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Article 76 of the UN Convention on the Law of the Sea and the Bay of Bengal Exception

  • M.C.W. PINTO (a1)
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Attorney of the Supreme Court of Sri Lanka and Barrister of Inner Temple, United Kingdom.

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1. See Informal Composite Negotiation Text, UN Doc. A/CONF.62/WP.10/Rev.l & Rev.2, which was carried over as art. 76 of the Draft Convention on the Law of the Sea, 28 August 1981, UN Doc. A/CONF.62/L.78. Art. 76 of the Convention is reproduced in Annex A of this paper.

2. The full text of the SoU is attached as Annex B of this paper. The SoU, incorporated as Annex II of the Final Act of the Third United Nations Conference on the Law of the Sea, is found in XVII Official Records Third United Nations Conference on the Law of the Sea 148−9, UN Doc. A /CONF.62/121 (1982).

3. United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 3; 21 ILM 1261 (entered into force 16 November 1994) [Convention].

4. 104th Plenary Meeting, Seventh Session, IX Official Records Third United Nations Conference on the Law of the Sea, UN Doc. A/CONF.62/SR.104 (1978). Other “broad-margin” states are reported to have expressed particular concern over possible loss of areas of their margin from application of the so-called “Irish formula” incorporated in what became para. 4 of art. 76. One commentator whose work on negotiations at the Conference garnered the highest praise from the heads of the delegations of Canada, the US and the UK, had this to say regarding Sri Lanka's initiative and the way it was accommodated by the Conference:

SANGER, Clyde, Ordering the Oceans: The Making of the Law of the Sea (Los Angeles, CA: Zed Books, 1986) at 80

5. Among this group was: Argentina, Australia, Brazil, Canada, Iceland, India, Ireland, Madagascar, New Zealand, Norway, Sri Lanka, the United Kingdom, Uruguay, and Venezuela.

6. This group included: Argentina, Australia, Austria, Brazil, Bulgaria, Canada, Colombia, Ecuador, France, Iceland, India, Indonesia, Iraq, Ireland, Jamaica, Japan, Libya, Morocco, the Netherlands, New Zealand, Norway, Peru, the Philippines, Romania, Seychelles, Singapore, Sri Lanka, Swaziland, Sweden, Switzerland, the United Arab Republic, the United Kingdom, Uruguay, the United States, the Soviet Union, Venezuela, and Yugoslavia. See Annex C of this paper. Figure 1 in Annex C is an attempt to show the effect of the limits imposed by art. 76 on the seaward extension of the continental shelf of a configuration with which the drafters were familiar. Figure 2 in Annex C is an attempt to show the exceptional limit subsequently prescribed for Sri Lanka and India by the Conference through the SoU.

7. PLATZÖDER, R.ed., IV Third United Nations Conference on the Law of the Sea: Documents (Dobbs Ferry, NY: Oceana Publications, 1995) at 514515

OXMAN, B.H., “Third United Nations Conference on the Law of the Sea: The Ninth Session” (1981) 75 American Journal of International Law 211

S.N. NANDAN, S. ROSENNE, and N. GRANDY, eds., The United Nations Convention on the Law of the Sea: A Commentary, Vol. II (Dordrecht: Martinus Nijhoff Publishers, 1993) at 1019−1026

8. For reference to such “intensive consultations”, see XIII Official Records of the Third United Nations Conference on the Law of the Sea, at 83, UN Doc. A/CONF.62/L.51.

9. See Report of the Chairman of Negotiating Group 6, Doc. NG6/19 (1979) in UN Doc. A/CONF.62/91, XII Official Records of the Third United Nations Conference on the Law of the Sea, at 106−7. At the request of Sri Lanka, this proposal was left “pending the outcome of consultations with other delegations”. The proposal represents the development of an earlier “informal suggestion” by Sri Lanka presented to Negotiating Group 6 of the Second Committee (Doc. NG.6/5) as a possible amendment to Article 76:

Informal suggestion by Sri Lanka to amend the Irish proposal (Document NG.6/1) 1. Add as new sub-para (c) to paragraph 3: “(c) In the case of a continental margin where the foot of the slope occurs at an average distance of less than … nautical miles from the baseline from which the territorial sea is measured, and a greater proportion of the sedimentary rocks of the margin lie beneath the rise by a line delineated in accordance with paragraph 4 connecting fixed points at which the thickness of such sedimentary rocks is not less than the minimum thickness of such rocks at the outer edge of the continental margin in areas to which the preceding sub-paragraphs of this paragraph apply”. 2. Add new paragraph 5: “The coastal State may determine the outer limit of the continental margin by any of the methods provided for in paragraph 3 of this article, or a combination thereof as appropriate to different conditions along its continental margin”.

A ftn to draft art. 76 in the Informal Composite Negotiating Text/Revision 1, UN Doc. A/CONF.62/WP.10/Rev.1 (1979) states: “The suggestion of Sri Lanka for an additional method of delimitation applicable to its geological and geomorphological conditions received widespread sympathy. However, the matter has been left for negotiation at the forthcoming session of the Conference” (a reference, presumably, to the Ninth Session in 1980). See also ftn no. 37 of Compromise Suggestions by the Chairman of Negotiating Group 6, UN Doc. A/CONF.62/L.37 (1979).

