The enclosed IBRU emails to 525 recipients are under May 2013 at: https://www.jiscmail.ac.uk/INT-BOUNDARIES
Dear Colleagues and Friends,
Maurice Mendelson and Pierre-Emmanuel Dupont and Sam Bateman [reenclosed jointly below] are right. The functional nature of the legal regimes of both the EEZ and Continental Shelf is concisely reaffirmed in: Qatar v. Bahrain Maritime Delimitation and Territorial Questions (Merits) Judgment, ICJ Reports 2001, 93, para.170, stating that:
"More to the north [...] the delimitation to be carried out will be one between the continental shelf and EEZ belonging to each of the Parties, areas in which States have only sovereign rights and functional jurisdiction [emphasis added]." at www.icj-cij.org<http://www.icj-cij.org>.
For further reaffirmation, see 2006 Annex VII Barbados/Trinidad & Tobago Maritime Delimitation (Jurisdiction & Merits) Award, paras 175-176, 182; Hearings Day-4, 47 [Counsel Greenwood, 21 Oct 2005] and Annex VII Guyana/Suriname Guyana's Memorial, para.7.25 at: www.pca-cpa.org<http://www.pca-cpa.org>; 2012 ITLOS Bangladesh/Myanmar Bay of Bengal Maritime Boundary Delimitation Judgment, paras 361, 408-409, 468, 473 at: www.itlos.org<http://www.itlos.org>; 2012 ICJ Nicaragua v. Colombia Territorial and Maritime Dispute (Merits) Judgment, para.115, Declaration of Judge ad Hoc (former ITLOS President) Mensah, para.6 at: www.icj-cij.org<http://www.icj-cij.org>.
The territorial temptations [mostly of Latin American and some other developing States] which Evan [at: http://www.polgeonow.com/ ] mentioned in his email were inspired by the 1945 U.S. Truman CS Proclamation's concept of shelf of a costal State extending "throughout the natural prolongation of its land territory", as codified in the 1958 CSC and UNCLOS. But the question is firmly settled in both Treaty-UNCLOS and Customary International Law at the level of "only sovereign rights and functional jurisdiction" reaffirmed by the 2001 Qatar v. Bahrain Judgment and other decisions quoted supra. A few remaining States with territorialist legislation strikingly non-conforming with treaty and customary law [for various reasons, sometimes just administrative inertia] are listed in as brilliant as indispensable tool of interpretating the UNCLOS and Customary Law by:
J. Ashley Roach and Robert W. Smith, Excessive Maritime Claims, Third Edition 2012, pages 21-23 at: http://www.brill.com/excessive-maritime-claims & http://ilreports.blogspot.nl/2012/08/roach-smith-excessive-maritime-claims.html [US Limits in the Seas at: http://www.state.gov/e/oes/ocns/opa/c16065.htm ] Roach and Smith list China (along with Bangladesh, Brazil, India, Pakistan etc.) at page 22 as not permitting foreign military exercises in their EEZ, but it seems that this results not from possible differences in Mandarin and English referred to by Sam Bateman infra. China or India are perfectly well aware of only functional (limited) nature of their rights and jurisdiction in their EEZ/CS, as reaffirmed by international jurisprudence listed supra, but they are just trying to pursue their excessive claims which were long disputed at and were not endorsed by the UNCLOS III. As I already noted in separate emails the context of unilaterally pursued Annex VII Philippines v. China South China Sea Arbitration, the U.S. notorious non-accession to the UNCLOS is not too helpful in harmonizing all these kinds of non-conforming actions be it by India or China or by the Philippines.
