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AREEJ FINAL THESIS to PRINT.Pages The application of Article 76 of the United Nations Convention on the Law of the Sea on the Extended Continental Shelf with Special Reference to Malaysia Thesis submitted for the degree of Doctor of Philosophy By Areej Torla School of Law Brunel University October 2012 Abstract The purpose of this study was to clarify the ambiguity in the law relating to the extended continental shelf in Article 76 of the 1982 United Nations Convention on the Law of the Sea. Another aim was to study the application of the law in a more focused part of the world, the region of East Asia, and in particular, Malaysia. The study also sought to propose solutions to issues relating to the extended continental shelf. The history of the law relating to the continental shelf, the codification of the law, and the enforcement of the law by the Commission on the Limits of the Continental Shelf is presented. Besides that, Article 76 was also thoroughly discussed in order to identify the problems involved. Besides that, the two biggest issues which determine the outer limits of the continental shelf are examined. These are issues relating to ridges and submarine elevations and the application of the foot of continental slope provisions. The study examined the problems involved with the legal and scientific interface found in Article 76 and addressed them by referring to the legislative history of Article 76, State practice and the practice of the Commission. The continental shelf in the East Asian region is also analysed in order to provide an overview of the continental shelf issues in the region. Special reference to Malaysia is made as a State that has made a submission on its outer limits of the continental shelf. A thorough analysis was made based on the findings made in this study. This study also explored possible solutions to the continental shelf issues discussed. !ii Acknowledgments Although this journey was not an easy one, I was blessed with the help of many individuals. I would like to gratefully thank all those persons that have contributed to make this effort a success. My most sincere acknowledgement and gratitude goes to Dr. Andreas Dimopoulos, for his academic supervision, professional guidance and support. I would also like to acknowledge my first supervisor, the late Professor Kaiyyan Kaikobad, who had guided and supervised me in the earlier years of my research. I wish to acknowledge the scholarship awarded to me by the International Islamic University Malaysia and the Government of Malaysia. I would also like to extend my heartfelt gratitude to my parents Torla and Shafikah whose encouraging words have driven me throughout these years and to family and friends who have supported me all this while. My special thanks go to Lutfi who has gone the extra mile to help me complete this thesis. Finally, my biggest thanks goes to my husband, Aiman, for his love, encouragement, patience and support throughout the years, and our children, Amru and Wafa, who are my inspiration. !iii Table of contents Abstract ii Acknowledgements iii Table of contents iv Chapter One: Introduction 1.1 Introduction 1 1.2 The research question 2 1.3 The objectives of the study 3 1.4 Overview of chapters two to nine 5 PART 1 Chapter Two: The evolution of the continental shelf regime 2.1 Introduction 8 2.2 The concept of the continental shelf under international law 8 2.3 The continental shelf: A historical perspective 10 2.3.1 The seabed prior to the 1945 Truman Proclamation 10 2.3.2 The Truman Proclamation of 1945 14 2.3.3 Other unilateral proclamations 16 2.3.4 Claims based on adjacency and distance 18 2.3.5 Overlapping claims 19 !iv 2.4 The principle of natural prolongation 21 2.5 Concluding remarks 31 Chapter Three: Codification of the law 3.1 Introduction 33 3.2 The Committee of Experts 34 3.3 The International Law Commission 35 3.4 The First United Nations Conference on the Law of the Sea 35 3.5 The 1958 Geneva Convention on the Continental Shelf 36 3.6 The Third United Nations Conference on the Law of the Sea 40 3.7 The 1982 United Nations Convention on the Law of the Sea 43 3.7.1 Classification of maritime zones 45 3.7.2 The juridical and scientific concepts of the continental shelf 50 3.7.3 Overview of Article 76 52 3.7.4 Formulae for delineation 60 3.8 Concluding remarks 65 Chapter Four: Enforcement of Article 76 4.1 Introduction 67 4.2 The Commission on the Limits of the Continental Shelf 68 4.3 Negotiating