The Extended Continental Shelf: A Comment on the Basis for and Progress in Claims of Australia and Indonesia

By : Kapten Laut (P) Rasyid Al Hafiz, MMP Candidate, ANCORS (Australian National Centre for Ocean Resources and Security), University of Wollongong, Australia

Introduction

“The sea has been a major contribution to human development.....  One-third of the world’s petroleum reserves are at sea.”¹ Rights of the coastal State over the continental shelf² are very tempting. These rights obviously make a huge contribution to the economies of the coastal States because these rights related to the extensive oil and gas reserves³.  This is one of the major reasons why the coastal States interest in extending their continental shelf beyond 200 nautical miles beside the intention to comply with Law of the Sea Convention (LOSC) and maritime security interest.

Coastal States that fulfil the criteria in Article 76 of LOSC may claim a continental shelf beyond 200 nautical miles or it can be said that they can establish an extended continental shelf (ECS). Australia and Indonesia, two of the biggest and largest coastal states across the world, have submitted their submission and partial submission to the Commission on the Limits of the Continental Shelf (CLCS)⁴. CLSC has issued recommendations⁵ on Australia’s submission and now is considering Indonesia’s partial submission.

In this essay, I will discuss the provisions applicable to coastal States claiming an ECS under the law of the sea and comment on the basis for and progress in Continental Shelf Submission of Australia and Indonesia.
An overview of the continental shelf and an extended continental shelf

The definition of the continental shelf and explanation of the criteria for claiming an ECS are clearly stated in article 76 of LOSC. The continental shelf can be considered to consist of the seabed and subsoil areas surrounding a coastal State’s territory throughout the natural prolongation of its land territory to the outer edge of the continental margin.⁶ It is advantageous for coastal States which do not have the continental margin up to 200 nautical miles because without claiming, this continental shelf automatically is under their jurisdiction. Indonesia, for example, along the south coast of Java where the land drops off sharply into the Java Trench⁷, the continental margin, obviously, is narrower than 200 nautical miles.

However, coastal States which have the margin extends beyond 200 nautical miles could not be ‘greedy and hoggish’ because they have to comply with this article in paragraph 4 to 6⁸ in order to limit their ECS.  Dr. Larry Mayer, Professor and Director, Centre for Coastal and Ocean Mapping/NOAA-UNH Joint Hydrographic Centre, University of New Hampshire, noted that “under LOSC, to establish an ECS, the coastal State must demonstrate the natural prolongation of coastal territories and mass”.⁹  In addition, when defining the continental margin, it just consists of the seabed, subsoil of the shelf, the slope and the rise, the deep ocean floor excluded.¹⁰

The coastal State may establish the outer edge of the continental margin wherever the margins extends beyond 200 nautical miles from its baseline. The delineating procedure of the outer limits of continental shelf is governed by a complex combination of four rules¹¹ that consists of two formulas  and two constraints.

A coastal State may establish the existence of a continental margin by using two formulas. The first formula is the sediment thickness formula; the edge of a coastal state’s continental margin can be measured by reference to the thickness or depth of the sedimentary rocks overlying the continental crust. This formula consists of a line delineating points where the thickness of the sediment is 1 per cent of the distance from the foot of the continental slope¹² (known as the Gardiner Line). For instance, Indonesia using this formula in order to determine the outer limit of the extended continental shelf in the area of North West of Sumatra.¹³

The second formula is arcs 60 nautical miles formula. The edge of a coastal state’s continental margin can be measured by a distance formula consisting of a line 60 nautical miles distant from the foot of the continental slope¹⁴ (called the Hedberg line). For example,Australia using this formula in order to determine the outer limit of the extended continental shelf of Kerguelen Plateau by defining 555 points surrounding this plateau.¹⁵

The similarity of these formulas is both formulas are measured from the foot of the continental slope which is defined as the point of maximum change in gradient at the base of continental slope.¹⁶ Thus, locating the fixed points of the foot of the slope (FOS) is very essential like determining the baseline. In addition, a coastal State may utilize whichever of two formulas is most beneficial to it, in other words, its outer limit may be created of a mixture of the two types of entitlement lines.¹⁷

Once the continental margin has been established, in order to avoid uncontrolled ECS beyond the 200-nautical-mile limit, two maximum constraints or cut-off lines on the coastal state’s outer continental shelf limits must be applied. The first constrain is a distance-350 nautical miles from the coastal state’s related baselines. ¹⁸ Even in fact, the extended continental shelf extends beyond 350-nautical-mile limit, a coastal State just only can claim up to 350 nautical miles. For example, Mexico using this formula in order to determine the outer limit of the ECS of the Western Polygon by this provision because of less satisfaction by using the other constraint.¹⁹

