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University of Wollongong Research Online University of Wollongong Thesis Collection 2017+ University of Wollongong Thesis Collections 2019 Overlapping Entitlements between the Continental Shelf beyond 200 Nautical Miles and the Exclusive Economic Zone Leonardo Leonardo Follow this and additional works at: https://ro.uow.edu.au/theses1 University of Wollongong Copyright Warning You may print or download ONE copy of this document for the purpose of your own research or study. The University does not authorise you to copy, communicate or otherwise make available electronically to any other person any copyright material contained on this site. You are reminded of the following: This work is copyright. Apart from any use permitted under the Copyright Act 1968, no part of this work may be reproduced by any process, nor may any other exclusive right be exercised, without the permission of the author. 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For further information contact the UOW Library: [email protected] Overlapping Entitlements between the Continental Shelf beyond 200 Nautical Miles and the Exclusive Economic Zone Leonardo Leonardo Supervisors: Professor Clive Schofield & Professor Stuart Kaye This thesis is presented as part of the requirements for the conferral of the degree: Doctor of Philosophy The University of Wollongong School of Law October 2019 Declaration I, Leonardo Leonardo, declare that this thesis submitted in partial fulfilment of the requirements for the conferral of the degree Doctor of Philosophy, from the University of Wollongong, is wholly my own work unless otherwise referenced or acknowledged. This document has not been submitted for qualifications at any other academic institution. Leonardo Leonardo 4 October 2019 i Abstract The 1982 United Nations Convention on the Law of the Sea provides coastal States with rights to a minimum legal continental shelf of 200 nautical miles from their baselines – regardless of the physical condition of the seabed – which overlaps with the entitlement to the 200 nautical mile Exclusive Economic Zone. Beyond this limit, coastal States may have jurisdiction to the outer limit of the continental margin, provided the natural prolongation of their land territories extend beyond 200 nautical miles. The Convention does not prioritise between these two limits, creating the potential for overlapping entitlements between coastal States. Indeed, this creates a present and future point of contention, as continental shelf areas seawards of 200 nautical miles represent significant potential sources of income through the exploitation of seabed resources. Moreover, as an increasing number of coastal States lay claim to a continental shelf beyond 200 nautical miles, the issue of overlapping entitlements with the Exclusive Economic Zone regime is bound to arise more frequently. This thesis investigates whether a coastal State’s entitlement to a continental shelf beyond 200 nautical miles may overlap with another State’s Exclusive Economic Zone entitlement. To this end, a documentary research process of scholarly literature has been undertaken, as well as an investigation of relevant national legislation and international documentation. Relevant decisions of international courts and tribunals have also been extensively analysed, along with the submissions of coastal States to the Commission on the Limits of the Continental Shelf. Currently, there is a consistent and geographically widespread practice of coastal States refraining from claiming a continental shelf beyond 200 nautical miles into another State’s Exclusive Economic Zone. It should be noted, however, that this general practice has not yet crystallised into a rule of customary international law. Even so, such practice does demonstrate how States are dealing with this situation, and could thus indicate an emerging rule of customary international law. ii Acknowledgments First and foremost, I would like to thank my supervisor, Professor Clive Schofield, who not only encouraged me to embark on this journey, but also guided me every step of the way. I would not be in the position of writing these acknowledgments if it weren’t for him, and I could not have asked for a better mentor. Thanks must also be extended to Professor Stuart Kaye, my co-supervisor and Director of ANCORS, for his steady leadership and guidance, and for his constant support through the peaks and troughs of this journey. Thank you to the University of Wollongong which, through its involvement in the Future Fellowship Scholarship and International Post-Graduate Tuition Award, made this research possible. A big thank you to my ANCORS family: to Myree, who made me feel welcome even before I arrived in Wollongong; to Anica, for her perpetual preparedness to help me with anything; to Brooke, who was always willing to serve as my sounding board; to Harriet and Daisy, who formed my main support system during this journey; to Hilde, for challenging my ideas and arguments; to Lowell and his family for being my adopted family when I first arrived in Australia; and to everyone else at ANCORS – thank you for your support and enduring friendship. A special thanks to Leo Pedavoli, not only for being a fantastic editor, but more importantly, for making the editing process of this thesis enjoyable. I have been privileged to work and exchange ideas with several luminaries throughout the research process, with their involvement having helped shape and influence this thesis. Among them, Professor Robert Beckman, who was responsible for directing me down the path of international law, and the Law of the Sea in particular. Professor Seokwoo Lee, who graciously invited me to collaborate with him on several projects. Ambassador Satya Nandan, who shared his wisdom, knowledge and experience in drafting the Law of the Sea Convention. I also would like to thank the following individuals for their inspiration and support: Ambassador Tommy Koh, Professor Michael Ewing-Chow, Professor Warwick Gullett, Captain Ashely Roach, Professor David Freestone, Professor Julia Xue, Larry Martin, Robert Harris, Professor Clive Symmons and Ambassador Arif Havas Oegroseno. A very special thank you to my CIL family (past and present): Tara, Sadhna, Ranyta, James, Zhen, Hao, Gerry, Youna, Sze, Denise, Jocelyn, Kristine and Monique. Finally, I would like to my family and friends for their love and encouragement, and for keeping me focused and grounded throughout this long journey. Leonardo Bernard Wollongong, 2019 iii Contents Declaration ................................................................................................................................ i Abstract ...................................................................................................................................... ii Acknowledgments.................................................................................................................... iii Contents .................................................................................................................................... iv List of Abbreviations ................................................................................................................ ix 1. Introduction ...................................................................................................................... 1 1.1. Staking the Ocean – Extending Coastal State Jurisdiction Beyond the Territorial Sea .............................................................................................................. 2 1.2. Setting the Rules – Limiting the Creeping Jurisdiction of Coastal States ................... 7 1.3. Settling the Differences – Living with Overlapping Entitlements .............................. 8 1.4. Thesis Objectives ....................................................................................................... 15 1.5. Hypothesis and Research Questions .......................................................................... 15 1.6. Methodology .............................................................................................................. 15 1.7. Thesis Structure ......................................................................................................... 17 1.8. Significance of Research ........................................................................................... 18 2. History and Development of the Continental Shelf Regime .......................................... 20 2.1. Introduction ................................................................................................................ 20 2.2. The Development of the Continental Shelf in the Early 20th Century ....................... 21 2.3. The Truman Proclamation 1945 ................................................................................ 24 2.4.

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