 Hello from Australia My name is Stuart Kay. I'm the director of the Australian National Centre for Ocean Resources and Security at the University of Wollongong And I'm delighted to be able to participate in this virtual conference Celebrating the 40th anniversary of the milk program at Dalhousie Law School The milk program is a marvellous program I was pleased to see it in action some years ago when I studied at Dalhousie doing my JSD I'm absolutely rapt to be able to participate today Not only because it's a marvellous program and its success deserves to be celebrated But from the fact I'm 12,000 miles away where the temperature is probably 30 or 40 degrees warmer than it is in Halifax at the moment In fact from where I'm recording this I can see the Pacific Ocean where it's a balmy 26 degrees with a water temperature of 22 Consequently I'm much happier than being in Halifax The topic of my presentation today is extended continental shelf issues as zone of contention And I want to consider the number of disputes that have arisen since states began to assert extended continental shelves In the years since the adoption of the Law of the Sea Convention A number of these claims were considered by the Commission in the years since they were first asserted in 2009 And they've given rise to significant disputation And in this presentation I want to look to see to what extent that disputation has been unnecessary And what problems it has caused between protagonists It all focuses around the extended continental shelf Which is that portion of the continental shelf beyond 200 nautical miles outside the exclusive economic zone This area of shelf is continued to be asserted by states because it's the natural prolongation of their land territory During the negotiation of the Convention when there was talk that the shelf would end with the exclusive economic zone ends at 200 nautical miles A number of states including both Australia and Canada said that they had shelves which naturally extended well beyond 200 nautical miles in places And therefore they wanted a shelf that would extend beyond this The mechanisms that the Convention provides for this shelf are very important But they still ultimately represent the natural prolongation of land territory And this is very much a natural phenomenon as we can see We can see it here in this map of Southern Australia Showing the island of Tasmania south of the Australian mainland What's clear in this diagram is that there's an area of flat relatively easily identifiable shelf As opposed to the much deeper area that quickly goes away to deep water The shelf is this relatively flat area And the continental slope is this relatively steep drop down into the deep ocean This kind of feature is common for many large land masses around the world Where an easily identifiable shelf is visible The Law of the Sea Convention reflects the extension of this shelf beyond 200 nautical miles There are three options for determining the legal extent of the continental shelf 200 nautical miles from territorial sea baselines And then separate calculations for beyond 200 nautical miles based on sediment thickness Or a formula developed by the American Hollis-Hedberg 200 nautical miles from baselines is relatively straightforward And is coterminous with the exclusive economic zone The sediment thickness rule on the other hand is much more complicated And it requires a calculation based on a position known as the foot of the slope And the sediment thickness of the crusts of the continental shelf The second formula is based on the foot of the slope as well This Hedberg formula is derived from calculating a foot of the slope point And then extending a further 60 nautical miles further out to sea The foot of the continental slope is defined as the maximum change of gradient In the base of the slope as it drops down to the deep ocean And this can best be illustrated in these diagrams Within the diagram you can see two areas of continental shelf The foot of the slope is where as the shelf begins to drop away And drops down to the deep ocean, you have the maximum change of gradient At the base of the slope This point is used in both calculations For the sediment thickness, it's your measuring point To then find a distance that is 100 times the thickness of the continental sediment For the Hedberg line, it's a much simpler calculation A merely 60 nautical miles further out to sea It's open to a state to pick whichever of these two formulae Gives it the best result and the largest continental shelf And indeed they can use a combination of the two Depending on the configuration of the seabed And the availability of sediment thickness There are also overall constraints on the operation of both of these rules There are maximum limits of either 350 nautical miles Or 100 nautical miles beyond the 2500 meter isobarth And you can use whichever of the two again gives you the larger result On the diagram on the screen You can see that there's been a calculation of a legal continental shelf margin And then this has been brought back because it exceeds both 100 meters beyond the 2500 meter isobarth And 350 nautical miles So it's then pulled back to a mere 350 nautical miles in these circumstances However, 350 shouldn't be viewed as an absolute limit on the continental shelf If the water depth doesn't drop below 2500 meters Then that constraint won't operate You can appreciate with methodology this complicated That a coastal state might be tempted to skimp on the data needed to collect this And the parties to the law of the sea convention during its negotiation were very much alive to this Consequently they created a body to vet the claims of states Known as the commission on the limits of the continental shelf A coastal state is obliged if it wants to claim continental shelf beyond 200 nautical miles To make a submission to the commission on the limits of the continental shelf The commission can then make a determination on what it thinks of that data And such determination is final and binding Once it's all done it's then open to a coastal state to formally assert its continental shelf Through the deposit to the UN