10. Ibid. Doc. NG6/19, under the heading “(e) The problem of Sri Lanka”.

11. Ibid.

12. Reproduced in R. PLATZÖDER, ed., Doc. NG6/10, IX Third United Nations Conference on the Law of the Sea: Documents (Dobbs Ferry, NY: Oceana Publications, 1995) at 379.

13. XIV Official Records Third United Nations Conference on the Law of the Sea, UN Doc A/CONF.62/SR.141 (1980) at 83−4.

14. IX Official Records Third United Nations Conference on the Law of the Sea, UN Doc. A/CONF.62/L.51 (1980) at 83.

15. Doc. NG6/19, supra note 9.

16. XIV Official Records Third United Nations Conference on the Law of the Sea, UN Doc. A/CONF.62/SR.141 (1980) at 83−4.

17. SoU, last para.

18. Ibid., first four paras.

19. See Convention, Annex 2, art. 3 (1)(a), infra note 24.

20. SoU, third para.

21. GARNER, B.A.ed., Black's Law Dictionary, 9th ed. (Eagan, MN: West Group, 2009) at 1155

22. SoU, third para.

23. Scientific and Technical Guidelines of the Commission on the Limits of the Continental Shelf, UN Doc. CLS/11 (1999).

24. Art. 3 (1)(a), Annex II of the Convention provides:

The functions of the Commission shall be: to consider the data and other material submitted by coastal States concerning the outer limits of the continental shelf in areas where those limits extend beyond 200 nautical miles, and to make recommendations in accordance with article 76 and the Statement of Understanding adopted on 29 August 1980 by the Third United Nations Conference on the Law of the Sea.

25. SoU, last para. Use of the term “these States in the southern part of the Bay of Bengal” clearly indicates that the states referred to have been identified elsewhere. While Sri Lanka and India are not named in the SoU, “these States” are otherwise identifiable since the travaux preparatoires demonstrate beyond doubt (1) that it was Sri Lanka which raised the issue of “inequity” that could result from the application of art. 76, and it was Sri Lanka which negotiated the solution embodied in the SoU, and (2) that India as the neighbouring state could benefit from the provisions of the SoU. See Nandan, Rosenne, and Grandy, supra note 7.

26. Bin, CHENG, General Principles of Law as Applied by International Courts and Tribunals (Cambridge: Cambridge University Press, 1987) at 305

27. JAGOTA, S.P., Maritime Boundary (Leiden: Martinus Nijhoff, 1985) at 40

MILES, E.L., Global Ocean Politics: The Decision Process at the Third U.N. Conference on the Law of the Sea (Dordrecht: Martinus Nijhoff, 1998) at 386388

M.H. NORDQUIST, ed., United Nations Convention on the Law of the Sea 1982, A Commentary, Vol. I (Dordrecht: Martinus Nijhoff, 1985) at 1019

28. See SoU, last para. The “specific method” provided for by the SoU negotiated by Sri Lanka is applicable to it (and to India) in any direction from its coast unless and until the outer limit of the continental shelf delimited by this method meets a similar entitlement of another state.

29. V.E. MCKELVEY. “Interpretation of the UNCLOS III Definition of the Continental Shelf”, in D.M. JOHNSTON and N.G. LETALIK, eds., The Law of the Sea and Ocean Industry: New Opportunities and Restraints (Hawaii: Law of the Sea Institute, 1982) at 465467

30. It has been suggested that since the introduction of the constraints in art. 76 by Russia, no continental shelf may extend beyond the distances prescribed by para. 5, although the continental margin may do so. This seems to ignore the basic definition of the continental shelf in para. 1 of art. 76, which subsumes the geomorphic shelf, slope, and rise in defining the Convention's juridical concept of the continental shelf. That the Convention's term “continental shelf” continued to subsume its three geomorphic elements even after the introduction of para. 5 constraints may receive support from the following passage from the judgment of the International Tribunal for the Law of the Sea in the Bangladesh/Myanmar case:

Entitlement to a continental shelf beyond 200 nm should thus be determined by reference to the outer edge of the continental margin, to be ascertained in accordance with Article 76 paragraph 4. To interpret otherwise is warranted neither by the text of article 76 nor by its object and purpose.

See Dispute Concerning Delimitation of the Maritime Boundary Between Bangladesh and Myanmar in The Bay Of Bengal (Bangladesh v. Myanmar), [2012] ITLOS Case no. 16 at para. 437. Although the SoU refers in terms to “establishing the outer edge of the continental margin”, Sri Lanka maintains that when it establishes the outer edge of its continental margin in accordance with the SoU, it will, in doing so, be establishing the outer edge of its continental shelf in conformity with the definition in art. 76(1).

31. See Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331 (entered into force 27 January 1980), art. 31(3)(a).

32. Ibid., art. 31(2)(a)

* Attorney of the Supreme Court of Sri Lanka and Barrister of Inner Temple, United Kingdom.

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