DSpace at VNU: Coastal states in the South China Sea and submissions on the outer limits of the continental shelf

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Coastal States in the South China Sea
and Submissions on the Outer Limits of
the Continental Shelf
a

Nguyen Hong Thao & Ramses Amer
a

b

Faculty of Law , Vietnam National University , Hanoi, Vietnam

b

Department of Oriental Languages , Stockholm University ,
Stockholm, Sweden
Published online: 05 Aug 2011.

To cite this article: Nguyen Hong Thao & Ramses Amer (2011) Coastal States in the South China Sea
and Submissions on the Outer Limits of the Continental Shelf, Ocean Development & International
Law, 42:3, 245-263, DOI: 10.1080/00908320.2011.592473

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Ocean Development & International Law, 42:245–263, 2011
Copyright © Taylor & Francis Group, LLC
ISSN: 0090-8320 print / 1521-0642 online
DOI: 10.1080/00908320.2011.592473

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Coastal States in the South China Sea
and Submissions on the Outer Limits
of the Continental Shelf
NGUYEN HONG THAO
Faculty of Law

Vietnam National University
Hanoi, Vietnam

RAMSES AMER
Department of Oriental Languages
Stockholm University
Stockholm, Sweden

The purpose of this article is to examine the outer continental shelf submissions made
by the coastal states of the South China Sea and their potential impact on legal and
political developments in the South China Sea. In accordance with the United Nations
Convention on the Law of the Sea of 1982 and the guidelines of the Commission on the
Limits of the Continental Shelf, coastal states are to establish the outer limits of their
continental shelf where it extends beyond 200 nautical miles. Meeting this obligation is
complicated in enclosed or semienclosed seas where there are maritime disputes such
as in the South China Sea.
Keywords continental shelf, South China Sea

Introduction
The purpose of this article is to examine the submissions on the outer limit of the continental
shelf beyond 200 nautical miles made by the coastal states of the South China Sea and
the potential impact of the submissions on the legal and political situation in the South
China Sea. Pursuant to the United Nations Convention on the Law of the Sea of 1982
(UNCLOS 1982),1 coastal states with a shelf area beyond 200 nautical miles are obligated
to submit information to the Commission on the Limits of the Continental Shelf (CLCS)2
Received 28 October 2010; accepted 21 January 2011.
This article is a revised version of a paper prepared for the Sixth Advisory Board on the Law of
the Sea (ABLOS) Conference, hosted by the International Hydrographic Bureau, Monaco, October
25–27, 2010.
Address correspondence to Professor Nguyen Hong Thao, Faculty of Law, Vietnam National

University, Hanoi, Vietnam. E-mail: and Ramses Amer, Senior Research Fellow, Department of Oriental Languages, Stockholm University, Guest Research Professor,
National Institute for South China Sea Studies, Haikou, and Research Associate, Swedish Institute
of International Affairs, Stockholm, Sweden. E-mail:

245


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for the purpose of establishing the outer limit of their shelf area. The implementation of
this obligation is complicated in enclosed or semienclosed seas where there are maritime
disputes such as in the South China Sea. According to UNCLOS 1982, coastal states
must meet a double requirement: fulfill the obligation of making submissions on the outer
limit of the continental shelf and do so without prejudice to the rights (and interests) of
the regional community and other neighboring states. The best option is cooperation and
mutual understanding between regional coastal states based on a correct and objective
interpretation of UNCLOS 1982 as well as the Scientific and Technical Guidelines of the
CLCS.3

The Continental Shelf Beyond 200 Nautical Miles and the Work of the CLCS
UNCLOS 1982 entered into force in 1994. In accordance with its provisions, each coastal
state has the right to have a 12-nautical-mile territorial sea, a 200-nautical-mile exclusive
economic zone (EEZ), and an adjacent continental shelf. The latter comprises
the sea-bed 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

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.4
In accordance with this wording, each coastal state has a right to a continental shelf of 200
nautical miles. Depending on the natural characteristics of its continental margin, some
coastal states may have the right to a continental shelf that extends beyond 200 nautical
miles from the baselines from which the breadth of the territorial sea is measured. The
outer limit of the shelf beyond 200 nautical miles is to be established by either

(i) a line of 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 foot of the continental slope; or
(ii) a line of the outermost fixed points not more than 60 nautical miles
from the foot of the continental slope.
In either case, the line of the outermost fixed points is not to exceed 350 nautical miles
from the baselines from which the breadth of the territorial sea is measured or 100 nautical
miles from the 2,500-meter isobaths, which is a line connecting the depth of 2,500 meters.5
Article 76, paragraph 8, of UNCLOS 1982 further states that
information on the limits of the continental shelf beyond 200 nautical miles
from the baselines from which the breadth of the territorial sea is measured
shall be submitted by the coastal State to the Commission on the Limits of the
Continental Shelf set up under Annex II on the basis of equitable geographic
representation. The Commission shall make recommendations to coastal States
on matters related to the establishment of the outer limits of their continental
shelf. The limits of the shelf established on the basis of these recommendations
shall be final and binding.


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The South China Sea and Outer Continental Shelf Submissions

247

Article 76 of UNCLOS 1982 refers to coastal states without being qualified as states parties.
There are issues regarding: the legal nature of the extended continental shelf beyond 200
nautical miles; the rights and obligations of states parties and non-states parties of UNCLOS
1982 concerning submissions to the CLCS; the criteria for the establishment of the outer
limit of the continental shelf; and the role of the CLCS.6
The limit of the continental shelf beyond 200 nautical miles is defined in a different
way compared with other maritime zones, such as the territorial sea and the EEZ, because
delineation does not depend exclusively on the distance factor. Nevertheless, from a legal
point of view, there is no difference between the continental shelf out to 200 nautical miles
and the extended continental shelf beyond 200 nautical miles. The legal continental shelf of
a coastal state extends from its coast throughout the natural prolongation of its land territory.
Natural prolongation reflects the principle that the “land dominates sea.” It is legally derived
from the 1945 Truman Proclamation on the Continental Shelf through which the United
States claimed competence over hydrocarbon activity within its continental shelf7 and from
the International Court of Justice in the North Sea Continental Shelf Cases in 1969,8 and is
affirmed by state practice.9 Moreover, a coastal state’s right to its adjacent continental shelf
was codified in the 1958 Geneva Convention on the Continental Shelf.10 Consequently,
states parties to UNCLOS 1982 and non-states parties have the same right to extend their
continental shelf based on natural prolongation.11 However, the non-states parties do not
need to strictly follow the procedural obligation to submit their outer limit of the continental
shelf beyond 200 nautical miles to the CLCS.
According to Annex II, Article 4, of UNCLOS 1982, the timeline for the submission to
the CLCS was to be within 10 years of the entry into force of the Convention for coastal states
parties. However, the timeline was modified and fixed at 13 May 2009 through a decision
on 29 May 2001 at the Eleventh Meeting of the UNCLOS 1982 States Parties (SPLOS).12
A decision adopted at the Eighteenth Meeting of the SPLOS on 20 June 2008 allows
coastal states, in particular developing countries, including small island developing states

