Ladies and gentlemen,

I wish to welcome you today to this roundtable discussion organised in cooperation with the International Max Planck Research School for Maritime Affairs and with the support of the Nippon Foundation. I note with pleasure the presence of Professor Ehlers, who is director of the Max Planck Research School, Professor Lagoni, and also Dr. Papanicolopulu, who gave a very interesting lecture on “Jurisdiction of States over Persons at Sea” at the Max Planck Institute yesterday. But today the topic is “Current Issues Regarding the Delimitation of the Outer Continental Shelf”. This is a title intentionally left vague in the sense that these issues relate, broadly speaking, to the extension of the outer continental shelf.

I am glad that we could bring together today four outstanding experts on issues relating to the law of the sea, the outer continental shelf and the deep sea bed, and I will simply introduce each of them:

The president of the tribunal, Judge Yanai, will chair the panel discussion of tonight. President Yanai has been a judge of the tribunal since 1 October 2005, and on 1 October of last year he was elected president of the tribunal. Before serving at the tribunal, President Yanai held several high positions at the Ministry of Foreign Affairs of Japan and he was vice-minister of foreign affairs and ambassador of Japan to the USA. He was also professor of international law at Chuo University in Tokyo.

President Yanai’s statement will be followed by comments from Judge Vladimir Golitsyn. Judge Golitsyn has been a member of the tribunal since 1 October 2008, and he is currently serving as president of the tribunal’s Seabed Disputes Chamber. Previously, Judge Golitsyn was director of the Division for Ocean Affairs and the Law of the Sea of the United Nations, with the legal office, and he is also a professor of international law at the Moscow State University of International Relations.

The next speaker is Mr. Michael Lodge. Mr. Lodge is legal counsel and deputy to the secretary general of the International Seabed Authority. Earlier in his career, Mr. Lodge was legal counsel to the South Pacific Forum Fisheries Agency, and he is also a barrister of London. During the proceedings on Case 17 before the Seabed Disputes Chamber, Mr. Lodge represented the International Seabed Authority which had submitted the request at the Chamber.

Finally, Mr. Chris Carleton will make a statement. Mr. Carleton is a hydrographer and a specialist in technical aspects of the law of the sea. He served as head of the Law of the Sea Division of the UK Hydrographic Office and currently is the chairman of the Advisory Board on the Law of the Sea of the International Hydrographic Organisation, known to some of you under the acronym ABLOS. Mr. Carleton also has great experience in maritime boundary delimitation, both through bilateral negotiations and through third party dispute settlements.

After the remarks of the speakers, a discussion will follow, but I will now give the floor to President Yanai who will chair the panel discussion of tonight.

Thank you.

Good evening, ladies and gentlemen,

I thank Mr. Gautier for his kind introduction. It is really a distinct honour and privilege to chair this very distinguished panel this evening, and I would like to welcome all of you to this panel discussion. On behalf of the International Tribunal for the Law of the Sea I also would like to thank the International Max Planck Research School for Maritime Affairs for co-hosting this panel. My thanks go also to the Nippon foundation for its generous financial support. I would like to welcome the distinguished panellists who join us today.

Ladies and gentlemen, writing in the year 1950, the German public international lawyer Karl Schmidt describes in his book “The Nomos of the Earth” the history of international law as a history of land appropriations and at certain times of sea appropriations. Of course, there is no reason to doubt the fundamental significance of territoriality and jurisdiction for the development of international law. However, what Schmidt could not know in 1950 was that the appropriation of the oceans would actually grow into one of the major driving forces of international law in the second half of the twentieth century. My legal staff told me that the word “nomos” is a Greek word which means, more or less, law and order. Anyway, it’s Greek to me, but I learned something recently.

It was in particular the 1982 United Nations Convention on the Law of the Sea which brought about considerable or massive extension of coastal states’ rights over maritime areas. The regime of the continental shelf, some aspects of which are a topic this evening, is a good example. The Convention not only grants sovereign rights to all coastal states over the seabed up to 200 nautical miles, but also provides for sovereign rights of coastal states over the continental shelf beyond 200 nautical miles, by reference to a set of scientific criteria provided for in the Convention. Of course, the regime of the so-called outer continental shelf is not without conditions. For instance, the limit of the continental shelf of a coastal state can be final and binding only when it is established on the basis of the recommendations made by the Commission on the Limits of the Continental Shelf. In addition, coastal states are under an obligation to make payments or contributions in kind through the International Seabed Authority in respect of the exploitation of the non-living resources of the continental shelf beyond 200 nautical miles.

Ladies and gentlemen, with the extension of coastal states’ rights over maritime areas the potential for conflicts resulting from overlapping claims increased as well. As a consequence, over several decades international courts and tribunals have been faced with a growing number of cases involving the delimitation of maritime areas disputed between two or even more states. Most recently, the International Tribunal for the Law of the Sea also made its first contribution to the international case law on maritime delimitation.

On 14 March 2012 it gave a judgment in the dispute concerning the delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal. In this judgment the tribunal determined the maritime boundary between the parties in relation to the territorial sea, the exclusive economic zone and the continental shelf. The distinguishing feature of this case was that the tribunal was also called upon to delimit the continental shelf beyond 200 nautical miles. Only rarely had this become an issue in previous cases before international courts and tribunals. In the Nicaragua vs Honduras case, the International Court of Justice had denied the possibility of extending a delimitation line beyond 200 nautical miles in the absence of a review by the Commission on the Limits of the Continental Shelf. The arbitral tribunal in the case between Barbados and Trinidad Tobago, on the other hand, found that its jurisdiction included the delimitation of the continental shelf beyond 200 nautical miles. It did not exercise this jurisdiction, however, as the final maritime boundary in this case ended before it reached the area beyond 200 nautical miles. The International Tribunal for the Law of the Sea came to the conclusion that it had jurisdiction to delimit the continental shelf in its entirety. Having determined that the parties had overlapping entitlement to the continental shelf beyond 200 nautical miles, the tribunal actually proceeded to effect the delimitation.

