I Made Andi Arsana
Department of Geodesy and Geomatic Engineering,
Gadjah Mada University,
QEII Research Fellow at the Australian National Centre
for Ocean Resources and Security,
niversity of Wollongong, Australia.
The United Nations Law of the Sea Convention (LOSC) 1982 indicates that a coastal State may make a claim to continental shelf extending beyond 200 nautical miles (Extended Continental Shelf, ECS). In order for a coastal State to exercise its sovereign rights over the ECS, a submission containing the outer limit of its continental shelf should be deposited to the Commission on the Limits of the Continental Shelf (CLCS) trough the Secretary-General of the United Nations.
Indonesia is one of the coastal States, which may potentially make such a claim to continental shelf beyond 200 nautical miles from its baselines. Preliminary studies also suggest that Indonesia may be able to advance such claims in several locations. At the time of writing, Indonesia is currently preparing for its ECS submission, with a deadline of 13 May 2009. The present paper is aimed at outlining the development of Indonesia's ECS claim, including analysis of the current status of the submission preparations as well as the challenges that Indonesia is facing. While giving particular emphasis to technical aspects, this paper will, necessarily, discuss legal issues associated with Indonesia's ECS submission.
This paper generally covers the principles related to the definition of the outer limits of the ECS, with an emphasis on the formulae and constraints as set out in Article 76 of LOSC, technical aspects of ECS definition, and the latest status and problems related to Indonesia's ECS submission. Wherever possible, this discussion is also intended to provide possible options to overcome the identified problems.
Article 76 of the United Nations Law of the Sea Convention (LOSC) provides that that a coastal State may claim continental shelf beyond 200 nautical miles (M) from its baselines (Extended Continental Shelf, ECS) through a submission to the Commission on the Limits of Continental Shelf (CLCS) made via the Secretary-General of the United Nations. In 1999, the CLCS adopted technical guidelines on how a submission for ECS rights should be made by a coastal State. A meeting of the State Parties to the LOSC also decided in 2001 that, for States ratifying the LOSC before 1999 the deadline for submission of such claims should be ten years following the adoption of the CLCS guidelines.
Indonesia is one of the coastal States that has the possibility of claiming ECS rights, with a deadline for submission of 13 May 2009. At the time of writing, Indonesia yet to make such a submission. The relevant Indonesian authorities have, however, been engaged in intensive preparations towards that end over a considerable period of time. In the meantime, the CLCS has received several submissions from (in chronological order): Russia; Brazil; Australia; Ireland; New Zealand; a joint submission by France, Ireland, Spain, UK, Norway and France. Further submissions are expected in the near future.1 This paper focuses on the ECS submission of Indonesia by examining its progress, latest status and problems. Where applicable, possible solutions to identified problems will be offered.
2 The Definition of the Continental Shelf
According to Article 76(1) of the LOSC, the continental shelf:
"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 M 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."
An important distinction to note in this context is that, with regard to the continental shelf, a coastal State exercises sovereign rights, rather than sovereignty. Thus, with regard to the specific issues over which the coastal State has sovereign rights on the continental shelf, the coastal State is "sovereign", but beyond those defined concerns, the coastal State has no special rights. LOSC Article 77(1) specifies that coastal states have sovereign rights on the continental shelf "for the purpose of exploring it and exploiting its natural resources."
2.1 Historical and Legal Perspectives
It is worth noting that the so-called "Truman Proclamation" of 1945, by the President of the United States, Harry S. Truman, is generally considered to be the first explicit claim by a coastal state over the continental shelf. This assertion of coastal State rights acted as a catalyst for further claims, for example those of Chile and Peru in 1947, and Ecuador in 1950. Heidar (2004) asserts that these three South American Countries claimed full sovereignty over the continental shelf out to 200 M, even though they do not, in fact, seem to physically possess continental shelf to that distance offshore. These claims, symptomatic of what has been termed "creeping coastal state jurisdiction", provoked resistance from other States. Nonetheless, this type of State practice can be considered as the starting points for the development of the law of the sea relating to the continental shelf and, ultimately, development of the exclusive economic zone (EEZ) concept. A further important development that took place in parallel with these changes in State practice was the rapid advancement in technology, especially offshore drilling techniques, which enabled coastal States to have greater control over the shelf resources beyond territorial sea in deeper waters (Heidar, 2004).
To forestall excessive claims by coastal States and resolve uncertainties, efforts were made to codify the international law rules relating to the continental shelf. The first successful attempts at codification led to the Geneva Convention on the Continental Shelf. Article 1 of this Convention defined the continental shelf as being those submarine seabed and subsoil areas adjacent to a coast out to "a depth of 200 metres or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources" of the continental shelf. This definition of the limits of the continental shelf on the basis of either depth or exploitability has, however, been superseded by the provisions of Article 76 of LOSC.