I take this opportunity to recommend for your Libraries:
International Maritime Security Law by James Kraska, Raul Pedrozo (2013) at: http://www.brill.com/international-maritime-security-law<blocked::http://www.brill.com/international-maritime-security-law>[ [log in to unmask]<blocked::mailto:[log in to unmask]> & [log in to unmask]<blocked::mailto:[log in to unmask]> & http://www.linkedin.com/in/jameskraska/<blocked::http://www.linkedin.com/in/jameskraska/> ] & http://www.peacepalacelibrary.nl/research-guides/public-international-law-special-topics/law-of-the-sea/ and 29 April 2013 UN Piracy Seminar at: http://www.unitar.org/event/unitarola-seminar-repression-piracy-oceans-and-seasan-international-legal-framework<blocked::http://www.unitar.org/event/unitarola-seminar-repression-piracy-oceans-and-seasan-international-legal-framework> & http://www.unfalumni.org/?category_name=news<blocked::http://www.unfalumni.org/?category_name=news> & http://www.un.org/Depts/los/index.htm
ICJ North Sea Opus by current NILOS Deputy Director Prof. Alex Oude Elferink ([log in to unmask]<blocked::https://solismail.uu.nl/owa/UrlBlockedError.aspx>) (October 2013) at: http://www.cambridge.org/nl/knowledge/isbn/item7296684/The%20Delimitation%20of%20the%20Continental%20Shelf%20between%20Denmark,%20Germany%20and%20the%20Netherlands/?site_locale=nl_NL via: http://www.cambridge.org/nl/knowledge/viewalltitles/item1488/?site_locale=nl_NL<blocked::http://www.cambridge.org/nl/knowledge/viewalltitles/item1488/?site_locale=nl_NL>
Kind regards,
Barbara
UNCLOS Independent Consultant
Former Deputy Director NILOS 1985-2009
Utrecht University Faculty of Law
http://www.linkedin.com/pub/barbara-kwiatkowska/42/814/a77<blocked::blocked::http://www.linkedin.com/pub/barbara-kwiatkowska/42/814/a77>
http://www.uu.nl/nilos/onlinepapers<blocked::http://www.uu.nl/nilos/onlinepapers> & http://www.brill.nl/decisions-world-court-relevant-un-convention-law-sea<blocked::http://www.brill.nl/decisions-world-court-relevant-un-convention-law-sea> & http://catalogue.ppl.nl/DB=1/SET=5/TTL=1/CMD?ACT=SRCHA&IKT=1016&SRT=YOP&TRM=Kwiatkowska
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Van: International boundaries discussion list [mailto:[log in to unmask]] Namens Sam [log in to unmask]<mailto:[log in to unmask]>
Verzonden: Wednesday, May 22, 2013 3:36 PM
Aan: [log in to unmask]
Onderwerp: Re: [INT-BOUNDARIES] Sovereignty and the continental shelf
There is a risk sometimes of expressions being "lost in translation'. I do not speak Mandarin myself but have been told by successive Chinese students over the years that "sovereignty" and "sovereign rights" can translate as the same thing in Mandarin. It requires knowledge of the context to appreciate the difference. I have often thought that this might explain some media mis-reporting of China's claims in the South China Sea. For example, a Western journalist with limited language skills may think a Chinese commentator said that "China claims sovereignty over a large part of the South China Sea" when in fact what was said "China claims sovereign rights over a large part of the South China Sea".
Just a thought!
Sam Bateman (Dr)
Professorial Research Fellow
Australian National Centre for Ocean Resources & Security (ANCORS)
University of Wollongong
Ph +61 412 801 340
http://au.linkedin.com/pub/sam-bateman/29/657/b9a/<blocked::http://au.linkedin.com/pub/sam-bateman/29/657/b9a/>
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Van: International boundaries discussion list [mailto:[log in to unmask]] Namens Pierre-Emmanuel Dupont
Verzonden: Tuesday, May 21, 2013 2:49 PM
Aan: [log in to unmask]
Onderwerp: Re: [INT-BOUNDARIES] Sovereignty and the continental shelf
Dear Evan,
In short, under article 77 of the UNCLOS, the coastal state may exercise ‘sovereign rights’ over the continental shelf 'for the purposes of exploring it and exploiting its natural resources'. In terms of sovereignty, these 'sovereign rights' should not be equated to a 'territorial title' and in that sense the regime of the CS is a regime of special limited sovereignty (specifically related to natural resources, and further limited by the provisions of Articles 78 and 79 UNCLOS), contrary to the regime of the territorial sea - which indeed appertains to the territorial sovereignty of the coastal state.
