A Member of the ACRI Group UNCLOS Delimitations IAGCIOGP-Joint-HSSE-Security-Forum 29th of September 2016 1/51
Foreword ARGANS Ltd. is a British SME specialised in Earth Observation by Remote Sensing. Its main client is the European Space Agency (ESA) for whom it has developed amongst other tasks a number of applications for sensors calibration & intercalibration and data validation algorithms. ARGANS is currently the Copernicus Sentinel 1 and Sentinel 2 Mission Performance Centre. By associating Physicists and Hydrographers, ARGANS has further developed a unique capacity in Maritime Delimitations and Satellite Derived Bathymetry (SDB) which for the latter owes a lot to SHOM 30 years experience. www.argans.co.uk NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 2/ 2 51 / 18
Contents 1. 2. 3. 4. 5. 6. LOS Historical reminder - The Montego Bay convention The UNCLOS Treaty UNCLOS Definitions: Baselines, limits and EEZ Article 76: Legal Continental Shelf Nautical charts Principle of delimitations -Equidistance and Equity Deposit Obligation & Due publicity 7. The DOALOS and the CLCS 8. 9. 10. 11. Settlement of disputes - ITLOS Transit passage Rights and authorisations Maritime disputes : Gulf of Guinea, South China Sea, Mozambique Strait Conclusions NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 3/ 3 51 / 18
1.0 LOS Historical Reminder The real issue is Freedom of the Seas To make it simple, maritime superpowers advocate super freedom whilst small countries try to protect their coastal interests Two main concepts: Grotius 1609 (NL then maritime superpower) : Mare Liberum Selden 1635 (UK then small country) : Mare Closum Bynkershoek s compromise: the «cannon shot» rule at the origin of the 3 (or 4) miles limit. UNCLOS 1 Conference (Geneva 1956/58). Concepts of Territorial Sea, Contiguous Zone, High Sea, Continental shelf. UNCLOS 3 (1973/82) and Montego Bay (1982): United Nations Convention on the Law of the Sea: concepts of Archipelagic Waters, EEZ, Common Heritage of Mankind, Seabed Authority, etc. NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 4/ 4 51 / 18
1.1 The Montego Bay Convention The 1982 Convention comprises 320 articles distributed amongst 17 Sections and 9 annexes. The sections that concerns us most define LOS terms and legal regimes. They include the following parts: Part I Introduction. Article 1 Part II Territorial Sea and Contiguous Zone. Articles 2 33 Part III Straits used for International Navigation. Articles 34 45 Part IV Archipelagic States. Articles 46 54 Part V Exclusive Economic Zone. Articles 55 75 Part VI Continental Shelf. Articles 76 85 Part VII High Seas. Articles 86 120 Part VIII Régime of Islands. Article 121 Part IX Enclosed or semi-enclosed seas. Articles 122 123 Annex II Commission on the Limits of the Continental Shelf. NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 5/ 5 51 / 18
1.2 The UNCLOS Treaty http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_f.pdf NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 6/ 6 51 / 18
1.3 UNCLOS Ratifications In 2015, 166 countries had ratified UNCLOS, including the European Union, but not the US because of minor impingements on their sovereignty. Pays Signature Ratification Republic of Congo (Brazzaville) 10/12/82 09/07/88 Angola 10/12/82 05/12/90 Congo RDC 22/08/83 17/02/89 European Union 07/12/84 01/04/98 United States Not ratified China 10/12/82 07/06/96 Russia 10/12/82 12/03/97 NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 7/ 7 51 / 18
2.1 UNCLOS Definitions Normal baselines Straight baselines Closing lines Low-water mark Datums: LAT (Lowest Astronomical Tide); HAT (Highest Astronomical Tide) 24 miles NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 8/ 8 51 / 18
12 miles 24 miles 2.2 Baselines, Vertical Datums and limits UNCLOS Art. 5: Except where otherwise provided in this Convention, the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State. Baseline (measured from the low water Line) Territorial Sea Contiguous Zone EEZ 200 miles High Sea 0 m -200 m -3000 m -4000 m Continental Shelf The Area NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 9/ 9 51 / 18
Hydro Zer 2.2.1 Determination of Baselines (LAT) 29 28 27 NDVI X = 470 388.5 m Y = 566 135.0 m 26 25 16:25 UT 17/12/2014 LAT 0,7 0 m 25,65-0,7= 24,95 24 23 NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 10/ 51 / 18
2.2.2 Contribution of SDB to the determination of LAT Satellite image Bathymetric DTM Beach slope NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 11/ 51 / 18
2.3 Tidal corrections UNCLOS Article 5: «( ) the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State..» What must be avoided: Country A MLLW Baseline Country B LAT Baseline Country C MLWS Baseline Normally, predicted tides are good enough. In extreme cases, tides have to be observed. NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 12/ 51 / 18