Article 76 of the LOSC governs legal definition of continental shelf, which goes beyond its original geological definition. The definition of continental shelf, as previously mentioned, can be found in Article 76(1) of the LOSC. It is worth emphasising that a coastal State, without active claim, is entitled to a 200-nautical mile continental shelf provided that there is no overlapping claim with its neighbours (LOSC, Article 77). An active claim/submission is required for the outer limit beyond 200 M, which its definition is governed by paragraph 4, 5 and 6 of Article 76. This subsections discusses several important points concerning definition of outer limits of continental shelf: baselines, foot of slope, formulae lines (Gardiner and Hedberg Lines), and constraints (350 M line and 2500 isobath + 100 M).
Baselines represent the starting point from which territorial sea and other maritime jurisdictions (contiguous zone, EEZ and continental shelf) are measured. There are commonly three types of baselines: normal, straight, and archipelagic baselines2. Baseline is important in defining the outer limits of continental shelf as it is clearly important to determine the 200 M limit. Furthermore, one of the constraint lines is based on the distance of 350 M from baselines (see 126.96.36.199).
2.1.2 Foot of Slope
Foot of slope (FOS) has to be defined prior to the definition of the outer limit of continental shelf. FOS is the point of maximum change in gradient of continental's base (Article 76(4(b)) as described in Figure 1. FOS is important to be identified as it is used as the reference in defining Gardiner and Hedberg lines (see 2.3.3)
The outer limit of continental shelf is defined by either one or both of formula described below:
188.8.131.52 Gardiner Lines
Gardiner line, as described in Article 76 (4(a(i))), is a line delineated by reference to the outermost fixed points at each of which the thickness of sedimentary rocks is at least 1 per cent of the shortest distance from such point to the FOS. In other words, the outer limit of continental shelf can be defined by a line delineating the seabed with sediment thickness of at least 1 percent. The percentage is the ratio between sediment thickness at a particular point and the distance of that point to FOS as described in Figure 1 (TALOS3, 2006).
Figure 1 Foot of Slope (TALOS, 2006)
184.108.40.206 Hedberg Line
Hedberg line is a line delineated by reference to fixed points not more than 60 M from the FOS. As stated in TALOS (2006), it is possible to construct this feature using graphical techniques; however for the sake of accuracy it is strongly recommended by TALOS (2006) that geodetic software be used to compute the coordinates. The line will be generally in the same direction with the FOS.
The above two criteria (Hedberg and Gardiner Lines) allow a coastal State to define its outer limit of continental shelf. However, it is also stated in Article 76 of the LOSC that it should also comply with two constraints as described below. These two constraints apply in conjunction and have the same significance.
220.127.116.11 350 M line
The idea of establishing this constraint is to prevent coastal States for exercising excessive claim of continental shelf. In case the above two criteria (Gardiner and Hedberg Lines) allow a coastal State to claim continental shelf to such a distance far from baseline, the claim should then be limited by 350 M line from its baseline. The line is best determined by geodetic computations to develop an envelope of arcs that have a radius of 350 M and are centred on the territorial sea baseline (see Figure 2).
18.104.22.168 2500 Isobath + 100 M.
The second constraint says that the outer limit of continental shelf should not exceed the line of 2500 isobath + 100 M. This line is measured 100 M from a line connecting points with 2500 metre depth from chart datum (see Figure 2). Together with 350 M constraint, this constraint is designated to prevent excessive claim made by coastal States.
Figure 2 Outer Limits of Continental Shelf (adapted from TALOS, 2006)
By employing formula and constrains, the outer limits of continental shelf can be determined as described in Figure 2. It can be identified that two lines were drawn based on the criteria of 1% sedimentary rock thickness and 60 M from FOS forming the outer limit of coastal States continental shelf. The limit may be the combination of the two lines where it is possible to choose the most advantageous outer limits formed by the two. However, a coastal State still need to consider the other two constraints as previously explained. The outer limits formed by those two criteria (Gardiner and Hedberg lines) should not go beyond 350 M from baseline nor the 2500 isobath + 100 M line.
2.2 Commission on the Limits of Continental Shelf
Pursuant to Article 76, Appendix II to the LOSC was established to accommodate the establishment of a commission dealing with submission of ECS by coastal States called Commission on the Limits of Continental Shelf (CLCS, the Commission). This section discusses the membership, role and functions of the Commission, and submission procedure made by coastal States.
The Commission consists of 21 experts in the area of Geology, Hydrography, Oceanography and Geodesy, which are equitable in terms of geographical representation. The first election was conducted in 1997 for a service period of 5 years. In June 2007, another election was made for 2007-2012 period. The member candidates are nominated by their States and/or other States through General Secretary of the United Nations and will serve in their personal capacities4.