that face a lack of financial and technical resources and relevant capacity and expertise or
other similar constraints, to meet the 2009 timeline by submitting preliminary information
indicative of the outer limits of the continental shelf beyond 200 nautical miles.13 The
preliminary information is not to be acted on by the CLCS and is without prejudice to a
subsequent full submission. This raises the question about whether coastal states that did
not make either a submission or a preliminary information indication by the 2009 deadline
would lose their rights over the extended continental shelf beyond 200 nautical miles. The
answer is no since there is an inherent right of the coastal state over the natural prolongation
of its continental shelf.14
By meeting the time requirement for submissions, coastal states have shown their determination to fulfill the UNCLOS 1982 obligation. Up to 13 May 2009, 51 submissions
and 45 preliminary information indications were submitted. Four subsequent submissions
have been received from Mozambique, Maldives, Denmark, and Bangladesh.15 The submissions contribute to the creation of a more full picture of the outer limits of the continental
shelves for coastal states as well as the limits of the international seabed area. The further
that the outer limits of continental shelves are into the sea, the narrower the international
seabed area where mineral resources are within the jurisdiction of the International Seabed
Authority (ISA).16 The ISA, while directly affected by the Article 76 criteria and process,
has no role in the determination of the common boundary between the international seabed
area and the extended continental shelf beyond 200 nautical miles.17
The function of the CLCS is threefold; first, to consider the data and other material
submitted by coastal states concerning the outer limits of the continental shelf in areas


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where those limits extend beyond 200 nautical miles; second, to make recommendations
to the coastal states in accordance with Article 76; and, third, to provide scientific and

technical advice, if requested by a coastal state, during the preparation of the data referred
to in the submission process.18
Article 9 of Annex II to UNCLOS 1982 provides that “the actions of the Commission
shall not prejudice matters relating to delimitation of boundaries between States with
opposite or adjacent coasts.” Thus, it can be understood that the CLCS
–has no function in supporting the position of any party, imposing or influencing
negotiations on the continental shelf boundary delimitation between States with
overlapping claims over their extended shelf;
–is not to be involved in any matters regarding the determination of the outer
limits of a coastal State’s extended shelf in cases of unresolved land or maritime
disputes.19
Disputes on the delimitation of the continental shelf between states with opposite or adjacent
coastlines, or other cases of unresolved maritime disputes or over insular formations, do not
prevent the coastal states from making submissions to the CLCS.20 Submissions may be
made and may be considered in accordance with Annex 1 of the Rules of Procedure of the
CLCS. The coastal state making a submission is required to inform the CLCS of a dispute
and to ensure, to the extent possible, that the submission will not prejudice matters relating
to the delimitation of boundaries or maritime disputes between states. If a submitting state
fails to comply with the above obligation to inform, the CLCS must be informed of a dispute
by other states; otherwise, based on paragraph 1 of Annex I of the Rules of Procedure, the
CLCS will have no reason to take into account a dispute situation in its process. The Rules of
Procedure of the CLCS encourage submitting states, before making a submission, to obtain
the prior consent of other states that might potentially be involved. When the CLCS receives
the consent of all states that are parties to a dispute involved in a submission, the CLCS is
able to consider that portion of the submission covered by the consent.21 To facilitate the
work of the CLCS in consideration of a submission and to avoid third-party intervention,
a submitting state can make a partial submission covering only the portion outside an area
of dispute22 or it can make a joint submission with the other claimant. Thus, in the CLCS
process, there are not only submitting states, but there can also be other states interested in
the submission. Paragraph 5(a) of Annex I of the Rules of Procedure of the CLCS directs

that, in cases “where a land or maritime dispute exists, the CLCS shall not consider and
qualify a Submission made by any of the States concerned in the dispute.” Thus, there are
situations where the CLCS cannot proceed with a submission. It can be asserted that a “land”
dispute refers to a sovereignty dispute over insular formations or land such as the situation
with respect to Antarctica. Maritime dispute, arguably, refers to overlapping claimed areas.
Paragraph 5(a) not only refers to states involved in a dispute, but also to states not directly
party to a dispute but that may have an interest in a dispute. Arguably, the wording also
extends to states concerned, not only with an ongoing dispute, but also with a situation
that may lead to a dispute in the future.23 The deadline for receiving an intervention by
third parties is set at 3 months from the date of the publication by the UN secretary-general
of the executive summary of the submission.24 The capacity for intervention pursuant to
paragraph 5(a) is ensured not only for the states parties to UNCLOS 1982, but also to
non-states parties having interests in a dispute and accepting UNCLOS 1982 as a source of
the law of the sea.


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249

It should be noted that coastal states have the full freedom to determinate their outer
limit of the continental shelf. The CLCS can make recommendations and other states may
protest or otherwise not agree with the determination of an outer limit by a coastal state.
The CLCS has no authority to impose a limit on a coastal state. It is also not the role of the
CLCS to impose the limit for safeguarding the interests of the world community relating to
the natural resources within the area under the jurisdiction of the ISA. The function of the
CLCS is to consider the technical and scientific data submitted by coastal states to meet the
requirement of the formula to determine the outer limit of the continental shelf beyond 200

nautical miles. Under UNCLOS 1982, the limits of the shelf established “on the basis of”
the recommendations of the CLCS “shall be final and binding.”25 In this sense, the close
and effective cooperation between submitting coastal states, the CLCS, and third parties,
where it is necessary, creates a mechanism to safeguard the right of the coastal states on
the one hand, and the interests of the world community on the other hand.
As set out in Article 76, paragraph 8, and in Article 4 of Annex II of UNCLOS 1982,
the process of defining the outer limit of the extended continental shelf encompasses several
phases. In the first phase, a coastal state conducts scientific surveys and collects data to
assess where it intends to establish—in accordance with Article 76 and the Guidelines of
the CLCS—the outer limits of its continental shelf beyond 200 nautical miles. The decision
to make a submission to the CLCS is made by the coastal state by taking into account the
collected geodetic data. The decision to make a submission is limited by the obligation of
the coastal state to not affect the rights of others, including the interests of world community
and other concerned states. As already noted, a submitting state is to inform the CLCS of
existing maritime disputes or disputes over insular formations in the area of submission and
must ensure, to the extent possible, that the submission will not prejudice matters relating
to the delimitation of boundaries between states. However, it is not easy to define those
rights due to the different interpretations by concerned states of the relevant provisions of
UNCLOS 1982 and, more generally, of the law of the sea.
In the second phase, the CLCS considers the submission. The received information is
verified by the CLCS under its Rules of Procedure and Scientific and Technical Guidelines.
Submissions are viewed by a subcommission composed of seven members, unless the
CLCS decides otherwise. A submitting coastal state may send representatives to participate
in the relevant proceedings.26 At the end of the second phase, the subcommission is required
to submit its recommendation to the CLCS. The recommendations approved by the CLCS
are delivered in writing to the coastal state that made the submission. The CLCS is not a
juridical body and has no right to accept or reject objections.
If the recommendations of the CLCS are accepted by a submitting state, the third
phase takes place. However, in the case of disagreement by a coastal state with the recommendations of the CLCS, the coastal state is obligated, within a reasonable time, to
make a revised or new submission to the CLCS.27 In this third phase, the coastal state and

the CLCS are expected to cooperate in order to reach accord. The third phase can be prolonged. The so-called ping-pong process28—submission, recommendation, resubmission,
re-recommendation—continues until the achievement of the mutual accord between the
submitting state and the CLCS.
The fourth phase is the procedure by which the coastal state is to establish the outer
limits of its continental shelf in conformity with the provisions of Article 76, paragraph
8, and in accordance with the appropriate national procedures.29 At the fourth stage, after
setting the outer limit of the Continental Shelf approved by CLCS, the coastal state has an
obligation to deposit the relevant data and map showing their limit of the continental shelf
with the Secretary-General of the United Nations.30