2.4 Limits depicted on nautical charts High Water Mark (Coastline, Highest Astronomical Tide / HAT) Optionally, the maritime borders, negotiated or claimed Lowest Water Mark (Lowest Astronomical Tide / LAT), from which are measured the breadth of : the Territorial Sea (12 miles), the Contiguous Zone (24 miles), the EEZ (200 miles), and the 350 miles constraint line. Limits are traced by using the IHO C-51 s Wheel : NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 13/ 51 / 18
2.4.1 Practical tracing Use official charts, preferably prepared from original sources Avoid exotic documents (Oil Blocks, IHS maps, suspicious charts ) Proceed in 3 steps 1. First draft on a nautical chart to avoid gross mistakes 2. Better 2nd draft (precise NGA or satellite coastline + PPT) 3. 3rd draft with proper software (CARIS/LOTS, Geocap, ) Courtesy Lindsay Parson Is the country cut-off? or has it access to the High Sea? NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 14/ 51 / 18
2.4.2 First draft on nautical chart with compas and pencil to avoid gross mistakes Is Congo cut-off? NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 15/ 51 / 18
2.4.3 Then, better 2 nd draft (NGA coastline + PPT) Congo is probably cut-off! NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 16/ 51 / 18
2.4.4 Finally, 3rd draft with software and precise baseline Confirmation by software that Congo is cut-off between Gabon and Angola! Tracings plotted on an IHS map to assess the consequences of delimitations on oil blocks NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 17/ 51 / 18
2.4.5 Delimitations Software (CARIS/LOTS, Geocap, etc.) Several solutions are available; some software are currently used by the Commission on the Limits of the Continental Shelf (CLCS). Most HOs utilise CARIS LOTS which exists in two versions, «Limits and Boundaries» for the EEZ up to 200 miles (> 13 000 ) and «UN Article 76» for the Legal Continental Shelf (> 25 000). CARIS LOTS is a GIS that uses baselines, geodetic and geophysics data as input (coordinates, shape files, sediment thicknesses, images, charts, etc.) and already includes some current information (DTM, World coastline, etc.). CARIS LOTS calculates limits in projection (loxodroms) and on the ellipsoid (orthodroms), bisectors, equidistances, areas, Art. 76 CARIS LOTS further proposes 4/5 days training ( 5 000). Caution: All Delimitations software are GIGO (not to be confounded with GIGO: Garbage In, Gospel Out) NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 18/ 51 / 18
2.4.5 Delimitations Software (CARIS/LOTS, Geocap, etc.) http://www.caris.com/products/li mits http://www.geocap.no/software/maritime-delimitation-arcgis NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 19/ 51 / 18
3.0 Article 76 (extension of legal Continental Shelf beyond 200 miles) Source: IHO Talos Manual C-51 NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 20/ 51 / 18
3.0 Article 76 (extension of legal Continental Shelf beyond 200 miles) Source: Martin Pratt - Bordermap NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 21/ 51 / 18
3.1 Article 76 (extension of legal Continental Shelf beyond 200 miles) Example: French claims 36 maritime borders with 32 Riparian States In 2011, 20 borders delimitations had been agreed. The French HO (SHOM) is officially in charge of Delimitations NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 22/ 51 / 18
12 miles 24 miles 3.2 Article 76 (extension of legal Continental Shelf beyond 200 miles) 2 Rights (Hedberg & Gardiner) and 2 Constraints (350 miles and 2,500 m isobath + 100 miles) Baseline (measured from the low water Line) Territorial Sea Contiguous Zone EEZ 200 miles High Sea 0 m -200 m -3000 m Legal extension -4000 m Continental Shelf The Area NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 23/ 51 / 18
3.3 Article 76 : The Hedberg formula Rights conferred by Morphology Foot of the slope Hedberg Line 0 m -200 m -3000 m -4000 m 60 miles NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 24/ 51 / 18
3.4 Article 76: Foot of the slope Point of maximum gradient change at the base of the slope NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 25/ 51 / 18
3.5 Article 76: The Gardiner formula Rights conferred by Geology The outer edge of the margin should be delineated by a line representing the outermost points where the thickness of sedimentary rocks is at least 1 per cent of the distance from the foot of the slope, e.g. for a 2 000 metres sediment thickness, the Gardiner limit extends to 200 km. Foot of the slope 0 m -200 m Ligne de Gardiner -3000 m st = sediment thickness -4000 m D D = 100 st NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 26/ 51 / 18
3.6 Article 76 (extension of legal Continental Shelf beyond 200 miles) Combination of best rights and least constraints Not scaled-up Outer limit of the legal Continental Shelf Baseline Limits are defined by segments 60 miles between connecting points NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 27/ 51 / 18
3.7 Article 76 (extension of legal Continental Shelf beyond 200 miles) Geophysical surveys NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 28/ 51 / 18