The second constraint is based on depth and distance-the 2,500-metre isobath (the line connecting points with a depth of 2,500 metres) plus 100 nautical miles. ²⁰ It means that after the depth of sea reach at 2,500 metres and then it is created the line of it and projected 100 nautical miles to seaward. This constraint is used by New Zealand in order to determine the outer limit of the ECS of its northern region. ²¹ Like the formulas, a coastal State might choose the most valuable option resulting from the combination of these two constraint lines. ²²

In addition, it is also provided that the coastal state shall delineate the outer limits of its continental shelf where it extends beyond 200 nautical miles from its baselines by straight lines not exceeding 60 nautical miles in length, connecting fixed points, defined by coordinates of latitude and longitude. ²³ Based on above provisions and requirements stated in article 76, it is inevitable that the process and procedure for delineating the outer limits of the extended continental shelf is challenging.²⁴ Clearly this process requires significant scientific, technical, human and financial resources, including expertise in geology, hydrography, geophysics and geodesy.²⁵ 

Claiming an ECS.

After determining the outer limits of the continental shelf beyond 200 nautical miles from the baselines which the territorial sea begins to be measured, the coastal State is eligible to submit its submission to CLCS.²⁶ Under article 4 of Annex II to LOSC, eligible coastal states are obliged to hand in their submission of such outer limits with supporting scientific and technical data to the CLCS within ten years of the entry into force.

According to CLCS, there have been 51 submissions received and 11 of them have been already given recommendations.²⁷ It is arguable that establishing the ECS is not a race for mineral resources, nor is it caused by climate change; even there was a sharp increase of number of submissions handed in 2009. It is supported by Margaret F. Hayes, Director of the Office of Oceans Affairs, Bureau of Oceans and International Environmental and Scientific Affairs, U.S. Department of State. She noted that

There has been an increase in submissions to the Commission recently, not necessarily because of a race for seabed resources or because of climate change, but because UNCLOS sets forth a ten-year time frame from the date a State becomes a party within which it must submit to the Commission data regarding the outer limits of its ECS. For many coastal States, that ten-year time frame ends on May 13, 2009.²⁸

Furthermore, when the claim of the coastal State is approved by CLCS and in this case there has been an agreement in force between coastal State and its neighbouring states relating to maritime boundary,²⁹ the coastal State shall show the outer limit lines of the continental shelf and the lines of delimitation on appropriate chart.³⁰ And then the coastal State shall give its publicity of new lists of geographical coordinates and send to the United Nations the copy of that chart.³¹

Rights of the coastal State over the continental shelf and its ECS are just sovereign rights not sovereignty.³² In addition, if the coastal State does not carry out any exploration and exploitation, the other State that intent to do that, should get permission from respective coastal State.³³  Unlike exploitation within 200 nautical-miles on continental shelf, the coastal State, obviously after receiving recommendations from CLCS, has an obligation³⁴ of annual payment and contribution. This payments or contributions are as the result of exploitation of the non-living resources of the ECS.³⁵ This payment should be made through the Authority and then will distribute the fund to appropriate states.³⁶

Continental Shelf Submission of Australia.

Based on article 4 of Annex II to LOSC, on 15 November 2004,³⁷ Australia handed in submission of its ECS to CLCS and became the first three States that already submitted. This submission consists of the outer edge of Australia’s continental margin extends beyond 200 nautical-mile from its baseline in ten distinct marine regions, include the huge ECS offshore the Australian Antarctic Territory (AAT), which has been still a live dispute among the other four states namely France, New Zealand, Norway and the United Kingdom.³⁸  Not more than four years after submitted, CLCS has issued its recommendations on 9 April 2008³⁹ over Australia’s submission; nine of the regions were approved namely the ECS in Argo, Great Australian Bight, Kerguelen Plateaue, Lord Howe Rise, Macquarie Rise, Naturaliste Plateau, South Tasman Rise, Three Kings Ridge and Wallaby and Exmouth Plateaus.⁴⁰  Meanwhile, the ECS in AAT as requested, has not been approved yet.