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A major obstacle for the establishment of the outer limit of the continental shelf is
the considerable number of submissions to be considered by the CLCS and its small staff.
From 1994 to 2008, only nine submissions were made to the CLCS. As of 28 April 2011,
the CLCS had received 55 submissions from 48 coastal states.31 The time needed for the
CLCS to do its work leading to recommendations can be illustrated by the following. On 31
March 2009, the CLCS gave its recommendation on the submission of Mexico with respect
to the western polygon in the Gulf of Mexico32 and, on 15 April 2010, the CLCS gave its
two latest recommendations—one on the submission by Barbados33 and the other on the
submission by the United Kingdom with respect to Ascension Island.34 With the current
rate of submissions being completed each year, it will take until beyond 2040 before the
CLCS can verify and give recommendations for the 55 submissions currently before the
CLCS.35 In addition to the full submissions, 45 preliminary information indications have
been submitted by coastal states to the CLCS.

Submissions to the CLCS by the South China Sea Coastal States
Ten coastal states and territories surround the South China Sea.36 Brunei Darussalam, China,
Indonesia, Malaysia, the Philippines, and Vietnam have pursued different approaches with
respect to the issues of the outer limit of the continental shelf. Indonesia, Malaysia, the
Philippines, and Vietnam have made submissions to the CLCS relating to their extended
continental shelves. Brunei and China have submitted to the CLCS preliminary information
indicative of the outer limits of the continental shelf.

Indonesia
Indonesia declared itself an archipelagic state in 1957 by the Presidential Declaration of 13
December 1957. Using the doctrine of archipelagic states, Indonesia drew its archipelagic
baselines joining the outermost islands and drying reefs of the archipelagoes in 1960.37
The doctrine of archipelagic states was accepted at the Third United Nations Conference
on the Law of the Sea (UNCLOS III) and Indonesia was one of the first states in Southeast
Asia to ratify UNCLOS 1982, doing so in 1986. Since 1996, the available bathymetric,
sediment thickness, and basepoint data to delimitate the outer limits of continental shelf
have been collected and analyzed through surveys such as the Digital Marine Resource
Mapping (DMRM) Project 1996–1999, the Global Bathymetric Data ETOPO2, the Ocean
Drilling Program (ODP), the Deep Sea Drilling Project (DSDP), and seismic reflection
profiles archived as part of the Intergovernmental Oceanographic Commission’s Geological/Geophysical Atlas of the Pacific (GPAPA) Project.38
On 16 June 2008, Indonesia made a submission to the CLCS relating to the continental shelf off northwest of Sumatra Island.39 The outer limit of the continental shelf
in the area off northwest of Sumatra—under this partial submission—has been determined using the 1% sediment thickness formula with respect to the shortest distance
to the foot of slope. Accordingly, five fixed points have been established, which combined with the 200-nautical-mile limit, form the outer limit of the extended continental
shelf in the area to the northwest of Sumatra. This area is not the subject of any dispute
with another state. In its submission, Indonesia reserved the right to make submissions
with respect to the outer limits of its extended continental shelf in other areas in the
future.40

The South China Sea and Outer Continental Shelf Submissions

251

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The Philippines
The Philippines signed UNCLOS 1982 in that year and ratified the Convention in 1984. On
8 April 2009, a partial submission of extended continental shelf in the Benham Rise region
was made by the Philippines to the CLCS.41 The area covered in the submission to the
north and east of the West Philippine Basin and to the west and south of the Luzon, where
there is no state with an opposite and adjacent coast to the Philippines. The outer edge of
the continental margin in the Benham Rise region was determined by the application of
Article 76, paragraph 4(a)(i). There are 253 points marking the proposed outer limit. The
hydrographic data was collected by survey cruises during 2004–2008. In its submission,
the Philippines explicitly reserves the right to make other submissions for other areas of
continental shelf beyond 200-n. miles in the future, in conformity with the provisions of
Annex I of the Rules of Procedure of the CLCS.42
Malaysia and Vietnam Joint Submission
Malaysia and Vietnam signed UNCLOS 1982 on 10 December 1982. Malaysia ratified
the Convention in 1996 and Vietnam ratified in 1994. Malaysia publicized the extent of
its territorial sea and continental shelf out to 200 nautical miles through two maps in
December 1979.43 Vietnam proclaimed its baselines in May 1977.44 Both countries have
determined that they have areas of continental shelf in the southern part of the South China
Sea that extends beyond 200 nautical miles. On 6 May 2009, Malaysia and Vietnam made
a joint submission to the CLCS relating to a “defined area” in the south of the South
China Sea.45 The area is generated and bound by the intersection point of the envelope
of arcs of the 200-nautical-mile limits of Malaysia and the Philippines in the east (Point
A), the intersection of two converging envelopes of the arcs of Malaysia 200-nautical-mile
limit toward the southwest of the Point A (Points B and C), by the boundary line under

the agreement on the continental shelf concluded by Malaysia and Indonesia in 196946
(Points D and E), the boundary line in the agreement on the limit of the continental shelf
signed by Vietnam and Indonesia in 200347 toward the northwest (Points F and G) and
the intersection point of the envelope of arcs of Vietnam’s 200-nautical-mile limit toward
the northeast (Points H and I) (see Figure 1). The “defined area” is beyond 200 nautical
miles from the baselines of land territories of both Malaysia and Vietnam and outside of the
agreed limits of continental shelves with other concerned countries. Both countries have
affirmed that the joint submission would not prejudice matters relating to the delimitation
of boundaries between states with opposite or adjacent coasts.48
Vietnam Partial Submission
On 7 May 2009, Vietnam made a partial submission relating to the North Area which is
located in the northwest of the South China Sea.49 The delineated outer limit of the extended
continental shelf is defined and bound in the north by an equidistance line between the
territorial sea baselines of Vietnam and the territorial sea baselines of China and in the west
by the 200-nautical-mile limit from Vietnam. Vietnam has delineated the outer limits of
its extended continental shelf in the North Area by application of both the 1% sediment
thickness formula and the foot of the slope +60-nautical-miles formula. The submission
by Vietnam was prepared using datasets acquired by dedicated surveys in 2007 and 2008
as well as datasets from the public domain including bathymetry, magnetic, gravity, and
seismic data (see Figure 2). Vietnam is of the view that the area of extended continental
shelf in the submission is not subject to a dispute and, furthermore, that its submission is


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N. H. Thao and R. Amer

Figure 1. Map of the Vietnam-Malaysia joint submission.

without prejudice to the maritime delimitation between Vietnam and other relevant coastal
states.