4.0 Nautical charts Nautical Charts provide UNCLOS with an official source of information: UNCLOS Art. 5: Except where otherwise provided in this Convention, the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State.. and support of publicity : UNCLOS Art. 16 # 1: The baselines for measuring the breadth of the territorial sea. shall be shown on charts of a scale or scales adequate for ascertaining their position. # 2: The coastal State shall give due publicity to such charts and shall deposit a copy of each such chart with the Secretary-General of the United Nations. DOALOS Handbook (Baseline 8) further recommends: [for such special baseline charts] the scale should be within the range 1:50,000 to 1:200,000. and IHO C-51 3.7:...The plotting errors (approximately 0.2 mm on paper, which is equivalent to the width of a drawn ink line) are as follows e.g. 70 m for a chart at 1:350,000 NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 29/ 51 / 18
4.1 The point of nautical charts Support territorial claims Enable users to comply with national maritime regulations; Enable States authorities (Coastguards, Customs, Navies) to enforce regulations and punish transgressions NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 30/ 51 / 18
4.2 Source Diagrams Chart INT 2806 at 1:350,000 (BA 1383 - SHOM 7786) NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 31/ 51 / 18
5.0 Principles of delimitations: Equidistance and Equity Equidistance is the basis of delimitations. It has the merit of offering a unique solution, but is often inequitable and may cutoff riparian countries. Bisector, traced between terminal border points is less inequitable, but may offer an infinity of solutions. Perpendicular to the coast has also the favour of Tribunals when appropriate (e.g. Guinea/Guinea Bissau). There are many other alternatives: corridors to avoid being cutoff (e.g. Monaco), sharing proportional to the coastline and meeting the test of proportionality, etc.. Whatever the Relevant Circumstances (socio-economy, security, geomorphology, ), delimitations always end up by sharing an area. NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 32/ 51 / 18
5.1 Equidistances and Bisectors NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 33/ 51 / 18
5.2 Perpendicular to the coast (Meridians) NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 34/ 51 / 18
5.3.1 JURISPRUDENCES Source: Durham University Maritime Corridor NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 35/ 51 / 18
5.3.2 JURISPRUDENCES Source: SHOM Maritime Corridor The memorable Channel arbitration which upheld the principle of equity NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 36/ 51 / 18
5.3.3 JURISPRUDENCES Source: Durham University perpendicular to the coast NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 37/ 51 / 18
5.3.4 JURISPRUDENCES Joint development zone Source: Durham University NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 38/ 51 / 18
6. Deposit Obligation & Due Publicity http://www.un.org/depts/los/index.htm Which information? charts showing straight baselines and archipelagic baselines as well as the outer limits of the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf; alternatively, the lists of geographical coordinates of points, specifying the geodetic datum, may be substituted. Deposit Obligation: In accordance with UNCLOS, Art.16 (2), 47 (9), 75 (2) and 84 (2), Coastal State shall give due publicity to such charts or lists of geographical coordinates and shall deposit a copy of each such chart or list with the Secretary- General of the United Nations. How? This act is addressed to the Secretary-General in the form of a note verbale or a letter by the Permanent Representative to the United Nations or other person duly authorized to do so Example: (France/Tromelin) NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 39/ 51 / 18
7.0 The DOALOS The Division for Ocean Affairs and the Law of the Sea acts as the UN Secretariat for UNCLOS. http://www.un.org/depts/los/index.htm DOALOS is endowed with various means (SIG, internet site, storage capacity, etc.) to archive official charts and lists of coordinates and provide due publicity. DOALOS can propose technical assistance to Developing Countries (training, funding.) It provides administrative and technical support to the ITLOS. It publishes guidelines on maritime baselines, definition of the continental shelf, and marine scientific research Three times a year, it prepares LOS Bulletins relevant to the Law of the Sea, including national legislation, bilateral agreements and multilateral treaties, as well as information on decisions of the International Court of Justice, arbitration tribunals and other dispute settlement procedures: http://www.un.org/depts/los/doalos_publications/los_bult.htm NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 40/ 51 / 18
