Extended Continental Shelf Claims inthe South China Sea: Prospects andFutures
The 46th Conference on Ocean Law and Policy
Istanbul, Turkiye, 21-23 September 2023
Jay L Batongbacal, LLB, MMM, JSD
Professor, University of the Philippines College of Law
Director, U.P. Institute for Maritime Affairs & Law of the Sea

The South China Sea

Enclosed sea in Southeast
Asia, 3.1M sq. km. area
within 600-1,000NM
Major artery of global
maritime trade
Bounded by 6 littoral States(CN, PH, MY, BR, ID, VN)
and Gulf of Thailand
Potential overlapping
entitlements to continental
shelf among all littorals
except ID
Territorial and maritime
disputes2016 SCS Arbitration

CN excessive claims
represented by 9 dashedlines invalid
Islands and HTE’s inSpratly Is. region andScarborough Shoal
entitled to 12NM only,
not EEZ/CS
PH entitled to 200NM
EEZ/CS from archipelagic
baselines

High Seas and Deep Ocean Floor (?)

Deep ocean floor within(approx. 3000m)?
- right of access?

3000m

High seas region beyond
200NM- effect of Paracels,
Pratas?

3000m

3000m

3000m

Evolving Jurisprudence
CaseYearTribunal

Overlap

CLCS Submissions attime of judgment?

CLCS Recommendations
at time of judgment?

Bangladesh/Mya 2012 ITLOS
nmar

Adjacent

Both filed

Not yetBangladesh v.
India

2014 Annex VII

Adjacent

Both filed

Not yetGhana/Côted’Ivoire

2017 ITLOS

Adjacent

Both filed

Recommendations madefor Ghana

Somalia v. Kenya

2021 ICJ

Adjacent

Both filed

Not yet

Nicaragua v.
Colombia

2023 ICJ

Opposite

Nicaragua filed

Not yetPrinciples relevant to delimitation beyond 200NM• Single continental shelf (Barbados/Trinidad & Tobago, 2006, etc.), but
entitlement based on– distance if within 200NM, and– natural prolongation if beyond 200NM (Nicaragua v Columbia, 2023)• Three stage delimitation procedure applies; unity of delimitation methodology
within and beyond 200NM (Ghana/Côte d’Ivoire)– Identification of “relevant coasts”• Implicit non-consideration of small features (e.g., islands), submarine features*• Coastal length ratio for non-disproportionality test

– Coastal projections in seaward direction generate maritime claims*(Bangladesh/India)– Preference for applicability of equidistance/relevant circumstances method + ex post
facto check on non-disproportionality (Bangladesh/India)

Principles relevant to delimitation beyond 200NM• Avoidance of inequitable results– No cut-off effect: line should not cut off seaward projections fromaccess to high seas (international seabed area) or unreasonably
encroach on other States’ entitlements (Bangladesh/India)– No refashioning of nature (Ghana/Côte d’Ivoire, etc.)• Under customary international law, a State’s entitlement to acontinental shelf beyond 200NM from the baselines of theterritorial sea may not extend within 200NM from the baselines
of another State (Nicaragua v Columbia, 2023)

Pending Submissions

All Southeast Asian littorals
manifest intention to apply
UNCLOS
3 areas now claimed, 1
additional area likely soon
Various issues raised

Pending Submissions: Viet Nam350NM

Pratas I.

1. North Area, May 2009-”conventional“ coastal
projection- gives no effect to Paracels- end point at 350NM fromVN & CN, but 270NM fromPH
2. Joint Area, May 2009
- “normal” coastal
projection- delimitation principles
beyond 200NM?
- delimitation with Spratly
HTE’s350NM270NM

Pending Submissions: Malaysia

1. Joint Area, May 2009
- same issues as with VN
2. North Area, Dec 2019
- unusual projection; lateralshift vis-à-vis coast thatcuts off PH EEZ/CS- impact on PH-MY
adjacent boundary line
within 200NM?
- overlap with VN claim(North Area)- delimitation with Spratly
HTE’sFuture Submissions: Brunei

Preliminary information,May 2009
- BR EEZ/CS extent not clear,depends on unpublished‘agreement’ with MY- right to accessinternational seabed area?
- cut off by MY claims?
- proper coastal projection?

Future Submissions: Philippines

Reserved right to make partial
submission, May 2009
Reiterated intention, Oct 2020
- “conventional” coastal
projection would entitle PH toboth areas claimed by MY(North area, plus most of JointArea)- cut-off of MY/BR claims?
- overlap with VN claim (NorthArea)- delimitation principles
beyond 200NM?

350NM

350NM

Future Submissions: China (?)

CN official ambiguity includes
entitling all islands/HTE’s withfull suite of maritime zones
Even without 9DL claim, andassuming compliance with SCS
Arbitration Award, there
remains potential to makeclaims based on Paracels &Pratas

M0N35

CN persists in excessive claim
and willing to use coercion toenforce it against smaller
StatesProspects and Futures• ECS claims practice among smaller Southeast Asian States exhibit
both convention and innovation to maximize claims within constricted
sea space– Determination of “proper” coastal projection?
– Nature of natural prolongation• Claims declared without prejudice to future delimitation;
establishment of entitlement appears to be primary goal as prelude tofuture delimitation negotiations ---seeds of future settlement?
• Geomorphological and geophysical characteristics, multiple overlaps
based on coastal projections, present complications: difficult to resolve
unless all parties involved

Prospects and Futures• Major challenges:– Southern area possibly subject to multiple entitlements– China and its insistence on excessive illegitimate claim,
and willingness to unilaterally impose itself on smallerneighbors• Stalemate likely, leaving ECS claim areas open tounilateral activities and multi-lateral disputes

Thank you very much!

END OF PRESENTATION