Best regards,
Pierre-Emmanuel Dupont
Pierre-Emmanuel Dupont
Lawyer
Consultant in public international law and international dispute settlement
Senior Lecturer at the Free Faculty of Law and Economic of Paris
1, boulevard du Roi
F-78000 Versailles
France
+33 672 505 201
[log in to unmask]<mailto:[log in to unmask]>
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Van: International boundaries discussion list [mailto:[log in to unmask]] Namens Maurice Mendelson QC [log in to unmask]<blocked::mailto:[log in to unmask]>
Verzonden: Tuesday, May 21, 2013 2:55 PM
Aan: [log in to unmask]<blocked::mailto:[log in to unmask]>
Onderwerp: Re: [INT-BOUNDARIES] Sovereignty and the continental shelf
You will have noted that the expression used to describe the rights of the coastal state in Art. 77(1) of the LOSC is ‘sovereign rights’, in contradistinction to Art. 2(1), which says that the coastal state has ‘sovereignty’ over its internal waters, territorial sea and, in the case of archipelagic states, archipelagic waters. The distinction is deliberate, and dates back to the drafting of the predecessor Geneva Convention on the Continental Shelf 1958. The term ‘sovereign rights’ was deliberately chosen to indicate that, whilst the coastal state does indeed have something tantamount to sovereignty in the form of exclusive rights over the exploration of the seabed and subsoil and the exploitation of its resources (both living and non-living), it does not have (in this capacity) any rights over activities in the superjacent waters or the airspace above (Art. 78). Indeed, even where the seabed itself is concerned, the coastal state does not have rights to impede the laying and maintenance of submarine cables and pipelines, save for a right to take reasonable measures for the protection of its exploration and exploitation rights under Art. 77: see Art. 79.
When it comes to legislation & treaties referring to a state’s ‘territory’, it is therefore desirable to indicate whether the term includes such things as the cont. shelf and EEZ. So far as litigation is concerned (national, regional and wider), if there is no pertinent definition it seems to depend very much on the context whether the CS is regarded as ‘territory’ or not.
I hope this helps.
Prof. Maurice Mendelson, Q.C.
Blackstone Chambers Barristers
Blackstone House
Temple
London EC4Y 9BW
England.
Tel. +44 20 7583 1770; fax +4420 7822 7350; email [log in to unmask]<blocked::mailto:[log in to unmask]>
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Date: Tue, 21 May 2013 20:17:24 +0800
From: [log in to unmask]
Subject: Sovereignty and the continental shelf
To: [log in to unmask]
Dear Colleagues,
As you probably know, the UN Convention on the Law of the Sea (UNCLOS) provides that states may exercise control over the seabed extending out from their coasts, beyond the 12 nautical mile limit of the territorial sea and, given the right conditions, beyond the limit of their 200 nautical mile exclusive economic zones (EEZs) as well. However, I have a question regarding the nature of the regime of the continental shelf in terms of sovereignty. After reading over the text of the UNCLOS, I still do not understand: Is the continental shelf is to be considered a regime of special limited sovereignty, like the EEZ, or is it to be considered actual sovereign territory of the state as are the territorial waters?
I am quite sure that there are others on this list who know the UNCLOS and international maritime law much better than I do - so who can tell me the answer to this question? Or if the question is not settled, is there ongoing discussion on the matter?
Thank you very much,
Evan Centanni
Political Geography Now
www.polgeonow.com<http://www.polgeonow.com/>
Twitter: @polgeonow<https://twitter.com/PolGeoNow>
