or maritime disputes and, second, the evaluation of data demands a lot of time and patience from the concerned parties Seen from another perspective, the submissions to the CLCS and the objections may provide 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 outer limit of the continental shelf Countries that have not yet finalized their submissions will increase their efforts to complete the work and make submissions to the CLCS There can 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 about each 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 the Workshop on the Managing the Disputes in the South China Sea and also can contribute toward creating new forums Second, the submissions may encourage the parties to have serious discussions about the status of insular formations and Article 121 (3) of UNCLOS 1982 Objectively, the insular formations in the South China Sea cannot be compared with the land territory in terms of generating maritime zones under UNCLOS 1982 The insular formations cannot be treated as archipelagic states and, consequently, archipelagic baselines may not be used Third, the deadline of 13 May 2009 encouraged the parties to clarify their claim limits The tendency to fix the claim limits in accordance with UNCLOS 1982’s Downloaded by [University of Tennessee, Knoxville] at 18:35 20 December 2014 The South China Sea and Outer Continental Shelf Submissions 259 scientific and neutral criteria are clearer There are some efforts to prevent the influence of insular formations in disputes on the other field of activities under UNCLOS 1982 Claims that are not made from land features will not be in line with the basic principles of UNCLOS 1982 In conclusion, UNCLOS 1982 should serve as common ground for all maritime activities The disputes in the South China Sea are not an obstacle to fulfilling the obligations and implementing UNCLOS 1982 The key to settling the disputes in the South China Sea is to build trust and goodwill among the concerned parties The claimant states should talk with and listen to each other as they work together on a basis of respect for equal and mutual interests and in accordance with international law in order to contribute toward peace and security in the region Notes U.N Convention on the Law of the Sea, 1833 U.N.T.S 397 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 The Scientific and Technical Guidelines of the Commission are available at the CLCS Web site, supra note UNCLOS 1982, supra note 1, art 76(1) Ibid., art 76(5) 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 Journal of Transnational Law 42 (2009): 1265–1309; Ted L McDorman, “The Continental Shelf Beyond 200 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 Continental Shelf: A Technical Body in a Political World,” International Journal of Marine and Coastal Law 17 (2002): 301–324; Ted L McDorman, “The South China Sea After 2009: Clarity of Claims and Enhanced Prospects for Regional Cooperation?” Ocean Yearbook 24 (2010): 507–535; Alex G Oude Elfrink and Constance Johnson, “Outer Limits of the Continental Shelf and ‘Disputed Areas’: State Practice Concerning Article 76 (10) of the LOS Convention,” International Journal of Marine and Coastal Law 21 (2006): 461–487; and Christian Reichert, “Determination of the Outer Continental Shelf Limits and the Role of the Commission on the Limits of the Continental Shelf,” International Journal of Marine and Coastal Law 24 (2009): 387–399 See also “The Outer Continental Shelf: Some Considerations Concerning Applications and the Potential Role of the International Tribunal for the Law of the Sea,” statement by H E Judge Răudiger Wolfrum, president of the International Tribunal for the Law of the Sea, at the Seventy-Third Biennial Conference of the International Law Association, Rio de Janeiro, 21 August 2008, available at www.itlos.org/news/statements/Wolfrum/ILA Rio de Janeiro Outer%20Continental%20Shelf%20E pdf (accessed 27 October 2010) United States, Executive Order 9633 of September 28, 1945–Reserving and Placing Certain Resources 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 the Sea (Princeton: Princeton University Press, 1981), p 18 North Sea Continental Shelf Cases (Denmark/Netherlands v Federal Republic of Germany), [1969] I.C.J Reports Numerous states have exercised rights over the shelf beyond 200 nautical miles—issuing of 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 the Canadian adjacent continental margin beyond 200 nautical miles based on customary international law 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 260 N H Thao and R Amer Downloaded by [University of Tennessee, Knoxville] at 18:35 20 December 2014 Law of the Sea, ed Barbara Johnson and Mark W Zacher (Vancouver, Canada: University of British Columbia Press, 1977), pp 3–7; Ted L McDorman, “Canada Ratifies the 1982 United Nations Convention 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 Convention on the Continental Shelf and upon Article 76 itself to support the view that, as a matter of customary international law, states can legally exercise jurisdiction over the continental margin beyond 200 nautical miles irrespective of the State’s status as a LOS Convention ratifier (p 167) See also Oude Elfrink and Johnson, supra note 6, at 461–487; and Wolfrum, supra note 12 “Decision regarding the date of commencement of the ten-year period for making submissions to the Commission on the Limits of the Continental Shelf set out in article of Annex II to the United 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 the Law 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 Shelf and the ability of States, particularly developing States, to fulfill the requirements of article of annex II to the United Nations Convention on the Law of the Sea, as well as the decision contained in 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 Marine and Coastal Law 21 (2006): 269 and 277–279, has stated: “non-compliance with the time limit contained in Article of Annex II does not have any consequences for the entitlement of the coastal state 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 note 12: “Some delegations pointed out that there was no legal consequence stipulated by the Convention if a State did not make submission to the Commission Several delegations underscored the principle that the rights of the coastal State over its continental shelf were inherent and did not depend upon occupation, effective or notional, or any express proclamation.” 15 See the list of submissions, available at the CLCS Web site, supra note 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 International Law 40 (2009): 63 20 Rules of Procedure of the Commission, Rule 46(1) and Annex II, available at the CLCS Web site, supra note 21 Ibid., Annex I, para 5(a) 22 Ibid., Annex I, para 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 will refrain from disturbing the consideration by the CLCS and that this may help speed up the CLCS recommendation process.” 