secretary general of charts and other relevant data The convention also imposed a deadline on states Of 10 years from the time the convention entered into force for that state To lodge data with the CLCS This was to ensure that states didn't drag their feet and presented data in a timely fashion But almost immediately it became apparent that this was going to be something of a problem for many states Obviously the collection of technical data about the content of the seabed As well as the configuration of the seabed Was going to be technically very challenging for states It was thought originally by providing for a 10-year deadline In NX2 article 4 of the convention That 10 years was plenty of time But in practice this proved not to be the case Over time states began to realise that the 10-year deadline was not going to be possible An extension was made And the implications of this extension within the convention Are perhaps open to some discussion What was initially decided was that the 10-year deadline wouldn't begin With the entry of the convention into force For many states on the 16th of November 1994 But rather would commence in May 1999 When the commission finally concluded its rules of procedure Making it clear as to how a state should submit its data Even this extension however was going to prove problematic Because for some states even 2009 was going to be an impossible deadline to meet This raised the issue of what happens if a state doesn't comply with its deadline It wasn't clear whether a state could continue to assert an extended continental shelf And this vexed the state parties considerably Ultimately a number of solutions were reached One was to allow states to make what amounted to a partial submission To be able to lodge some of the data they needed to in order to support a claim By lodging some of the data in a timely fashion And promising to lodge other data down the track It was felt this was enough that states would have met their deadlines Even this was going to be problematic for some states So an additional process was agreed To provide for states lodging what was known as preliminary information This is to say that a state indicates that it thinks it has an extended continental shelf claim But in reality it's not in a position to lodge full data with it As a result for that preliminary information It merely indicates to the commission that it thinks it has a submission to be made At some point in the future and it'll get back to the commission shortly To illustrate how this works Here is a map of Indonesia's submission Now relative to the potential shelf that Indonesia can claim This is a very small area And yet the area on the screen is all Indonesia has lodged data for In order to discharge its tenure deadline Preliminary information responses too have varied considerably On the screen now we have one page of the French submission With respect to French Polynesia and Wallace and Fortuna Islands in the Pacific It's a very detailed preliminary information submission You can see on the screen for example a series of points running from 30 through to 67 The distances between which are largely only one nautical mile And yet it covers a vast area Moving further into the submission we're now up to 0.1239 And the submission is still going strong We can see again describing points that are only a nautical mile apart You can get a feel for exactly how big this preliminary information is By looking at this diagram Which just shows the French Polynesia portion With the areas of extended shelf in the preliminary information Marked in brown This is an absolutely vast preliminary information submission And it's not surprising that France not long after the deadline Has now lodged a full submission with respect to French Polynesia Other states have not been quite so thorough And here is the preliminary information lodged by the Union of the Camour Islands The entire preliminary information is contained in this letter And if you have the French language as something you can understand You'll appreciate there's very little information About what precisely the Union of the Camours is actually claiming It indicates who is responsible But gives no details or coordinates This is perhaps not surprising When one considers that here are the Camours on a map of the western Indian Ocean They're in the north of the Mozambique Channel Between Madagascar and Mozambique on the African mainland What's remarkable about the Camour submission Is that they're claiming an area of extended continental shelf When at no point does their exclusive economic zone Actually reach the high seas They're completely surrounded by the exclusive economic zones of neighbouring states Including to the north, Seychelles and Tanzania What's even more remarkable about the Camours claim Is that the Camours didn't protest When Seychelles and Tanzania agreed a maritime boundary some years ago Between their respective EZs Even though this EZ straddles the continental shelf That the Camours apparently are seeking to claim Further into the Indian Ocean The claim itself highlights some of the problems With extended continental shelf being asserted by states In that it's difficult to see how the Camours situation Is one that is countenanced under the Convention Certainly a continental shelf that proceeds underneath another state's EZs Is novel, but it's by no means unique We can see an example in the context of Canada's Extended continental shelf claim On the screen now is the Canadian extended continental shelf That was submitted recently to the Commission A close-up shows the area in the vicinity of Newfoundland And Nova Scotia And if you have sharp eyes You can see the French exclusive economic zone Generated by Saint-Pierre and Michelin Indicated on the map The French have recently lodged their own extended continental shelf claim Which you can see in purple Directly to the south of the dark blue EZ Generated by Saint-Pierre and Michelin What's remarkable about this shelf Is that it extends outward from the edge of the Canadian EZ And is coterminous with the Canadian Extended continental shelf claim Exactly how the French continental