Preliminary Information
China
China signed UNCLOS 1982 in that year and ratified in 1996. On the same day as ratification, China’s baselines were proclaimed.50 The archipelagic baselines applied to the
Paracel Islands by China have been objected to by Vietnam and several other countries.51
On 11 May 2009, China submitted preliminary survey findings on the outer limits of its
continental shelf to the CLCS.52 The preliminary survey relates to an extended continental
shelf area beyond 200 nautical miles to the western slope of the Okinawa Trough in the East
China Sea. In its preliminary information, China stated that it reserves the right to make


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253

Figure 2. Map of the Vietnamese individual submission (VNM-N).

outer continental shelf submissions relating to areas in the East China Sea and elsewhere
in the future.53 The South China Sea may be one of those areas.
Brunei Darussalam
Brunei signed UNCLOS 1982 in 1984 and ratified it in 1996. On 12 May 2009, through its
preliminary information submission, Brunei indicated that it had made significant progress
in preparation of a full submission to the CLCS.54 Brunei has researched and analyzed
significant amounts of data relating to its continental shelf. This includes extensive morphological, geological, geophysical, and tectonic data. However, Brunei indicated it would
provide the full submission to the CLCS at a later date. When Brunei makes its full submission to the CLCS, it is expected to show that there is a continuous natural prolongation from

the territory of Brunei extending across the areas known as the Northwest Borneo Shelf,
the Northwest Borneo Trough, and the Dangerous Grounds to the edge of the deep ocean
floor of the South China Sea Basin. Thus, Brunei’s full submission to the CLCS will show
that the edge of the continental margin, lying at the transition between the Spratly Islands
area and the deep ocean floor of the South China Sea, is situated beyond 200 nautical miles
from the baselines from which Brunei’s territorial sea is measured.55


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It is interesting to note that, 2 months before 13 May 2009, Brunei and Malaysia
released a joint press statement on the occasion of the working visit to Brunei Darussalam
made by Abdullah Ahmad Badawi, prime minister of Malaysia, on 15–16 March 2009. The
statement contained information about an agreement on the final delimitation of maritime
boundaries and modalities for the final demarcation of the land boundary between Brunei
Darussalam and Malaysia.56
Brunei has not made any objection to the joint submission by Malaysia and Vietnam.
Consequently, it can be assumed that the joint submission by Malaysia and Vietnam does
not prejudice the rights of Brunei. Furthermore, Brunei did not clarify how the status of the
Spratly Islands area may affect the extension of the continental shelf when claiming natural
prolongation from the territory of Brunei.

Objections
China
On 7 May 2009, China sent two Notes to the secretary-general of the United Nations
requesting the CLCS not to consider the joint submission made by Malaysia and Vietnam57

or the submission made by Vietnam.58 A map of the South China Sea, including the nine
dotted lines, was attached to the two Notes. According to the Notes and the annexed map,
all the waters and insular formations within the nine dotted lines are claimed as being under
Chinese jurisdiction. Thus, China considers that the joint submission made by Malaysia and
Vietnam and the partial submission made by Vietnam infringe on its sovereignty, sovereign
rights, and jurisdiction in the South China Sea.

The Philippines
The Philippines has delivered Notes with respect to three submissions: the joint submission
of Malaysia and Vietnam;59 Vietnam’s partial submission,60 and the submission made by
Palau.61
The Philippines Note with respect to the joint submission by Malaysia and Vietnam
stated that
[the] Joint Submission for the Extended Continental Shelf by Malaysia and
Vietnam lays claim on areas that are disputed not only because they overlap
with that of the Philippines, but also because of the controversy arising from the
territorial claims on some of the islands in the area including North Borneo.62
The Note did not identify the specific area affecting the Philippines. However, it can be
understood that the southern part of the Philippine claim in the Spratly archipelago overlaps
with the defined area under the joint submission made by Malaysia and Vietnam.63 Another
issue raised in the Note is the territorial dispute between the Philippines and Malaysia over
North Borneo (i.e., the state of Sabah).
The Philippines Note with respect to Vietnam’s partial submission states that the area
covered by Vietnam’s submission relating to the northern part of the South China Sea is
“disputed because they overlap with those of the Philippines.”64 This seems to refer to a
possible continental shelf claim by the Philippines from Scarborough Shoal.


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255

In both of the above Notes, the Philippines requested that the CLCS refrain from considering the aforementioned submissions “unless and until after the parties have discussed
and resolved their disputes.”65

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Responses to the Objections
Vietnam responded to the Chinese Notes by stating that the included map “has no legal,
historical basis, therefore null and void.”66 It also asserted that the Paracel and Spratly
archipelagoes (Hoang Sa and Truong Sa in Vietnam) are part of Vietnam’s territory and
that Vietnam “has indisputable sovereignty over these archipelagoes.”67 This position was
reiterated in Note 77/HC-2011 of 3 May 2011 sent by Vietnam to the secretary-general of
the United Nations.68
In its response to the Chinese Note, Malaysia argued that the joint submission of
Malaysia and Vietnam
constitute [sic] legitimate undertakings in implementation of the obligations of
State Parties to the United Nations Convention on the Law of the Sea 1982,
which conform to the pertinent provisions of the UNCLOS 1982 as well as the
Rules of the Procedure of the Commission on the Limits of Continental Shelf.69
Malaysia pointed out that the joint submission was made without prejudice to the question
of delimitation of the continental shelf between states with opposite or adjacent coast. According to Malaysia, the joint submission was also made without prejudice to the positions
of states that are parties to the land or maritime disputes in the South China Sea. Malaysia
noted that it had informed China of its position prior to the submission to the CLCS.70
In response to the Philippine objections, Malaysia reconfirmed its sovereignty over
Sabah71 and Vietnam reaffirmed its position that it has indisputable sovereignty over
the Truong Sa (Spratlys) and Hoang Sa (Paracels) archipelagoes.72 In its Note to China,
Malaysia revealed that Malaysia and Vietnam had proposed to the Philippines the possibility
of joining in the joint submission.73
During the twenty-fourth session of the CLCS in August 2009, Vietnam and Malaysia

reaffirmed their positions.74 They emphasized that the joint submission was without prejudice to the question of delimitation between states and that paragraph 5 (a) of Annex I of
the Rules of Procedure should not be invoked. Both countries seem to share the position
that such claims have no basis under international law and cannot be qualified as disputes
in the sense of paragraph 5(a).
The CLCS decided to defer further consideration of the joint submission and the
Notes Verbale until such time as the submission is next in line for consideration as queued
in the order in which it was received.75 The CLCS made this decision in order to take
into consideration any further developments that might occur throughout the intervening
period.76

Perspective After May 2009
Like all members of UNCLOS 1982, the coastal states bordering the South China Sea
have an obligation to implement Article 76. They have the right to interpret and apply
it to identify the outer limit of their continental shelf beyond 200 nautical miles. However, the extension of the continental shelf beyond 200 nautical miles in the South China
Sea is not simple. There exist sovereignty disputes over the two strategically important


