Significant errors made on the part of state authorities with regards to handling Sri Lanka’s efforts to extend its continental shelf margin have led to a grave situation where the country is in imminent danger of losing nautical mileage claimed previously, experts warned.
“The danger of bungling this administratively on the Sri Lankan side is that we will lose possibly most of that 60 percent that we won. And we will be cut from 750 miles to 350 miles. This is the gravity of this situation,” Secretary General, Indian Ocean Marine Affairs Co-operation (IOMAC), Dr. Hiran Jayawardene said.
The extension of the continental shelf of the sea is a matter beyond the national jurisdiction of a particular State. As such, the matter is governed by the provisions of the United Nations Convention on the Law of the Sea (UNCLOS), specifically through Article 76. Since the ocean flow differs from country to country, each country has to measure the continental shelf for themselves.
Continental shelf and the law
Article 76 of the UNCLOS provides an alternate way for a country to measure its continental shelf and to make a claim for the continental shelf. With regard to the case of Sri Lanka, there is an exception to Article 76. This is the Statement of Understanding (SOU – Annex II of the Final Act of the Third United Nations Conference on the Law of the Sea) concerning a specific method to be used in establishing the outer edge of the continental margin. It allows for a specific method for Sri Lanka to be used for the purpose of measuring the continental shelf.
This is because Sri Lanka is situated in the southern part of the Bay of Bengal. Scientific evidence for the aspects of the aforementioned Article 76 and the SOU must be submitted by the State to the Commission on the Limits of the Continental Shelf (CLCS), based in New York, US, which then examines the claim and subsequently may or may not authorize the claim. Sri Lanka met the deadline set for 2009, has submitted its claim.
There are many such claims at present and Sri Lanka is therefore in a queue of sorts. It will be four to five years before the matter is taken up for deliberations. The CLCS’s recommendations can be challenged by States which are signatories to the UNCLOS at the International Tribunal for the Law of the Sea (ITLOS) in Hamburg, Germany or the States could go for international arbitration.
Simmering disputes pertaining to the extension of the continental shelf have arisen between Bangladesh and India, Bangladesh and Myanmar and the latest between Bangladesh and Sri Lanka, and the Maldives and Sri Lanka.
Recently Bangladesh and the Maldives had objected to Sri Lanka’s submission made to the Commission on the Limits of the Continental Shelf (CLCS). Legal experts have also observed that these protests by Bangladesh and the Maldives could have been mooted by India, which was already violating all its obligations in the Palk Strait.
However, Dr. Jayawardene pointed out that India had in fact backed Sri Lanka during the UN conference. “We worked very closely with the Indians at the conference, and we jointly negotiated with the Soviet Union who became strong supporters of Sri Lanka in making the exception,” he said. “There was a clause in the exception which allows India to claim only if Sri Lanka claims this area. India’s co-operation made it possible for this exception to go ahead,” he observed.
Consequently, India had given an option of settling any remaining issues pertaining to the boundary, and then submitting the case, or submitting and then settling. “Unfortunately we chose the latter. I think we should have respected India’s offer of support and come to some understanding,” Dr. Jayawardene opined.
The case of Sri Lanka with regard to the Continental margin arises from a special exception negotiate at the third UN conference of the law of the sea by the Sri Lanka delegation in the late 70s and running into the early 80s. Dr. Jayawardene, who was part of the initial discussions said the exception was endorsed unanimously by the conference as a whole.
Accordingly, this exception permits Sri Lanka to avoid the consequences of the formula then proposed for defining the continental margin, known as the Irish formula, which was based on the thickness of sediments. According to the formula, the sediments should be at least one percent of the distance from the baseline of the slope.
“In Sri Lanka’s case, we were sitting on the southern part of the Bay of Bengal fan, the biggest submarine sediment distribution in the world. We were getting cut off at a point where sediment thickness was in the region of 3.5 kilometers when the minimum required for hydrocarbons was in the region of one kilometer,” he explained.
Dr. Jayawardene said that the consequences of accepting the Irish formula would have meant that Sri Lanka would have lost over 60 percent of our continental margin. If you look at the Statement of Understanding that is stipulated there. As a result of this exception, Sri Lanka can go out to approximately 750 nautical miles from the South East and safeguard the 60 percent that would have been lost.
“It was not a case of wanting to grab as much as we could but it was a case of avoiding the consequences of application of a formula that was designed for other continental margins,” he pointed out. Sri Lanka’s off shore situation was quite different to the other margins for which the Irish formula was designed, and this was eventually accepted by the architects of that rule. Ireland became a supporter of Sri Lanka and accepted that it was not intended to cut off Sri Lanka’s continental margin.
Eventually, the exception was backed by countries like the United States, the Soviet Union, and the wide margin group called the ‘Margineers’ made up principally of advanced countries. The 1982 Convention stipulates, the Continental Margin is ipso facto and ab initio over the sovereign jurisdiction of the State.
“But one had to have a substantial amount of land based material to be able to claim this continental margin area,” Dr. Jayawardene pointed out. However, he alleged that subsequent events pertaining to handling the issue had resulted in putting Sri Lanka on the verge of losing the hard fought territory. “Some who were not part of the team that negotiated the exception for Sri Lanka found it an attractive, perhaps lucrative and interesting area to get into,” he said. He said there was a prospect of travel and exposure and the work that they did almost for free was replicated costing millions of dollars. “And the entire process became somewhat complicated,” he alleged.
Dr. Jayawardene attributed the situation to the involvement of too many parties who did not have the expertise or the experience. “The time we should have been negotiating, talking to Myanmar, India and the Maldives was wasted,” he mentioned. He said the UN had permitted Sri Lanka to make a partial submission and add more details later. “But unfortunately we delayed and our place in the queue went right down the line.”
Now it has resulted in certain differences with India and Myanmar. “The problem with the Maldives is not a major one. We were not sure of the scientific facts that there was an extension of their sediment cover into the area that was claimed by Sri Lanka.
Senior Lecturer at the Department of Public and International Law of the Faculty of Law of the University of Colombo, MAM Hakeem queried as to whether Sri Lanka had properly measured the continental slopes and the continental bed, adding that depending on aspects like the enrichment of the continental slopes and the enrichment of the continental bed and rock sedimentation, different rules applied with regard to the measurement.
As per the customary practice of the Sri Lankan State, and clauses in the UNCLOS and Annexures to it, the Sri Lankan State can extend and claim the continental shelf from 350 nautical miles up to 750 nautical miles, he noted, adding that owing to other States, namely Bangladesh and the Maldives, protesting and challenging the demarcation, the privilege afforded by the customary practice of the Sri Lankan State is no longer enjoyed by Sri Lanka, due to the conflict and dispute between the competing States.
“Sri Lanka, which is in the Bay of Bengal, has a special method to be used for delimitation. The problem is that the Sri Lankan Government’s request and demand has exceeded the cutoff point of 350 nautical miles or even 750 nautical miles and has gone beyond 1,000 nautical miles. This is not allowed. There are a number of levels of talks prior to the matter going before the ITLOS, where the court will have to decide on the issue and dispute,” Hakeem remarked.
The continental shelf concerns the seabed and not the water columns. It is drilled for petroleum and mineral resources. Crustaceans like crabs and lobsters occupy the surface of the seabed and as such are marine resources which constitute part of the continental shelf. There is minimal or almost little or no impact on fish (for an example tuna, seer and shark) due to the extension of the continental shelf.