shelf can burrow under the Canadian EZ And pop out the other side isn't clear Nor is it clear exactly to what the French claim is attached Because only one side appears to be anchored to the Canadian EZ While the other seems to stop out on the Canadian shelf The making of an extended continental shelf claim That proceeds under another state's EZ Is an example of a type of problem That could be expected in the context of extended continental shelf submissions And that's one of where matters are surrounded by dispute You can appreciate that some extended shelf claims Might be made from territories that are disputed Or alternatively, there could be maritone jurisdictional disputes Like that between France and Canada Or between the commas and presumably Seychelles and Tanzania The commission has been geared to deal with these sorts of situations From its inception And its rules of procedure provide that in the event that there is a dispute And the parties do not agree for the commission to look at data The commission simply will not look at data Until the dispute is resolved To the satisfaction of all of the parties This means that if a matter comes on The commission simply will not look at it In practice you might think that that means That the number of submissions that are made To matters that are in dispute is relatively low In fact, from the practice since 2009 It might be said that the opposite is the case On the screen now is a map of the South China Sea It's poor quality But that's the quality that was provided by the state In its executive summary This is submission lodged by Vietnam With respect to an area in the northern half Of the South China Sea Between the Spratly Islands and the Paracel Islands All of which are disputed between Vietnam And a number of its neighbours At the time the submission was made Vietnam also lodged a declaration And I've underlined the relevant portion of this declaration On the screen Vietnam notes that it is of the view that the area Of continental shelf that is the subject of this submission Is not the subject of any overlap and dispute Although it does earlier on note That there is some overlapping interests This statement is remarkable Because on a clearer map We can see exactly the area that's in issue This is perhaps the most disputed area Of ocean space on the planet Where five states in Taiwan Are actively disputing the sovereignty of the Spratly Islands And the Paracels are disputed Between Vietnam and China It's most unlikely that Vietnam Was unaware of the reaction That its neighbours were likely to have In asserting extended continental shelf In the heart of the South China Sea Frankly the claims of states In the region are well known It's far more likely that Vietnam Intended the process to be one Where it placed its claims Front and center before an international body Perhaps in the vain hope That there would be no protest But even if there was a protest To be able to have another opportunity To place its claims in a forum Which others could not reach Vietnam is not alone In the using of the commission For the making of what amounts to Effectively an ambit claim We can see this here In the claim made by the Republic of Korea The extreme north end of this map To the area of extended continental shelf Marked in green South of the large purple joint development zone The strange shaped maritime zone Is the result of a joint development agreement From the 1970s Where the Republic of Korea and Japan Agreed to share petroleum revenues Sourced from this area What's remarkable about the Korean Extended continental shelf claim Is its claiming continental shelf in an area Where it's agreed to share jurisdiction with Japan With respect to seabed petroleum production This is remarkable because it's amounting To an ambit claim in an area Which for most purposes is actually Settled between the two parties And this did not do much In terms of helping to improve Korean and Japanese relations Equally remarkably And perhaps for the security Of the Asian region Perhaps a little more disturbingly On the screen now we have The Chinese preliminary information Asserted in the East China Sea The Chinese preliminary information Doesn't include a map Like the one I've included on the screen Nor does it provide For the coordinates of this line All the Chinese do is specify A series of foot of slope points These points, when one extends Out of distance of another 60 nautical miles Produces the red line on the screen The line abuts the Japanese Ryukyu Islands Which are not disputed Between Japan and China Unlike the Senkaku or Daiyu Islands Which are marked on the map The Ryukyu Islands Are undoubtedly Japanese And have been accepted by China As Japanese territory What's remarkable from this submission Is that it appears that China Is giving no weight whatsoever To these islands But rather is asserting Its extended continental shelf Extends right up to the beach In the case of the southernmost islands Which you can see down here It's apparent if that line was extended That the Japanese islands Would be sitting on Chinese Continental shelf This is a remarkable formulation And one which did little to improve Relations between China and Japan In fact the present difficulties In the relationship between the two states Could be charted to stem From the 2009 submission Made by China making this assertion The Japanese response And subsequent responses by Taiwan And by China have seen to The deterioration in relations Between Japan and China in recent years It would be wrong to suggest however That the commission has only been used In a manner which to aggravate Relations between states And to make assertions with respect To maritime jurisdiction Some states have gone out of their way To avoid these kinds of difficulties The Philippines for example Has claimed an area of extended Continental shelf to its east On the Bentham Rise This area in the east Is the one area of extended continental shelf The Philippines could claim That would give rise to no difficulties With any of its neighbours And accordingly it's used that As a partial submission Similarly the extended shelf claims Of India and