Beside the Article 76 of LOSC, the bases of this submission are Australian Antarctic Territory Acceptance Act 1933 (Cth), the Seas and Submerged Lands Act 1973 (Cth), and some of  Commonwealth of Australia Gazettes, namely No.56, 11 September 1953 related to Australian first claim of its continental shelf, No.S189,    26 September 1979 related to the Australian Fishing Zone, No. S297, 13 November 1990 related to its territorial sea, No.290, 29 July 1994 related to a 200 nautical-mile exclusive economic zone proclamation, and No.S148, 7 April 1999 related to a 24 nautical-mile contiguous zone. ⁴¹ From all bases mentioned above, the basis related to the AAT was still becoming a question because Australia is one of seven claimants to this territory beside Argentine, Chile, France, New Zealand, Norway and the United Kingdom.⁴²

On the other hand, the comment of Australia’s decision to include the AAT ECS on its submission is, “it was a smart idea”. Because after submitted, Australia could see world’s response of this, for example the response from six fellow Antarctic Treaty Consultative Parties namely Germany, India, Japan, Netherlands, the Russian Federation and the United States.⁴³ In its response, the United States stated that “it does not recognize any State’s claim to territory in Antarctica”, or to “the seabed and subsoil of the submarine areas beyond and adjacent to the continent of Antarctica.⁴⁴  This situation depicts that Australia will should have more strategy and coordination between respective states to make the approval of the AAT ECS claim more feasible and acceptable  without any disputes around its claim.

From database of the Department of Resources, Energy and Tourism, Australia is the world’s largest supplier of coal, the second biggest supplier of Uranium and Fifth biggest supplier of liquefies natural gas (LNG).⁴⁵ The expansion of Australia’s extended continental shelf which legally approved by United Nations, in this case CLSC, therefore, is the great effort to maintain Australia as an energy superpower⁴⁶ and to provide energy for its people. In addition, Australia also can exercise all sovereign rights over ECS. For example,  the ECS of Wallaby and Exmouth Plateaus⁴⁷ which has been surveyed by Geoscience Australia, this area  is very potential to be explored and exploited dealing with their natural resources, especially for considerable stocks of Australia’ petroleum.⁴⁸ Hence, it is believed that Australia’s future resource prospects will undoubtedly come from offshore.⁴⁹

However, according to Article 78 of LOSC,
The exercise of the rights of the coastal State over the continental shelf must not infringe or result in any unjustifiable interference with navigation and other rights and freedom of other states as provided for in this Convention.⁵⁰
Australia’s exploitation of its ECS, therefore, must comply with this article. In addition, Australia is also obliged to make annual payments or contributions in kind for all production at an ECS.⁵¹ These payments must be paid to the International Seabed Authority and then will be distributed to the countries which have ratified LOSC, taking into account the interests and needs of developing States.⁵²

The offshore oil and gas industry situated in locations of the ECS presents distinctive factors for international and security regulation and enforcement.⁵³ Similar to opinion of Robin Warner, Senior Research Fellow, Australian National Centre for Ocean Resources and security, University of Wollongong, it is believed that consequences of having the huge ECS are very challenging.⁵⁴ Robin Warner also noted that “The challenges Australia faces in protecting its national interests at sea range from preventing potential aggressors from crossing Australia’s maritime approaches and deterring criminal activity in Australia’s offshore zones.”⁵⁵ An adequate security measures is vital in establishing and protecting exploitation activities on the ECS. Vulnerable Offshore installations are becoming great target of terrorists. Extra surveillance and enforcement patrols⁵⁶, for example, are needed to ensure the security of these activities. The other challenge is unpredictable weather⁵⁷ at High Sea above the ECS because of the global warming. This challenge, obviously, requires the dedication of human and sophistication of equipment. In other words, very large funds are needed to realize this opportunity.

Continental Shelf Submission of Indonesia.

According to paragraph 3 of Annex I of the Rules of Procedures of CLCS ⁵⁸, “a submission may be made by a coastal State for a portion of its continental shelf” related to the delimitation boundaries with neighbouring states. Because of this, Indonesia, on 16 June 2008 ⁵⁹ has only proposed partial submission of the ECS in the area of North West of Sumatra to the Commission on the Limits of the Continental Shelf while preparing the other partial submissions in respect of the area of North of Papua and South of Sumba Island.⁶⁰ According to Khafid, researcher from the centre of the basic mapping of marine and aerospace of Bakosurtanal, the ECS in the area of North Papua is quite complex because it may overlap with neighbouring countries such as Palau, Micronesia and Papua New Guinea.⁶¹ Therefore, the necessary diplomatic relations with these countries to negotiate is needed in establishing joint submission. ⁶²

The bases of this partial submission are Article 76.1 and Article 76.4.a (i), LOSC and the Governmental Regulation (PP-38/2002). The first basis is related to the ECS, whereas the second contains a list of coordinates of 183 base points to construct Indonesian baselines. Considering these bases and data from the Digital Marine Resources Management Project (DMRM), ETOPO-2 and global seismic or sediment thickness,⁶³ Indonesia has drawn the lines determined by the 1% sediment thickness formula for the area under this partial submission. And the result, 5 fixed points have been established,⁶⁴ which combined with 200 nautical-mile limit, drawing the outer limit of ECS in the area of North West of Sumatra.

