KAMALIKA  PIERIS

United Nations held its first Conference on the Law of the Sea (UNCLOS I)  in 1956.The second Conference (UNCLOS II)  was held in 1960. The Third United Nations Conference on the Law of the Sea (UNCLOS III)   was convened in 1973  and went on till. 1982.   The United Nations Convention on the Law of the Sea (UNCLOS) prepared in 1982, came into force in 1994.

This Convention let to the creation of three institutions  dealing with  the  Law of the Sea.  First,

The Commission on the Limits of the Continental Shelf, to consider the limits declared by a State and make recommendations thereon Second the International Sea-bed Authority, to see to management of the mineral resources of the deep seabed beyond national jurisdiction. Third, International Tribunal for the Law of the Sea consisting of 21 judges empowered to resolve any dispute concerning the Convention

UNCLOS III is important because it greatly increased the sea area which came under the control of sovereign states.  A state was now in control of the sea around it, up to 200 nautical miles. This sovereignty extended to the air space over the territorial sea as well as to its sea  bed and subsoil. This right was however, subject to the conditions in the UNCLOS Convention and the rules of international law.

A coastal state  now had control over four extents of sea, measured from a carefully defined  baseline. The four extents of sea were Internal waters, Territorial waters, Contiguous Zone and Exclusive Economic Zone.

Internal waters  meant all water and waterways on the landward side of the baseline. Foreign vessels have no right of passage within internal waters.

.Territorial waters   extended to 12 nautical miles (22 kilometers) from the baseline. The state could regulate use of this area and could use any resources in it. However,   vessels belonging to other state   had the right of innocent passage through territorial waters.

Contiguous zone consists of a further 12 nautical miles beyond the Territorial waters. . A state can enforce laws in four specific areas in this zone. The areas were customs, taxation, immigration, and pollution. 

Exclusive Economic Zone  extended for200 nautical miles from the baseline. Within this area, the coastal nation has sole exploitation rights over all natural resources. Foreign nations could travel on this sea and could fly in its airspace, but subject to regulation from the coastal state concerned. Foreign states could  lay submarine pipes and cables in this Zone.

On becoming a Party to the 1982 United Nations Convention on the Law of the Sea (UNCLOS), Sri Lanka, as an island State, was required to establish its maritime boundaries in accordance with the rules prescribed by that Convention.

During the  negotiations Sri Lanka established  its boundaries for the different areas. the territorial limit   of 12 miles  had been declared in Sri Lanka’s  Maritime Zones Proclamation of January 1977. This  was confirmed in the 1982 Convention. The 12 miles was drawn from the baseline and is the low water mark of ordinary spring tides along the coast. The other three areas were also no problem.

What remained to be established was the extent of Sri Lanka’s Continental Shelf. The Convention sets limits to the extent of the ‘Continental Shelf’ that a State may legally claim, together with its natural resources, e.g. an outer limit of 350 miles from the baseline.

Because of the peculiar configuration of Sri Lanka’s Continental Shelf, application of the Convention’s ordinary depth and distance limits to the Continental Shelf would have deprived Sri Lanka of submarine areas and their natural resources in comparison with the extent permitted to other coastal States under the Convention. 

The actual extent of sea that a  state can claim was  based on  Article 76  of the Convention,, which said The continental shelf of a coastal State comprises the seabed 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 where the outer edge of the continental margin does not extend up to that distance. A baseline  is defined as the low water line of the maritime country that is normally used for surveying purposes.

A maritime state can demarcate its outer edge of the continental margin using one of two formulae provided in paragraph 4(a) of the Article 76.

The first formula is known as the sediment formula or Irish formula and it allows a maritime state to claim the adjacent sea area up to a boundary where the thickness of oceanic sediments is 1% of the distance measured from the foot of the slope. This boundary should not exceed 350 nautical miles from the baseline mentioned above.

The second formula which is known as the Hedberg formula  states that a maritime country can claim the adjacent sea area up to a distance not more than 60 nautical miles from the foot of the continental slope. This boundary should not exceed 100 nautical miles. In both these formulae, the foot of the continental slope means the point at which the maximum change in slope occurred.

The Sri Lanka team  found that Article 76 of the Convention would, if applied to Sri Lanka, result in the loss of more than half of its continental shelf. They informed the Conference. The Conference then prepared a separate document to be attached to the Convention and binding on all countries.