I wish to highlight three legal issues which the tribunal was confronted with in this context and which I consider particularly interesting for the purposes of our discussions this evening: One, the relationship between the Tribunal’s jurisdiction and the competence of the Commission on the Limits of the Continental Shelf; two, the relationship between delimitation and entitlement; and, three, the question of the delimitation method.

With respect to the involvement of the Commission on the Limits of the Conti-nental Shelf, the Tribunal noted that the Commission’s rules of procedure provide that the Commission shall not consider and qualify submissions in cases where a land or maritime dispute exists. In fact, the Commission had deferred consideration of the submissions which it had received from Bangladesh and Myanmar. The Tribunal considered this to be an impasse and observed in para 392 of the judgment as follows: “In the view of the Tribunal it would be contrary to the object and purpose of the Convention not to resolve the existing impasse. Inaction in the present case by the Commission and the Tribunal, two organs created by the Convention to ensure the effective implementation of its provisions, would leave the Parties in a position where they may be unable to benefit fully from their rights over the continental shelf.” In the view of the Tribunal, exercising its jurisdiction to delimit the continental shelf beyond 200 nautical miles does not encroach on the functions of the Commission. Rather, it emphasised that such delimitation does not preclude the Commission from examining submissions and issuing appropriate recommendations. And this is without prejudice to the establishment of the outer limits of the continental shelf. These findings are stated in paras 393 and 394 of the judgment.

This brings me to the second issue which I mentioned: the relationship between delimitation and entitlement. Both are distinct concepts, of course, but they are also interrelated. The Tribunal clearly stated, and I quote, that “[d]elimitation presupposes an area of overlapping entitlements.” This is in para 397 of the judgment. And in this connection I would like to quote another part of the judgement, namely paras 443 and 444. In 443, and I quote: “Notwithstanding the overlapping areas indicated in the submissions of the Parties to the commission, the Tribunal would have been hesitant to proceed with the delimitation of the area beyond 200 nautical miles had it concluded that there was significant uncertainty as to the existence of a continental margin in the area in question.” In the following paragraph the Tribunal stated as follows: “In this regard the Tribunal notes that the Bay of Bengal presents a unique situation as acknowledged in the course of negotiations at the Third United Nations Conference on the Law of the Sea. As confirmed in the experts’ reports presented by Bangladesh during the proceedings, which were not challenged by Myanmar, the sea floor of the Bay of Bengal is covered by a thick layer of sediments some 14 to 22 kilometres deep originating in the Himalayas and the Tibetan plateau, having accumulated in the Bay of Bengal over several thousands of years.” So this is really a very special situation in the Bay of Bengal. The entitlement of a coastal state to the continental shelf beyond 200 nautical miles follows from its sovereignty over the land territory. As is well known, the outer limits of such continental shelf can only become finally binding when they are established on the basis of recommendations issued by the Commission on the Limits of the Continental Shelf. This does not mean, however, that a coastal state’s entitlement does depend on any procedural requirements.

And I quote another paragraph, namely 410. The Tribunal came therefore to the conclusion that “the fact that the outer limits of the continental shelf beyond 200 nautical miles have not been established does not imply that the Tribunal must refrain from determining the existence of entitlement to the continental shelf and delimiting the continental shelf between the parties concerned.” Finally, as regards the methods of delimitation, the Tribunal first decided to employ the equidistance/relevant circumstances method for the delimitation of the continental shelf within 200 nautical miles. When addressing the delimitation of the continental shelf beyond that limit, it was again confronted with the question of which method to apply. In this connection the Tribunal stated, and I quote, “Article 83 of the Convention applies equally to the delimitation of the continental shelf both within and beyond 200 nautical miles.” The Tribunal further observed, and I quote again: “The delimitation method to be employed in the present case for the continental shelf beyond 200 nautical miles should not differ from that within 200 nautical miles.” Accordingly, the equidistance/relevant circumstances method continues to apply for the delimitation of the continental shelf beyond 200 nautical miles.

Ladies and gentlemen, with these considerations I wish to end my introductory remarks and enter into the roundtable discussion. It will hopefully shed some light on how the international legal regime on the continental shelf beyond 200 nautical miles is operating and will develop in the future.

Now, I would like to call upon the first speaker, my colleague Judge Golitsyn, who is the president of the Seabed Disputes Chamber of this Tribunal, to give us his comments on the topics.

Thank you Mr. President.

Well, as judge and president of the chamber, of course I am impartial and objective, but as a professor of international law, it was mentioned I also lecture at the Moscow State University, I am known to be provocative. So I will try to balance these two parts of my nature in my short remarks.

Although the topic of our discussion today is delimitation of maritime areas, as was mentioned I am president of the Seabed Disputes Chamber, and of course the question arises whether the Seabed Disputes Chamber will play any role in delimitation of maritime areas. My answer is that I doubt that the Seabed Distribute Chamber will ever be involved in this type of activity. At least this is not the type of jurisdiction which is defined in Article 187 of the Convention which relates to the jurisprudence of the Seabed Disputes Chamber. At the same time I would like to take advantage of the presence of legal counsel of the Seabed Authority to address some of the issues which probably will be faced by the Seabed Disputes Chamber.