Unlike Barbados, the United Kingdom and Northern Islands, which submitted their submissions in May 2009⁶⁵, Submission of Indonesia dated 16 June 2008 was firstly discussed in the twenty-third⁶⁶ session of CLCS, from 2 March to 9 April 2009, not in the twenty-second⁶⁷ session which was held on 11 August-12 September 2008. During this session, the Subcommission prepared a series of questions addressed to the delegation of Indonesia concerning clarifications and demand for additional information. Furthermore, the Subcommission decided that further discussion will be continued in the twenty-fourth⁶⁸ session. Like previous session, during this session, there was still discussion dealing with considered data and information provided by Indonesia in response to questions raised by the Subcommission. After that the Subcommission continued its work from 8 to 10 September 2009 and held three meetings with the delegation of Indonesia. The Subcommission agreed to keep on its work during the intersessional period and to meet in subsequent session. It was not good news because the Subcommission was not confident to arrange draft recommendations at that time.  Further data and other material were needed to make it ready for recommendations. 

Nevertheless, there has been a good development when the Chairperson of the Subcommission, Mr. Croker, informed the Commission that the Subcommission considered a substantial amount of new material that had been received in early March 2010 from Indonesia, in response to a request for more information by the Subcommission. The Subcommission held two meetings with the delegation of Indonesia, during which the Subcommission had presented its preliminary findings with respect to the new material. The Subcommission decided to continue its work during the final week of the twenty-fifth⁶⁹ session, from 19 to 21 April, during which it considered newly submitted material. The Subcommission also decided to meet during the twenty-sixth session from 2 to 13 August 2010. The Chairperson reported that the Commission expected to be in a position to finalize considerations and begin drafting recommendations at that session. All in all, hopefully the progress of Indonesia’s partial submission as soon as possible will be approved by CLCS.

Many people may assume that Indonesia’s partial claim was less significant.  It is believed that the profit of this partial submission, indeed, is difficult to see in the short time, however, it is a great investment for the future. Although Indonesia’s partial submission was a small area of 3,915 square kilometres⁷⁰, it was a smart action of Indonesian government in order to create foundation for claiming the other extended continental shelfs otherwise Indonesia will not lose the chance to claim them in the future. The great way of diplomacy also shown by Indonesian government by submitting the safe extended continental shelf that was clear from any boundaries disputes.⁷¹

If this partial submission is replied by recommendations by CLCS, obviously, Indonesia will have additional sovereign rights over its extended continental shelf. Indonesia will have an opportunity to explore and exploit the natural resources. Oil and gas reserve is one of the prominent assets other than rights over sedentary species. Because of this, an expensive and serious research, undoubtedly, is needed to make “the dream comes true”. However, this opportunity must be balanced by capability to secure the sea over the extended continental shelf.

Comparisons of Australian and Indonesian Submissions

Australian and Indonesian submissions definitely cannot be compared face to face because their geographical and geological settings are totally different.⁷² Most of Indonesia’s northern maritime border is limited by the maritime claims of its neighbours, while the south one is marked by the long, deep Java Trench, which very close to Indonesian shore. Australia, in contrast, is bordered by only five neighbours (Indonesia, Papua New Guinea, France, New Zealand, and Solomon Islands) with whom it may implement overlapping claims, and, as a continent, of course, naturally fringed with a large continental shelf. This geographical position has helped Australia confirm its sovereign rights over an extremely large extended continental shelf entitlement. ⁷³

Conclusion

Overall, claiming an ECS is not an easy thing, the coastal State must totally refer to the LOSC dealing with the procedures, submissions, payments and contribution and publicity of ECS as well. The bases that Australia and Indonesia used in their submission were suitable except the Australian Antarctic Territory Acceptance Act 1933 (Cth). However, what Australia and Indonesia did in relation to their ECS was very brilliant because Australia can open the eyes of the world by claiming the AAT ECS, whereas Indonesia can make a foundation for claiming further submission of its next ECS by claiming firstly small ECS. Related to the progress of their submission, CLCS had already issued the recommendations of Australia’s submission and is drafting recommendations of Indonesia’s partial submission.

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Footnote

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