history for the establishment of the Commission 75 4.4 The Scientific and Technical Guidelines 78 !v 4.4.1 Drafting history of the Guidelines 82 4.4.2 The effect of the Guidelines 84 4.5 The recommendations of the Commission 89 4.5.1 The effect of the recommendations 90 4.6 Dispute settlement mechanism 97 4.7 The ping-pong process 99 4.8 Concluding remarks 100 Chapter Five: Ridges and submarine elevations 5.1 Introduction 102 5.1.1 Geography 104 5.1.2 Analysis of issues 106 5.2 Legislative history of the ridge provisions 109 5.2.1 Conclusion 127 5.3 State practice 132 5.3.1 Conclusion 152 5.4 The practice of the Commission 154 5.4.1 The Scientific and Technical Guidelines 154 5.4.2 The recommendations of the Commission 159 5.4.3 Conclusion 163 5.5 Concluding remarks 165 !vi Chapter Six: Foot of the continental slope 6.1 Introduction 170 6.1.1 Geography 171 6.1.2 Analysis of issues 172 6.2 Legislative history 176 6.2.1 Conclusion 192 6.3 State practice 195 6.3.1 Conclusion 218 6.4 The practice of the Commission 220 6.4.1 The Scientific and Technical Guidelines 220 6.4.2 The recommendations of the Commission 228 6.5 Concluding remarks 231 PART 2 Chapter Seven: The continental shelf in East Asia 7.1 Introduction 239 7.2 Baselines 240 7.3 Insular features 245 7.3.1 Islands, rocks and low-tide elevations 246 7.3.2 Artificial islands 248 7.4 The East China Sea 255 7.5 The Yellow Sea 263 !vii 7.6 The Philippine Sea 263 7.7 The South China Sea 268 7.8 Concluding remarks 273 Chapter Eight: The extended continental shelf of Malaysia 8.1 Introduction 274 8.2 The historical setting 275 8.2.1 The map of 1979 279 8.3 The current law 282 8.4 The geographical setting 284 8.5 Joint submission in respect of the southern part of the South China Sea 294 8.5.1 Technical aspects of the joint submission 297 8.5.2 Geological background 301 8.5.3 The Northwest Borneo Trough 303 8.5.4 Analysis 305 8.6 Concluding remarks 322 Chapter Nine: Conclusions 9.1 Conclusions 324 9.2 Possible solutions for East Asia 333 9.3 The extended continental shelf of Malaysia 338 !viii Annexes Annex 1:Figure showing the maritime zones under the 1982 Convention 342 Annex 2: Figure showing the possible morphological features of a continental margin 343 Annex 3: Figure showing the foot of the continental slope, the legal continental shelf and the Area 344 Annex 4: The Malaysian 1979 Map (Sheet 1) 345 Annex 5: The Malaysian 1979 Map (Sheet 2) 346 Annex 6: The outer edge of the continental margin and the defined area in the southern part of the South China Sea 347 Annex 7: Map of the East Asian region 348 Annex 8: Map of Malaysia 349 Annex 9: Map of the East China Sea 350 Annex 10: Map of the Yellow Sea 351 Annex 11: Map of the Philippine Sea 352 Annex 12: Geographical location of the Benham Rise 353 Annex 13: Map showing the location of the South China Sea 354 Annex 14: Figure showing the location of the Spratly and Paracel Islands in the South China Sea 355 Annex 15: Figure showing the plate-tectonic framework of Southeast Asia 356 Annex 16: Figure showing the classic continental margin 357 !ix Bibliography I. Conventions, Legislations, Proclamations and Declarations 358 II. Table of cases 363 III. Submissions and preliminary information 365 IV. Recommendations and documents of the Commission 366 V. United Nations General Assembly Resolutions 370 VI. Third United Nations Conference on the Law of the Sea Official Records 370 VII. Other international instruments and documents 371 VIII. Books 371 IX. Journal Articles 379 X. Conference papers and online articles 382 XI. Other sources 385 !x This page intentionally left blank !xi Chapter One: Introduction 1.1 Introduction Ever since the advancement of technology opened the eyes of nations to the treasures that lie beneath the seabed, States have been striving to maximise dominion over the sea in the hope of acquiring as much of the wealth buried under the sea as possible. With the struggle for economic gain comes the rivalry between States and hence, the need for a law regulating the exploitation of the seabed. After a series of unilateral proclamations declaring rights over the seabed and after the Geneva Conventions, the 1982 United Nations Convention on the Law of the Sea was born. The Convention is a remarkable document that is comprehensive and covers a large part of the world’s oceans. It covers a wide range of issues such as delimitation, marine research, economic issues and settlement of disputes to name a few.
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