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archipelagoes–the Paracels and the Spratlys.77 Other disputes relate to claims over waters
and maritime areas surrounding these insular formations. Obviously, the status of an insular formation as an island or rock and the related maritime delimitation issues constitute
obstacles to the possibility of the extension of continental shelf in the South China Sea.
UNCLOS 1982 contains ambiguous wording with respect to the status of islands.78 In
the context of the South China Sea, one observer has noted that many law of the sea experts
would argue that most, if not all, of the insular formations in the South China Sea should
be considered as rocks pursuant to Article 121(3) and thus would not be able to generate

full maritime zones.79
The status of insular formations in the South China Sea directly affects the extension
of the continental shelf beyond 200 nautical miles. Presuming that the insular formations
in the South China Sea cannot generate a continental shelf, there is the possibility of an
extension of the continental shelf from the mainland beyond 200 nautical miles. The number
of submissions to the CLCS would increase and the CLCS could consider them without
protest from other states. If the insular formations in the South China Sea are islands under
UNCLOS 1982, then the continental shelves from the insular formations would overlap
with the continental shelves extended from the mainland.
Before 13 May 2009, all concerned countries in the South China Sea had revealed their
attitudes toward the issue of fixing the outer limit of extended continental shelf beyond 200
nautical miles in different ways. Moreover, the attitudes of the various states with interest
in the South China Sea with respect to the status of insular formations in it are on display
in their various submissions, preliminary information, and their Notes.
Indonesia and the Philippines have made submissions to the CLCS relating to areas
outside the South China Sea; their submissions, therefore, do not clarify their attitudes on
the issue of the status of insular formations in the South China Sea. In its objections to the
joint submission of Malaysia and Vietnam and to the individual submission of Vietnam,
the Philippines displayed its willingness to participate in discussions and seek a resolution
of its disputes with Malaysia and Vietnam. If an agreement could be reached, then the
Philippines could either submit unilaterally or jointly with the country concerned.
Vietnam and Malaysia pursued the policy of separating the submission of outer limit
of extended continental shelf beyond 200 nautical miles from the sovereignty disputes
over insular formations. They claim the extended continental shelf from their mainland
territories. The Paracel and Spratly archipelagoes, subjects of sovereignty claims in the
South China Sea, were not mentioned as basepoints. Both states are clearly of the view that
the disputed insular formations remain subject to negotiations.
According to the preliminary information provided to the CLCS, Brunei’s submission
will be based on the continuous natural prolongation of the adjacent shelf from the territory
of Brunei extending across the Spratly Islands area to the edge of the deep ocean floor of

the South China Sea Basin.80 Brunei seems to share the same view on the continental shelf
as Vietnam and Malaysia in detaching the shelf issues from insular formation sovereignty
questions.
The status of insular formations was debated in the Congress of the Philippines and
in the media in connection with the passage of House Bill 3216 on 2 February 2009
concerning the archipelagic baselines as well as during the process leading to passage of
the Archipelagic Baseline Law on 10 March 2009, in which the Kalayaan Islands Group
(KIG) and Scarborough Shoal are classified as being within the “regimes of islands.”81
These insular formations are subject of sovereignty disputes between the Philippines and
other countries to the west of the Philippines. China and Vietnam issued protests against
Philippine House Bill 3216.82 It has been reported that Indonesia protested against the


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inclusion of Palmas Island located 47 nautical miles east-northeast of the Saranggani
Islands off Mindanao in the Philippines.83 If the KIG and Scarborough Shoal had been
included in the archipelagic baselines, all the outermost insular formations in the KIG and
Scarborough Shoal would have been basepoints from which the continental shelf could
be measured. Through the 2009 Archipelagic Baseline Law, this situation was avoided
but, by establishing that KIG and Scarborough Shoal were “a regime of islands under the
Republic of the Philippines,” some uncertainty remains. The Philippine objections to the
Joint Submission of Malaysia and Vietnam and the individual submission by Vietnam seem
to be based on the country’s deliberations on the “regime of islands” and whether or not
they can generate their own continental shelves or only territorial seas. This position is
further clarified in a Note of 5 April 2011 sent by the Philippines to the to the secretarygeneral of the United Nations in response to China’s May 2009 Notes with the attached

maps displaying the nine dotted lines.84 In this Note, the Philippines stated that “under
the international law principle of ‘la terre domaine la mer’ . . . , the extent of the waters
that are adjacent’ to the relevant geographical features are definite and determinable under
UNCLOS, specifically under Article 121 (Regime of Islands) of this said Convention.”85
The Chinese position on the status of the insular formations in the South China Sea is
unclear. In February 2009, China questioned Japan’s inclusion of an insular formation in its
2008 submission to the CLCS.86 Japan used Okinotorishima as a basepoint for three areas
where Japan claimed an extended continental shelf beyond 200 nautical miles. According
to China, the feature is a rock and China claims that it is entitled to only a 12-nauticalmile territorial sea.87 At the Nineteenth Meeting of the SPLOS held in June 2009, China
presented a Note that commented that “in accordance with Article 121(3) of the Convention,
rocks which cannot sustain human habitation or economic life of their own shall have no
exclusive economic zone or continental shelf.”88
However, this position by China may not be consistent with the one taken in relation
to the South China Sea. In the Notes of 7 May 2009 objecting to the joint submission
of Malaysia and Vietnam and to the individual submission by Vietnam, China claims
“indisputable sovereignty over the islands in the South China Sea and the adjacent waters,
and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed
and subsoil.”89 As already noted, the map attached to these Notes purported to indicate the
waters over which China claimed jurisdiction. In the Notes, however, the legal nature of the
“relevant waters” was not specified. It is interesting to note that China has not published
a law or decree that gives the nine dotted lines any domestic legal significance.90 No map
of this nature was attached to the official laws and regulations such as the Declaration on
China’s Territorial Sea in 1958, the Declaration of the People’s Republic of China on the
Territorial Sea and Contiguous Zone in 1992, the Declaration of the People’s Republic of
China on Baselines of the Territorial Sea in 1996, and the Law of the People’s Republic of
China on the Exclusive Economic Zone and Continental Shelf in 1998.91 In the Notes of
2009, China claims the “relevant waters” within the nine dotted lines with no coordinates.
The term “relevant waters” does not specify whether or not they relate to the EEZ, the
continental shelf, or both. Furthermore, there is no clear explanation as to the legal basis,
the method of drawing, and the status of the dotted lines, all of which has been noted by

Indonesia in a Note sent to the secretary-general of the United Nations in July 2010.92
Also the Philippines Note of 5 April 2011 seems to suggest that there is “no legal basis for
claiming sovereign rights and jurisdiction over any resources in or under the waters within
the nine-dashed line outside the waters adjacent to the islands.”93 In response to the Note of
the Philippines, China sent a Note to the secretary-general on 14 April 2011. China claims
that “the China’s Nansha islands is fully entitled to Territorial Sea, Exclusive Economic


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Zone (EEZ) and Continental Shelf.”94 This implies that China considers that the “Nansha
Islands” (i.e., Spratly Islands) are entitled to full maritime zones. China did not mention or
attach any map to this Note.95 However, the nine dotted lines map will continue to arouse
both political and scholarly debates.
Given the uncertainties in interpreting the Chinese claims, its full impact cannot be
ascertained. However, if the area within the nine dotted lines is considered to be Chinese,
then it would exclude any possibility to claims of a continental shelf beyond 200 nautical
miles in the South China Sea. In this situation, China would not need to make a submission
to the CLCS.
The scientific aspects of the definition of the outer limit of the continental shelf has
been linked by China to the territorial disputes over the Paracels and Spratlys in the South
China Sea. In the East China Sea, the Chinese preliminary information states that China
will “through peaceful negotiation, delimit the continental shelf with States with opposite
or adjacent coasts by agreement on the basis of the international law and the equitable
principle.”96 However, in the two Notes of 7 May 2009 relating to submissions by other
states made in the South China Sea, China did not mention the possibility of negotiations.