2.2.2 Roles and Functions
The roles and functions of the Commission are found in Article 3 of Annex II to the LOSC. The Commission is responsible for considering submission made by coastal States, making recommendation concerning the submission and to provide scientific and technical advice, if requested by the coastal States concerned during the preparation of a submission. However, as admitted by the Commission, no coastal State has made any request for technical/scientific assistance concerning ECS submission.
2.2.3 Submission Procedure
Procedures for submission can be found in article 76(8, 9) of LOSC saying that the outer limits should be submitted to the Commission (paragraph 8). It is then the role of the Commission to make recommendations to the coastal State with regard to the submission. . In this context some uncertainties have arisen which has provoked debate5. Paragraph 9 adds that the submission shall be accompanied with charts and relevant information, including geodetic data, permanently describing the outer limits of its continental shelf that shall be deposited with the Secretary-General of the United Nations and The Secretary-General shall give due publicity thereto. Detailed procedure of submission is covered in the Rules of Procedure of the Commission (CLCS/40)6 containing ten rules (Rules 45-54).
3 Indonesian Submission of the Outer Limits of Continental Shelf
While several different opinions have been introduced with regard the number of coastal States that are possible to submit the outer limits of their Extended Continental Shelf (ECS), Indonesia is one of the prospective States. Indonesia will be one of the States with the earliest deadline of submission: 13 May 2009.
3.1 Potential ECS and Benefit of the Submission
One useful starting point for analysis is publicly available data. For example, the United Stated Geological Survey (USGS) provides technical resources showing potential ECS claims by coastal States globally. Even though this is only a global study, it might be good for a starting point. The study reveals that Indonesia can potentially claim ECS in two different locations: west of Sumatera and south of Java/Bali/Sumba. Due to the small scale of the map published by USGS, it is difficult to precisely tell the specific area. In addition, as disclaimed by USGS, these are potential boundaries, used here as a guide, and are in no way to be definitive or final.
Indonesian scientists started preparations for Indonesia's ECS submission at an early stage (from 2001). This was only two years after the adoption by the Commission of its Scientific and Technical Guidelines concerning submission of the outer limit of ECS. The preparation has been started eight years before the submission has to be made.
Research and desktop studies conducted by Indonesian experts show that Indonesia may claim ECS in three different areas namely the west of Sumatera, to the south of Sumba Island, and the north of Papua (Sutisna et. al., 2005). However, this is not an official result of Indonesian institution, but more as result of independent scientific assessment. Since then, National Coordinating Agency for Surveys and Mapping (Bakosurtanal) of Indonesia has been conducting serious preparation for submission.
3.2 Towards a Submission to the CLCS
Defining the limits of continental shelf beyond 200 M has been one of the concerns addressed in the Two-year Performance Report of the Government of SBY-JK (Susilo Bambang Yudoyono – Jusuf Kalla)7. This is viewed by the government as one of the important agendas in establishing and maintaining national security and stability. As it is highlighted in the report, Indonesia is currently conducting serious preparation toward the submission of ECS.
3.2.1 Preparation of Submission
Technical and legal workshops and meetings have taken place involving government officials and academics. Three submission organizations were established namely the Technical Core Group (TCG) consisting of multi-disciplinary members from related institutions and universities, the National Steering Committee and the Legal Group. TCG main tasks are to provide and collect supporting scientific data set such as geodetic positioning, sea level, bathymetric, seismic, gravity and magnetic data through field surveys and other sources. The data sets are than processed, assembled, analysed and visualized on the maps in order to provide the technical documentation for submission. The preparation for the submission with regard to legal aspects has been undertaken by the Legal Group led by The Ministry of Foreign Affairs.
3.2.2 Results of Work and Latest Development
At the time of writing, Indonesia has not yet submitted the outer limits of its ECS to the Commission. However, it is anticipated that this will take place in the relatively near future. In this context, it is possible that Indonesia will opt for a partial submission for several locations. However, the precise locations have not yet been confirmed. With regards to technical aspects, the Technical Core Group, with Bakosurtanal as one the main participants, has been conducting technical preparation and assessment and has produced submission drafts. Being drafts, the document are available for internal discussion only and have not yet been released for public consumption.
In preparation for submission, field surveys were conducted to maritime areas that are predicted to have potential ECS entitlement. Three field surveys have been conducted for the last ten years (1996-2006). The first survey was for the area to the west of Sumatera (in 1996 and 1997) through the Digital Marine Resource Management (DMRM) project. This was a bathymetric survey to verify the sedimentary rock thickness in the area to the west of Aceh, which was identified as one of the areas with potential ECS. The survey was conducted by Indonesian survey team and international scientists using German Sonne – BGR Ship. Figure 3 shows the map depicting the location of survey to the west of Sumatera8. The figure shows Indonesian archipelagic baseline, 2500 m isobath + 100 M, 350 M line, and proposed new survey.