23 Ibid., at 64 24 Rules of Procedure, supra note 20, Rule 51(1) Downloaded by [University of Tennessee, Knoxville] at 18:35 20 December 2014 The South China Sea and Outer Continental Shelf Submissions 261 25 UNCLOS 1982, supra note 1, art 76(8) 26 Ibid., Annex II, art 27 Ibid., Annex II, art 28 See McDorman, “The Role of the Commission,” supra note 6, at 306 29 UNCLOS 1982, supra note 1, Annex II, art 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 33 CLCS, “Summary of Recommendations to Barbados,” 15 April 2010, available at the CLCS Web site, supra note 34 “Summary of Recommendations to the United Kingdom Respecting Ascension Island,” 15 April 2010, available at the CLCS Web site, supra note 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 submissions per year and 2022 with the rate of per year See Ron Macnab, “Complications in Delimiting the Outer Continental Shelf,” PowerPoint presentation at “Changes in the Arctic Environment and the Law of the Sea,” Thirty-Third Annual Conference of the University of Virginia Center for Oceans Law and Policy, Seward, Alaska, 20–23 May 2009, available at www.virginia.edu/colp/pdf/Macnabouter-c.s.pdf (accessed 13 May 2009) 36 The name “South China Sea” is used internationally and does not prejudice any national claims in this sea 37 See “Executive Summary—Continental Shelf Submission of Indonesia: Partial Submission in Respect of the Area of the North West of Sumatra,” 16 June 2008, available at the CLCS Web site, supra note 38 Sobar Sutisna, T Patmasari, and Khafid, “Indonesian Searching for It’s Continental Shelf Outer 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 42 Ibid., at 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,” May 2009, available at the CLCS Web site, supra note 46 Agreement Between Indonesia and Malaysia Relating to the Delimitation of the Continental Shelves, 27 October 1969, I.L.M., vol (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 49 Vietnam, “Executive Summary—Partial Submission in Respect of the North Area,” 11 May 2009, available at the CLCS Web site, supra note 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 CLCS Web site, supra note 53 Ibid., at Downloaded by [University of Tennessee, Knoxville] at 18:35 20 December 2014 262 N H Thao and R Amer 54 Brunei, “Brunei Darussalam’s Preliminary Submission Concerning the Outer Limits of Its Continental Shelf,” 12 May 2009, available at the CLCS Web site, supra note 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 on 15–16 March 2009,” available at the Brunei Ministry of Foreign Affairs and Trade Web site, www.mofat.gov.bn/news/20090316a.htm (accessed July 2010) 57 China, Note CML/17/2009, May 2009, available on the website of the CLCS, supra note 58 China, Note CML/18/2009, May 2009, available at the CLCS Web site, supra note 59 The Philippines, Note No 000819, August 2009, available at the CLCS Web site, supra note 60 The Philippines, Note No 000818, August 2009, available on the website of the CLCS, supra note 61 The Philippines, Note No 000820, August 2009, available at the CLCS Web site, supra note 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/ (accessed 28 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 66 Vietnam, Note No 86/HC-2009, May 2009, available at the CLCS Web site, supra note 67 Ibid 68 Vietnam, Note No 77/HC-2011, May 2011, available at the CLCS Web site, supra note 69 Malaysia, Note HA 24/09, 20 May 2009, available at the CLCS Web site, supra note 70 Ibid 71 Malaysia, Note No 41/09, 21 August 2009, available at the CLCS Web site, supra note 72 Vietnam, Note No 240/HC-2009, 18 August 2009, available at the CLCS Web site, supra note 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 Commission,” CLCS/64, October 2009, para 92, available at the CLCS Web site, supra note 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 or continental shelf.” Unfortunately, UNCLOS 1982 is silent on the definition of “rocks.” There is a significant literature on this provision See J M Van Dyke and D L Bennett, “Islands and the Delimitation of Ocean Space in the South China Sea,” Ocean Yearbook 10 (1993): 54; John M Van Dyke and Robert A Brooks, “Uninhabited Islands: Their Impact on the Ownership of the 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 of International Law 93 (1999): 872; Barbara Kwiatkowska and Alfred H A Soons, “Entitlement to Maritime 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 Boundary Delimitation in the Singapore Strait,” Ocean Development and International Law 40 (2009): 10; Barry Hart Dubner, “The Spratly ‘Rocks’ Dispute—A ‘Rockapelago’ Defies Norms of International Law,” Temple International and Comparative Law Journal (1995): 304–305; and Alex G Oude Elferink, “The Islands in the South China Sea: How Does Their Presence Limit the Extent of the Downloaded by [University of Tennessee, Knoxville] at 18:35 20 December 2014 The South China Sea and Outer Continental Shelf Submissions 263 High Seas and the Area and the Maritime Zones of the Mainland Coasts?” Ocean Development and International 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 the Philippines, and for Other Purposes, approved 10 March 2009, available at the Philippine Law and Jurisprudence 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 the South 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 National Newspaper (Philippines), available at www.malaya.com.ph/mar13/edtorde.htm (accessed 26 October 2010) 84 The Philippines, Note No 000228, April 2011, available at the CLCS Web site, supra note 85 Ibid 86 China, Note CML/2/2009, February 2009, available at the CLCS Web site, supra note See Japan, “Executive Summary—Submission to the Commission,” 19 November 2008, available at the CLCS Web site, supra note 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-ddsny.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, July 2010, available at the CLCS Web site, supra note 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  ... examine the submissions on the outer limit of the continental shelf beyond 200 nautical miles made by the coastal states of the South China Sea and the potential impact of the submissions on the. .. limit of the continental shelf has been linked by China to the territorial disputes over the Paracels and Spratlys in the South China Sea In the East China Sea, the Chinese preliminary information... of the extension of continental shelf in the South China Sea UNCLOS 1982 contains ambiguous wording with respect to the status of islands.78 In the context of the South China Sea, one observer