The Future of the Submissions
Fixing the outer limit of the continental shelf beyond 200 nautical miles is a political and
a scientific matter. The task of the CLCS would be facilitated if Vietnam and Malaysia can
persuade the concerned countries to remove their objections to their submissions. However,
even if there had been no objections–keeping in mind the number of submissions to the
CLCS–the joint submission by Malaysia and Vietnam possibly will not be considered by
the Commission until 2019 and Vietnam’s individual submission until 2022.97 If claimant
states in the South China Sea have good intentions, they may seek to work toward an
arrangement such as to give their prior consent to the consideration of the submissions, to
join those submissions, or to make their own submissions to the CLCS.
More generally, the definition of the outer limit of the continental shelf is not a solution
to the disputes relating to insular formations in the South China Sea. First, the outer limit
task cannot prejudice any land or maritime disputes and, second, the evaluation of data
demands a lot of time and patience from the concerned parties.
Seen from another perspective, the submissions to the CLCS and the objections may
provide an opportunity for the claimant countries in the South China Sea to cooperate. First,
the submissions encourage the concerned states to follow UNCLOS 1982 in fixing the outer
limit of the continental shelf. Countries that have not yet finalized their submissions will
increase their efforts to complete the work and make submissions to the CLCS. There
can be new partial or final submissions or joint submissions as well as new objections.
Through those activities, the concerned parties will generate a greater understanding about
each other’s positions and policies; this can help clarify their own positions and policies.
The outer limit of the continental shelf can be a subject of discussion in forums like the
Workshop on the Managing the Disputes in the South China Sea and also can contribute
toward creating new forums. Second, the submissions may encourage the parties to have
serious discussions about the status of insular formations and Article 121 (3) of UNCLOS
1982. Objectively, the insular formations in the South China Sea cannot be compared with
the land territory in terms of generating maritime zones under UNCLOS 1982. The insular
formations cannot be treated as archipelagic states and, consequently, archipelagic baselines

may not be used. Third, the deadline of 13 May 2009 encouraged the parties to clarify their
claim limits. The tendency to fix the claim limits in accordance with UNCLOS 1982’s


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scientific and neutral criteria are clearer. There are some efforts to prevent the influence of
insular formations in disputes on the other field of activities under UNCLOS 1982. Claims
that are not made from land features will not be in line with the basic principles of UNCLOS
1982.
In conclusion, UNCLOS 1982 should serve as common ground for all maritime activities. The disputes in the South China Sea are not an obstacle to fulfilling the obligations and
implementing UNCLOS 1982. The key to settling the disputes in the South China Sea is to
build trust and goodwill among the concerned parties. The claimant states should talk with
and listen to each other as they work together on a basis of respect for equal and mutual
interests and in accordance with international law in order to contribute toward peace and
security in the region.

Notes
1. U.N. Convention on the Law of the Sea, 1833 U.N.T.S. 397.
2. Ibid., art. 76(8) and Annex II. See the Commission on the Limits of the Continental Shelf
(CLCS) Web site at www.un.org/Depts/los/clcs new/clcs home.htm.
3. The Scientific and Technical Guidelines of the Commission are available at the CLCS Web
site, supra note 2.
4. UNCLOS 1982, supra note 1, art. 76(1).
5. Ibid., art. 76(5).
6. See, generally, Vladimir Jares, “The Continental Shelf Beyond 200 Nautical Miles: The

Work of the Commission on the Limits of the Continental Shelf and the Arctic,” Vanderbilt Journal
of Transnational Law 42 (2009): 1265–1309; Ted L. McDorman, “The Continental Shelf Beyond
200 nm: Law and Politics in the Arctic Ocean,” Journal of Transnational Law and Policy 18 (2010):
155–184; Ted L. McDorman, “The Role of the Commission on the Limits of the Continental
Shelf: A Technical Body in a Political World,” International Journal of Marine and Coastal Law
17 (2002): 301–324; Ted L. McDorman, “The South China Sea After 2009: Clarity of Claims
and Enhanced Prospects for Regional Cooperation?” Ocean Yearbook 24 (2010): 507–535; Alex
G. Oude Elfrink and Constance Johnson, “Outer Limits of the Continental Shelf and ‘Disputed
Areas’: State Practice Concerning Article 76 (10) of the LOS Convention,” International Journal
of Marine and Coastal Law 21 (2006): 461–487; and Christian Reichert, “Determination of the
Outer Continental Shelf Limits and the Role of the Commission on the Limits of the Continental
Shelf,” International Journal of Marine and Coastal Law 24 (2009): 387–399. See also “The
Outer Continental Shelf: Some Considerations Concerning Applications and the Potential Role of
the International Tribunal for the Law of the Sea,” statement by H. E. Judge R¨udiger Wolfrum,
president of the International Tribunal for the Law of the Sea, at the Seventy-Third Biennial
Conference of the International Law Association, Rio de Janeiro, 21 August 2008, available at
www.itlos.org/news/statements/Wolfrum/ILA Rio de Janeiro Outer%20Continental%20Shelf%20E
.pdf (accessed 27 October 2010).
7. United States, Executive Order 9633 of September 28, 1945–Reserving and Placing Certain
Resources of the Continental Shelf Under the Control and Jurisdiction of the Secretary of the Interior,
10 Fed. Reg. 12303, 59 U.S. Stat. 884. See Ann L. Hollick, U.S. Foreign Policy and the Law of the
Sea (Princeton: Princeton University Press, 1981), p. 18.
8. North Sea Continental Shelf Cases (Denmark/Netherlands v. Federal Republic of Germany),
[1969] I.C.J. Reports 3.
9. Numerous states have exercised rights over the shelf beyond 200 nautical miles—issuing
of permits and conducting of exploratory drilling—before the entry into force of UNCLOS 1982.
For example, Canada had in place national oil and gas legislation providing the jurisdiction over the
Canadian adjacent continental margin beyond 200 nautical miles based on customary international
law before Canada ratified UNCLOS 1982 in 2003. See Barry G. Buzan and Danford W. Middlemiss,
“Canadian Foreign Policy and the Exploitation of the Seabed,” in Canadian Foreign Policy and the