The second survey (3-21 October 2006) was a another bathymetric survey for the area to the south of Nusa Tenggara using Baruna Jaya VIII Ship to determine the foot of the continental slope (FOS). The survey used single beam echosounders for the depth of more than 1000 m, and multibeam echosounder for less. The latest survey was conducted on 11 October-11 November 2006 using German Sonne – BGR Ship. This was a seismic survey to obtain data and verify the thickness of sedimentary rock on the seabed area to the south of Nusa Tenggara. Team of the third survey was composed of BAKOSURTANAL, PPGL, Geotek-LIPI, and Agency for Marine and Fisheries Research (BRKP).
Figure 3 New survey route for the area to the west of Sumatera (Bakosurtanal, 2006)
3.2.3 Challenges and Solution
Preparing submission for ECS is by no mean an easy task. Many challenges exist to face including technical, human resources, financial, and political matters. Conducting field survey seems to be to most challenging issue in terms of technical perspective. It is understood that Indonesian team confronted some technical difficulties including the availability of capable survey ship and other technical equipments for field data acquisition. This challenge may be overcome by collaboration with external parties such as German Sonne – BGR and other institutions, which have required technical capabilities. However, the budget and confidentiality issues should be taken into account.
The availability of capable human resources also may be an issue of concern. Even though Indonesia has many excellent scientists, notably in Bakosurtanal, Indonesian Institute of Sciences (LIPI), Marine Geology Institute (PPGL), and several universities, it seems that the coordination of people from different institutions can be difficult to some extents. This was highlighted by Dr. Khafid (Bakosurtanal) in his presentation in Yogyakarta on 4 May 2005.
In a financial perspective, two challenges are to face: cost for accomplishing the submission and question concerning economic benefits in return. Understanding that Indonesia is currently facing many other important challenges and demands on the national budget are pressing, it might be true that the cost of the carrying out the preparations, including the field surveys and document preparations, is high. Some opine that for a developing country like Indonesia, it would be wiser to spend the money on other sectors that are more important, such as healthcare and education. This argument may appear valid at first sight. It is true that a coastal State should not carelessly lavish money on something that has no benefit. However, the benefits of an ECS submission are unlikely to be felt straight away. It is not something that can be judged beneficial instantly. Rather, an ECS submission is an investment for the future (Arsana and Putri, 2006).
Notwithstanding the importance of technical and legal aspects of ECS submission, there are also, inevitably, also political dimensions to the issue. In particular, difficulties may be encountered in convincing the House of Representative members (Dewan Perwakilan Rakyat, DPR) regarding the importance of the ECS submission.
3.2.4 Potential Boundary Disputes and Resolution
Potential boundary disputes related to Indonesia's ECS claim will not become wholly clear until official submissions are made. Nonetheless, the location of Indonesia's ten neighbours, with which Indonesia needs to conclude maritime boundaries, can be taken into account (Figure 4).
Figure 4 Indonesia and its ten neighbours
For example, Indonesia is likely to claim ECS to the south of Sumba and Bali (Bakosurtanal, 2006). Therefore, this claim should consider the existing agreement between Indonesia and Australia made in 1971, 1972 and 1997. To some extent this may constrain or curtail Indonesia's potential ECS claims.
Meanwhile, it seems that for the area to the west of Sumatera, Indonesia's ECS will not cause any dispute as there is no potential maritime claim by other States in the area (see Figures 3 and 4). However, as previously mentioned, disputes can be better identified when the official submission have been made. In case there are boundaries to delimit beyond 200 M, it should be pursuant to Article 83 of the LOSC concerning delimitation of continental shelf. Carleton (2000) asserts that delimitation of maritime boundary beyond 200 M is solely the responsibility of concerned States and it should be in accordance with the LOSC and its corresponding annexes.
4 Concluding Remarks
As a coastal State with potential ECS submission, Indonesia is currently preparing for its submission to CLCS. No submission has been made at the time of writing but significant progress has been apparently achieved. Challenges faced by Indonesia include technical, financial, and political matters which need serious consideration by the submission team. Considering that many tasks must be completed before the submission deadline, it is clear that serious and sustained research and preparation needs to be carried out by mutual collaboration among assigned teams.
We acknowledge the Australian National Centre for Ocean Resources and Security (ANCORS) at the University of Wollongong for research facilities and UN-Nippon Foundation of Japan for the fellowship with which the research is made possible.
- —–, (2006). Two-year Performance Report of the Government of SBY-JK (Laporan Kinerja Dua Tahun Pemerintahan SBY-JK)
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