Pakistan Asiduously avoid to meet at any point Even though they share A common maritime boundary As yet under limited The Indian extended shelf Stay apart by a few nautical miles Along their lengths One imagines that this is quite deliberate On the part of both states To avoid adding an additional dispute To their already strained relations With respect to boundaries elsewhere Some states have even chosen To cooperate with the lodgment Of their submissions You can see here that there's A joint submission being made by Seychelles and Mauritius A substantial area of extended continental shelf These two developing states Have chosen to work together To make a joint submission To pool their resources in the collection of data And ultimately to put on hold Any maritime boundary issues In order to make the submission And this has been very effective And a technique used in a number of instances By states Cooperation is not always possible though And we can see this in the Bay of Bengal The mass of colours here Represents the different continental shelf claims Asserted by different states The area in pink Is that claimed by Sri Lanka And it doesn't overlap at any point With the area in brown Claimed by India Suggesting that India and Sri Lanka Have effectively sorted a maritime boundary With respect to their continental shelves Although yet they've formally To conclude such a boundary On the other hand India and Burma Or Myanmar Have an overlapping area Of continental shelf Because presumably they could not agree To the extent of where their shelves would go This is a little surprising Given they've concluded quite An extensive maritime boundary That is based assiduously On equidistance And one would have thought a similar arrangement Would be concluded with respect to the continental shelf But this evidently has proven impossible What's not immediately visible from this map Is that Bangladesh also wishes to claim An extended continental shelf In the Bay of Bengal This claim adds a complication But it's not as difficult as it might seem Because Bangladesh has recently concluded Boundary arrangements With Myanmar to the east And India to the west Through third party adjudication Through a court of arbitration And the international tribunal For the law of the sea respectively A remarkable side effect Of the extended continental shelf Process has been to create dispute Where no dispute previously existed Or at least where the dispute was Relatively small and minor On the map here We have an area of the south west Pacific and between Australia New Zealand, New Caledonia And Fiji The colours on the map Indicate the various extended continental shelf claims The areas in green are Australian The areas in yellow are French The areas in grey are New Zealand The areas in brown are Fijian And the pale cross-hatched area Between New Zealand and Tonga Is the claim by Tonga What's remarkable is the amount of cross-hatching That's necessary here And yet the only disputed territory On this map is a tiny pair of islands Called Matthew and Hunter Between New Caledonia Which is French and Vanuatu This only gives rise to a small area Of extended continental shelf And yet it's given rise to A substantial amount of dispute Now between Australia, New Zealand and France And presumably Vanuatu At some point in the future Although Australia and New Zealand Have concluded a maritime boundary Which settles boundary matters between them The French submission largely ignores this Even though Australia and France Had a continental shelf boundary In the vicinity It's also remarkable the degree of overlap Between Fiji, New Zealand and Tonga Giving rise to another dispute Between these states In conclusion The extended continental shelf regime Is given rise to a whole range of new disputes Or at least has exaggerated a number of old ones It's fair to say that relations Between China and Japan, for example Haven't been marvellous for much Of the last half century But certainly the Chinese preliminary information Launched in 2009 Marked the start of an upswing Of poor relations And this can be seen in a number of contexts Throughout the Asian region And in the broader Pacific and wider world The extended shelf has sought to exaggerate these problems It's not helped by the fact That making an extended shelf claim Creates national expectations within states A population of a state is told A large area belongs to them Albeit with the form of national jurisdiction But it's still perceived to be theirs And this creates expectations That it will be defended That it will be looked to That it will be supported In claims that are made before the commission This helps to exaggerate the problem And makes it more difficult for states to get on It's also fair to say That some states have used the process To further admit claims By asserting what they might wish to happen Rather than what might be realistically Accepted by their neighbours This also serves to exaggerate problems That are made too ill-defined They're not well set out It's not clear on what basis particular claims are made Particularly those that extend out into the ocean On one arm and are only anchored to an EZ With the other It's not clear on what basis The shelf is being asserted Or where it begins and ends All of this is particularly frustrating When one considers that what they're arguing about Areas of extended continental shelf Beyond 200 nautical miles These areas by and large Are not used for any current purpose It's not a valuable piece of ocean real estate There's no oil or gas exploitation Taking place anywhere in the world With respect to these areas of extended shelf It makes one think that the number of disputes That have been given rise to Out of making these claims That it's far in excess of the value Of the claims themselves Which is particularly disappointing And a point of some concern For the longer term operation Of the law of the sea It's been marvellous being with you all Or be it virtually for this conference I wish the conference every success And to some extent Although looking at the weather Not too enthusiastically I'd love to have been there with you all Thanks very much