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Law of the Sea, ed. Barbara Johnson and Mark W. Zacher (Vancouver, Canada: University of British
Columbia Press, 1977), pp. 3–7; Ted L. McDorman, “Canada Ratifies the 1982 United Nations
Convention on the Law of the Sea: At Last,” Ocean Development and International Law 35 (2004):
103 and 106; and McDorman, “The Continental Shelf,” supra note 6, at 165.
10. Convention on the Continental Shelf, 29 April 1958, 499 U.N.T.S. 311.
11. Ted L. McDorman, “The Entry into Force of the 1982 LOS Convention and the Article
76 Outer Continental Shelf Regime,” International Journal on Marine and Coastal Law 10 (1995):
165–167 states:
that there appears to exist sufficient state practice based on the 1958 Geneva Convention
on the Continental Shelf and upon Article 76 itself to support the view that, as a matter of
customary international law, states can legally exercise jurisdiction over the continental
margin beyond 200 nautical miles irrespective of the State’s status as a LOS Convention
ratifier (p. 167).
See also Oude Elfrink and Johnson, supra note 6, at 461–487; and Wolfrum, supra note 6.
12. “Decision regarding the date of commencement of the ten-year period for making submissions to the Commission on the Limits of the Continental Shelf set out in article 4 of Annex II to the
United Nations Convention on the Law of the Sea, Meeting of the States Parties, Eleventh Meeting,
14–18 May 2001,” SPLOS/72, 29 May 2001, available at the UN Division for Ocean Affairs and the
Law of the Sea (DOALOS) Web site, www.un.org/Depts/los/index.htm.
13. “Decision regarding the workload of the Commission on the Limits of the Continental Shelf
and the ability of States, particularly developing States, to fulfill the requirements of article 4 of
annex II to the United Nations Convention on the Law of the Sea, as well as the decision contained
in SPLOS/72, paragraph (a), Meeting of the States Parties, Eighteenth Meeting, 13–20 June 2008,”

SPLOS/183, 20 June 2008, available at the DOALOS Web site, supra note 12.
14. Alex G. Oude Elferink, “Article 76 of the LOSC on the Definition of the Continental Shelf:
Questions Concerning Its Interpretation from a Legal Perspective,” International Journal of Marine
and Coastal Law 21 (2006): 269 and 277–279, has stated: “non-compliance with the time limit
contained in Article 4 of Annex II does not have any consequences for the entitlement of the coastal
state over its continental shelf,” (p. 279) See also “Meeting of the States Parties, Thirteenth Meeting,
14–18 June 2001,” SPLOS/73, 14 June 2001, para. 75, available at the DOALOS Web site, supra note
12: “Some delegations pointed out that there was no legal consequence stipulated by the Convention
if a State did not make submission to the Commission. Several delegations underscored the principle
that the rights of the coastal State over its continental shelf were inherent and . . . did not depend upon
occupation, effective or notional, or any express proclamation.”
15. See the list of submissions, available at the CLCS Web site, supra note 2.
16. See UNCLOS 1982, supra note 1, part XI.
17. L. D. M. Nelson, “The Settlement of Disputes Arising from Conflicting Outer Continental
Shelf Claims,” International Journal of Marine and Coastal Law 24 (2009): 415.
18. UNCLOS 1982, supra note 1, Annex II, art. 3(1).
19. Michael Sheng-Ti Gau, “Third Party Intervention in the Commission on the Limits of the
Continental Shelf Regarding a Submission Involving a Dispute,” Ocean Development and International Law 40 (2009): 63.
20. Rules of Procedure of the Commission, Rule 46(1) and Annex II, available at the CLCS
Web site, supra note 2.
21. Ibid., Annex I, para. 5(a).
22. Ibid., Annex I, para. 3. Gau, supra note 19, at 65, comments that “the idea of a partial
submission covering only the dispute-free portion of the outer limits is that potential third states will
refrain from disturbing the consideration by the CLCS and that this may help speed up the CLCS
recommendation process.”
23. Ibid., at 64
24. Rules of Procedure, supra note 20, Rule 51(1).


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25. UNCLOS 1982, supra note 1, art. 76(8).
26. Ibid., Annex II, art. 5.
27. Ibid., Annex II, art. 8.
28. See McDorman, “The Role of the Commission,” supra note 6, at 306.
29. UNCLOS 1982, supra note 1, Annex II, art. 7.
30. Ibid., art. 76(9).
31. See supra note 15.
32. CLCS, “Summary of Recommendations to Mexico,” 31 March 2009, available at the CLCS
Web site, supra note 2.
33. CLCS, “Summary of Recommendations to Barbados,” 15 April 2010, available at the CLCS
Web site, supra note 2.
34. “Summary of Recommendations to the United Kingdom Respecting Ascension Island,” 15
April 2010, available at the CLCS Web site, supra note 2.
35. Ron Macnab has calculated that, if the rate is two submissions per year, the CLCS will
have verified 51 submissions by 2059. The timetable will be 2034 with the rate of 4 submissions
per year and 2022 with the rate of 8 per year. See Ron Macnab, “Complications in Delimiting the
Outer Continental Shelf,” PowerPoint presentation at “Changes in the Arctic Environment and the
Law of the Sea,” Thirty-Third Annual Conference of the University of Virginia Center for Oceans
Law and Policy, Seward, Alaska, 20–23 May 2009, available at www.virginia.edu/colp/pdf/Macnabouter-c.s.pdf (accessed 13 May 2009).
36. The name “South China Sea” is used internationally and does not prejudice any national
claims in this sea.
37. See “Executive Summary—Continental Shelf Submission of Indonesia: Partial Submission
in Respect of the Area of the North West of Sumatra,” 16 June 2008, available at the CLCS Web site,
supra note 2.
38. Sobar Sutisna, T. Patmasari, and Khafid, “Indonesian Searching for It’s Continental Shelf

Outer Limits, National Coordinating Agency for Surveys and Mappings (BAKOSURTANAL),”
available at ww.gmat.unsw.edu.au/ablos/ABLOS05Folder/SutisnaPaper.pdf (accessed 13 May 2009).
39. Indonesian, Partial Submission, supra note 37.
40. Ibid.
41. The Philippines, “Executive Summary—A Partial Submission of Data and Information on
the Outer Limit of the Continental Shelf,” 21 April 2009, available at the CLCS Web site, supra note 2.
42. Ibid., at 1 and 12.
43. See Nguyen Hong Thao and Ramses Amer, “The Management of Vietnam’s Maritime
Boundary Disputes,” Ocean Development and International Law 38 (2007): 308.
44. Ibid., at 306.
45. Malaysia-Vietnam, “Executive Summary–Joint Submission in Respect to the Southern Part
of the South China Sea,” 7 May 2009, available at the CLCS Web site, supra note 2.
46. Agreement Between Indonesia and Malaysia Relating to the Delimitation of the Continental
Shelves, 27 October 1969, I.L.M., vol. 9 (1970), 1173–1176.
47. Agreement Between Vietnam and Indonesia concerning the Delimitation of the Continental
Shelf Boundary, 26 June 2003, LOS Bulletin, vol. 67, 39.
48. Malaysia-Vietnam Joint Submission, supra note 45, at 2.
49. Vietnam, “Executive Summary—Partial Submission in Respect of the North Area,” 11 May
2009, available at the CLCS Web site, supra note 2.
50. See Daniel J. Dzurek, “The People’s Republic of China Straight Baseline Claim,” IBRU
Boundary and Security Bulletin (Summer 1996), available at www.dur.ac.uk/ibru/publications/
download/?id=92 (accessed 25 October 2010).
51. Ibid.
52. China, “Preliminary Information Indicative of the Outer Limits of the Continental Shelf
Beyond 200 Nautical Miles of the People’s Republic of China,” 11 May 2009, available at the CLCS
Web site, supra note 2.
53. Ibid., at 5.