That document, negotiated by Sri Lanka with the interested states, was adopted by all the States at the Conference, and now forms Annex II to the Final Act of the Third United Nations Conference on the Law of the Sea, and bears the title ‘Statement of Understanding’ (SOU). Sri Lanka is entitled to claim for an extended area of seabed where the thickness of the sediment layer exceeds one Km.

 A special method of establishing maritime boundaries for countries south of the Bay of Bengal was agreed on. This allowed Sri Lanka a special calculation applicable to its adjacent submarine areas and resources, that would not be governed by the Convention’s ordinary limits and conditions, but only by the limits and conditions contained in that document.

Conditions in that document were, at India’s request, extended to India as a ‘neighboring State’, where the configuration of its Continental Shelf resembled that of Sri Lanka. The Conference agreed that the SOU should extend to India as a ‘neighboring State’ in the southern part of the Bay of Bengal.

Government of Sri Lanka  then   set up a special project under the purview of the Ministry of Foreign Affairs and the Ministry of Fisheries and Aquatic Resources to carry out scientific surveys related to the demarcation of maritime boundaries of Sri Lanka. An inter-departmental Committee titled the National Ocean Affairs Committee (NOAC) consisting of scientific and legal experts was set up.

This committee  used experts from the United States, Russia, Norway, New Zealand) as well as Sri Lankan experts. With the help of a group of dedicated geologists, geophysicists and hydrographers, some of whom were working on a voluntary basis, initial planning of the seismic survey was carried out.

This involved determining the approximate boundary of the outer edge of the continental margins using results of single channel seismic work carried out over the region by geophysical institutes in the USA, Germany and Russia.

NOAC also used data from UK’s DEOCOM project (Delimitation of the Outer Edge of the Continental Margin of Sri Lanka) of 2007 and the Deep Sea Drilling Project (DSDP) of the USA.  To this was added the interpretation of satellite gravity anomalies carried out by local geophysicists. According to the results of these studies Sri Lanka can claim an oceanic area almost equal to twenty-five times of its land area.

Sri Lanka’s written   submission to CLCS on the extent of its Continental Shelf    was prepared by a group of local scientists and legal experts with the assistance of several foreign experts who had been involved in the preparation of similar claims for their own countries.

 The deadline imposed by the UN Commission for maritime countries to make their submissions was 13th May 2009. Sri Lanka  managed to make its submission on 8th May 2009. Sri Lanka‘s  submission, consisting of considerable volume of documents and maps, was deposited with the Secretary-General of the United Nations, on 8 May 2009 within the prescribed time schedule, observed Pathfinder Foundation.

However, over forty two maritime countries had submitted their claims before Sri Lanka  and the date on which Sri Lanka’s  claim will be considered by the UN Commission on the Limits of the Continental Shelf (CLCS) will be delayed as a result of this. It is estimated that Sri Lanka’s  claim will not be taken up for consideration before 2025.

We should have a group of competent Sri Lankan scientists and legal experts ready by then to defend our claim said D.A. Tantrigoda. Sri Lanka can satisfy the criteria  given in Annex-II. For this it is necessary to determine the boundary at which thickness of sediments lying in the Indian Ocean region around Sri Lanka is one kilometer. Multi-channel seismology was considered the most suitable method for this purpose. The gravity and seismic data collected around Sri Lanka during the survey carried out by the DEOCOM can be used for this.

 Sri Lanka must take urgent steps to train and equip a new generation of negotiators, who would successfully argue Sri Lanka’s case before the CLCS, when Sri Lanka is invited to present its case, said Pathfinder Foundation.

MCM Pinto, said that  the Sri Lanka team handing this matter in the UN should be recognized. It was their tireless efforts that secured for Sri Lanka and India the specific method of establishing the outer edge of their continental shelves. He  named first of all,  Ambassador H.S. Amerasinghe, the first President of the Third UN Conference on the Law of the Sea.

Dr. Hiran Jayewardene,  recognized the inequity that would be caused by application to Sri Lanka of the continental shelf limits provided for in Article 76, and convinced the Conference that the solution lay in adoption of the Statement of Understanding” and its incorporation in the 1982Convention through Article 3 of Annex II to the Convention which established the Commission on the Limits of the Continental Shelf, said Pinto.

 Dr. Jayewardene continued his pioneering role by establishing the National Aquatic Resources Agency (NARA) of Sri Lanka, and  also functioned as Secretary-General of the Indian Ocean Marine Affairs Co-operation organization. Three other members of Sri Lanka’s delegation to the Conference   should also be remembered ,said Pinto,  Ambassadors Susantha de Alwis, Karan Breckenridge and Rodney Vandergert..  ( Continued)