7.1 The Commission on the Limits of the Continental Shelf The CLCS is composed of 21 members, experts in geology, geophysics or hydrography, elected by States Parties to UNCLOS for 5 year terms. Functions: Consider data submitted by coastal states and make recommendations on the outer limit of the continental shelf. Provide scientific and technical advice during preparation of data. Data examined in depth by 7-member sub commissions. CLCS will not consider submissions relating to disputed areas without the prior consent of all parties to the dispute. 77 full or partial submissions to date. 22 recommendations. About 30 preliminary approaches to be turned into formal submissions. Source: Martin Pratt - Bordermap NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 41/ 51 / 18
8.0 Settlement of disputes UNCLOS Part XV makes it an obligation for State Parties to settle their disputes by peaceful means and provides procedures where no settlement has been reached. UNCLOS, Art 287(1): When signing, ratifying or acceding to this Convention or at any time thereafter, a State shall be free to choose, by means of a written declaration, one or more of the following means for the settlement of disputes concerning the interpretation or application of this Convention: The International Tribunal for the Law of the Sea (ITLOS in Hamburg); The International Court of Justice (ICJ in The Hague); An arbitral tribunal constituted in accordance with UNCLOS, Annex VII; A special arbitral tribunal constituted in accordance with UNCLOS, Annex VIII, for one or more of the categories of dispute. The present trend is to recourse more and more to ITLOS, which has the merit of being free of charge and be relatively fast (about 18 months against 3 years and 20/30 M for the ICJ). https://www.itlos.org/en/general-information/ NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 42/ 51 / 18
8.1 The International Tribunal for the Law of the Sea (ITLOS) ITLOS is an independent judicial body established in October 1996 by UNCLOS to adjudicate disputes arising out of the interpretation and application of the Convention. It is composed of 21, highly qualified and independent members, elected amongst 21 different states. It is based in Hamburg To date, twenty-five cases have been submitted to the Tribunal. 2016 budget 19 M supported by the States Parties. NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 43/ 51 / 18
9.0 Transit Passage, Rights and authorisations Source: Geoscience Australia Authorisation required NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 44/ 51 / 18
9.1 Rights and authorisations Coastal States enjoy full sovereignty on Territorial Sea (and airspace above). They also enjoy limited sovereignty on Contiguous zone: They have the right to enforce national regulations and punish infringements, but not to restrict freedom of navigation. EEZ: Sovereign rights for management, exploration and exploitation of resources in continental shelf and water column. Legal extension of EEZ (Art. 76): same sovereignty rights as EEZ, but limited to the continental shelf. Whenever there is sovereignty, authorisation to explore should be sought from Coastal States, but permission should normally be granted, except in special circumstances. CAUTION: There are wide differences of appreciation. Whilst some coastal States require consent with respect to surveys conducted in their EEZ (e.g. China), others consider that surveys can be conducted freely in the EEZ (US, UK ). NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 45/ 51 / 18
10.0 Maritime disputes: Gulf of Guinea Benin and Togo are cut-off. ECOWAS has volunteered to mediate and suggested a Meridian solution NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 46/ 51 / 18
10.1 Maritime disputes : Dagat Timog Tsina/ South China Sea/ 南中國海 /Biển Đông Claimants: Brunei, China (PRC and ROC), Indonesia, Malaysia, Philippines, Vietnam NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 47/ 51 / 18
10.2 Maritime disputes : Mozambique Strait Piracy and Marine Highways Low intensity dispute opposing the African Union, the Comoros, France and Mauritius. The current trend is a smooth evolution towards bilateral co-operation agreements for the exploitation of resources. NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 48/ 51 / 18
11. Conclusions As recommended by UNCLOS Art 283, parties to disputes should proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means. This especially applies to exchange of technical facts and figures, which should never be subject to interpretations. Delimitations should be conducted in the right order: 1. Exchange of technical data: Tides, baselines, software, etc. 2. Agreement on equidistance 3. 200 miles EEZ 4. And only then, extension of Legal Continental shelf (Art.76) NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 49/ 51 / 18
JLaporte@argans.co.uk NSHC32 IAGCIOGP-Joint-HSSE-Security-Forum Dublin 21-23 June 2016 29th of September 2016 50/ 51 / 18
A Member of the ACRI Group UNCLOS Delimitations Any Questions? IAGCIOGP-Joint-HSSE-Security-Forum 29th of September 2016 51/51