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54. Brunei, “Brunei Darussalam’s Preliminary Submission Concerning the Outer Limits of Its
Continental Shelf,” 12 May 2009, available at the CLCS Web site, supra note 2.
55. Ibid.
56. “Joint Press Statement by Leaders on the Occasion of the Working Visit of YAB
Dato’ Seri Abdullah Haji Ahmad Badawi, Prime Minister of Malaysia to Brunei Darussalam on
15–16 March 2009,” available at the Brunei Ministry of Foreign Affairs and Trade Web site,
www.mofat.gov.bn/news/20090316a.htm (accessed 8 July 2010).
57. China, Note CML/17/2009, 7 May 2009, available on the website of the CLCS, supra note 2.
58. China, Note CML/18/2009, 7 May 2009, available at the CLCS Web site, supra note 2.
59. The Philippines, Note No. 000819, 4 August 2009, available at the CLCS Web site, supra
note 2.
60. The Philippines, Note No. 000818, 4 August 2009, available on the website of the CLCS,
supra note 2.
61. The Philippines, Note No. 000820, 4 August 2009, available at the CLCS Web site, supra
note 2.
62. The Philippines, Note No. 000819, supra note 59.
63. Tessa Jamandre, “RP Protests Claims over Kalayaan Islands Before UN,” 10 August 2009,
available at verafiles.org/main/focus/rp-protests-claims-over-kalayaan-islands-before-un/ (accessed
28 October 2010).
64. The Philippines, Note No. 000818, supra note 60.
65. The Philippines, Note No. 000819, supra note 59; Note No. 000818, supra note 60, at 2.
66. Vietnam, Note No. 86/HC-2009, 8 May 2009, available at the CLCS Web site, supra note 2.
67. Ibid.
68. Vietnam, Note No. 77/HC-2011, 3 May 2011, available at the CLCS Web site, supra note 2.
69. Malaysia, Note HA 24/09, 20 May 2009, available at the CLCS Web site, supra note 2.

70. Ibid.
71. Malaysia, Note No. 41/09, 21 August 2009, available at the CLCS Web site, supra note 2.
72. Vietnam, Note No. 240/HC-2009, 18 August 2009, available at the CLCS Web site, supra
note 2.
73. Malaysia, Note HA 24/09, supra note 69.
74. See “Statement by the Chairman of the Commission on the Progress of Work in the Commission,” CLCS/64, 1 October 2009, para. 92, available at the CLCS Web site, supra note 2.
75. Ibid., para. 92.
76. Ibid.
77. For a more detailed overview of the claims, see Nguyen and Amer, supra note 43, at
306–309.
78. UNCLOS 1982, supra note 1, Article 121(3), states that “rocks which cannot sustain
human habitation or economic life of their own shall not have an exclusive economic zone or
continental shelf.” Unfortunately, UNCLOS 1982 is silent on the definition of “rocks.” There is
a significant literature on this provision. See J. M. Van Dyke and D. L. Bennett, “Islands and
the Delimitation of Ocean Space in the South China Sea,” Ocean Yearbook 10 (1993): 54; John
M. Van Dyke and Robert A. Brooks, “Uninhabited Islands: Their Impact on the Ownership of
the Ocean’s Resources,” Ocean Development and International Law 12 (1983): 265; Jonathan I.
Charney, “Note and Comment: Rocks that Cannot Sustain Human Habitation,” American Journal of
International Law 93 (1999): 872; Barbara Kwiatkowska and Alfred H. A. Soons, “Entitlement to
Maritime Areas of Rocks Which Cannot Sustain Hamuan Habitation or Economic Life of Their Own,”
Netherlands Yearbooks of International Law 21 (1999): 167; Robert Beckman and Clive Schofield,
“Moving Beyond Disputes over Islands Sovereignty: ICJ Decision Sets Stage for Maritime Boundary
Delimitation in the Singapore Strait,” Ocean Development and International Law 40 (2009): 10;
Barry Hart Dubner, “The Spratly ‘Rocks’ Dispute—A ‘Rockapelago’ Defies Norms of International
Law,” Temple International and Comparative Law Journal 9 (1995): 304–305; and Alex G. Oude
Elferink, “The Islands in the South China Sea: How Does Their Presence Limit the Extent of the


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High Seas and the Area and the Maritime Zones of the Mainland Coasts?” Ocean Development and
International Law 32 (2001): 174.
79. R. W. Smith, “Maritime Delimitation in the South China Sea: Potentiality and Challenges,”
Ocean Development and International Law 41 (2010): 227.
80. Brunei, Preliminary Information, supra note 54.
81. The Philippines, Republic Act No. 9522, An Act to Amend Certain Provisions of Republic
Act No. 3046, as Amended by Republic Act No. 5466, to Define the Archipelagic Baselines of the
Philippines, and for Other Purposes, approved 10 March 2009, available at the Philippine Law and
Jurisprudence Database Web site, www.lawphil.net/statutes/repacts/ra2009/ra 9522 2009.html.
82. For details, see Nguyen Hong Thao and Ramses Amer, “A New Legal Arrangement for the
South China Sea?” Ocean Development and International Law 40 (2009): 340 and 347–348.
83. See Ellen Tordesillas, “Tempest in High Seas,” 13 March 2009, Malaya—The National
Newspaper (Philippines), available at www.malaya.com.ph/mar13/edtorde.htm (accessed 26 October
2010).
84. The Philippines, Note No. 000228, 5 April 2011, available at the CLCS Web site, supra
note 2.
85. Ibid.
86. China, Note CML/2/2009, 6 February 2009, available at the CLCS Web site, supra note 2.
See Japan, “Executive Summary—Submission to the Commission,” 19 November 2008, available at
the CLCS Web site, supra note 2.
87. China, Note CML/2/2009, supra note 86.
88. China, “Note Verbale dated 21 May 2009 from the Permanent Mission of China
to the United Nations Addressed to the Secretary-General,” para. 4, available at daccess-ddsny.un.org/doc/UNDOC/GEN/N09/346/61/PDF/N0934661.pdf (accessed 28 October 2010).
89. China, Note CML/17/2009, supra note 57; Note CML/18/2009, supra note 58.
90. Smith, supra note 79, at 224.
91. See Nguyen and Amer, supra note 82, at 336.

92. Indonesia, Note No. 480/POL-703/VII/10, 8 July 2010, available at the CLCS Web site,
supra note 2.
93. Robert Beckman, “Islands or Rocks? Evolving Dispute in the South China Sea,”
RSIS Commentaries, No. 75/2011 (10 May 2011), available at www.rsis.edu.sg/publications/
Perspective/RSISO752011.pdf (accessed 11 May 2011).
94. China, Note CML/8/2011, 14 April 2011, available at the CLCS Web site, supra note 2,
95. Ibid.
96. China, “Preliminary Information,” supra note 52.
97. The Joint Submission of Malaysia and Vietnam is ranked thirty-third and the submission
of Vietnam is ranked thirty-seventh in the chronological list of submissions. See the CLCS Web site,
supra note 2.