The project on the Delimitation of the Continental Shelf (DECOM) as provided in the United Nations Convention on the Law of the Sea (UNCLOS) was initiated as far back as 1999 by Sri Lanka and completed in 2009. It took the Government of Sri Lanka (GoSL) nearly 10 years to complete this project without any tangible results.
Submission of claims to UNCLCS
The relevant information beyond the 200 nautical miles was submitted by Sri Lanka on May 8, 2009 to the United Nations Commission on the Continental Shelf (UNCLCS) in New York. Provision for the submission by Sri Lanka is in accordance with the Statement of Understanding applied to the southern states of the Bay of Bengal namely Sri Lanka and India adopted by the UN Conference on the Law of the Sea on August 29, 1980 and contained in Annex 11 of its Final Act of UNCLOS.
It is noted that UNCLOS entered into force for Sri Lanka on November 16, 1994. The submission was made in respect to a part of the area of three million square kilometres of a submarine fan of sediments in the Bay of Bengal. This unique feature spans an area of 3000 kilometres in length and 830 to 1430 kilometres in width. The Bay of Bengal is bordered by Sri Lanka, India, Bangladesh, Myanmar, the Andaman–Nicobar Islands and Sumatra. Sri Lanka’s claim of the extended continental shelf is about 20 times the land area.
In this article the writer will summarize all issues involved in this project since its inception in 1999 and leave it to the readers to judge what had happened and who should be held responsible for the delay in acquisition of the large Sri Lankan ocean space of about 1,300,00 square kilometres in extent.
National Ocean Affairs Committee
It is learnt that the project is now handled by a National Ocean Affairs Committee (NOAC) appointed by the Cabinet of Ministers of the former government. The chairman of this committee reportedly has neither any experience nor knowledge on the Law of the Sea and is not able to understand, analyse and articulate the intricate issues involved in delimitation of the continental shelf as expected under the Rules of Procedure and Technical Guidelines of the UNCLCS.
Moreover, this official reportedly has no knowledge of international law and is said to be a complete misfit to hold this post, which was likely a political appointment. It is reliably learnt that the observations of the Foreign Ministry and some of the other line ministries were not obtained on the Cabinet paper for appointment of the NOAC.
The writer is also baffled why an official from the State Enterprise Management Authority (SEMA) that has no mandate for ocean affairs should be involved in this project, which comes under the purview of the Foreign Affairs Ministry and the Attorney General’s Department that are legally empowered to negotiate the continental shelf boundary that will be recognized by the United Nations.
The writer strongly urges the new government to appoint a commission to investigate this project as it was not properly managed from its inception in 2001 with wastage of foreign and local funds.
The present developments remind the writer of an investigative article published in a Sunday newspaper on July 6, 2003 titled ‘Make merry over the continental shelf’ and such merry making has continued to the present day with the NCOA groping in the dark and wasting public funds without any results.
It is ironical that the NOAC Chairman had got the Treasury to allocate Rs.200 million in the 2013 budget for the establishment of a Secretariat on the Ocean Economic Development Strategy, which is not in the public domain and it should be queried whether this Secretariat has been established or how the allocation was expended.
It is known that the Chairman of the NOAC headed a number of delegations to the United Nations General Assembly and it was also planned by the NOAC to have a seminar internationalizing Sri Lanka’s claim to the continental shelf in New York at the celebrations of the 20th anniversary on the entry into force of the UNCLOS in 2014.
The Treasury and Foreign Affairs Ministry should query the expenditure involved by the delegations to the General Assembly in New York headed by the NOAC Chairman and the number of delegates, etc., and their qualifications and experience in the UNCLOS and UNCLCS. One delegate was a retired officer of the Foreign Affairs Ministry now living in Europe.
It is also noted that our Permanent Representative to the United Nations (PRUN) in New York, who also participated in these deliberations, is not an expert on the Law of the Sea but had worked in the United Nations Treaties Division of the Department of Legal Affairs and according to the writer’s experience, does not have the exposure to the UNCLOS.
As a part of the writer’s duties as the Economic Affairs Officer of the United Nations ESCAP for over 14 years, the writer was in charge of marine affairs and was actively involved in providing advice to the member countries including India, China, countries in the Southeast, South and East Asia as well as the Small Island Developing States (SIDS) in the South Pacific Ocean on their rights and obligations on accession and ratification of the 1983 United Nations Convention on the Law of the Sea. I was also involved in attempts to resolve maritime boundary disputes in the South and East China Seas.
A Sunday newspaper in 2003 carried an article titled ‘Make merry over the continental shelf’, which reported that a Sri Lankan expatriate was paid US $ 90,000 as fees for formulating the DECOM project out of a total project cost of US $ 119,000. Certain high-level officials have been aware of the payment and the Norwegian embassy confirmed that the money was paid in Sri Lanka direct to the expatriate known to the writer as he was a trainee geologist at the Geological Survey Department (present GSMB) in early 1980s.
The DECOM project was approved by the GoSL in 2003 with a foreign component of US $ 6.14 million funded by Norway and the local cost of Rs.557 million for three years.
The contract for the 2 D seismic survey to determine sediment thickness of over one kilometre in the extended seabed was awarded to a Norwegian company in 2005 but was later cancelled.
From 2004, this project was implemented by a director, who was earlier the GSMB Director and had an office at NARA. A Technical Committee and a High-Level Committee were appointed to implement this project.
The director, a Sri Lankan national, was paid US $ 1500 a month and this post was not advertised after calling Expressions of Interest (EOIs) and his experience and qualifications in oceanography or the Law of the Sea were questionable.
However, in early 2007, the above committees were dissolved and a High Level Committee of Experts (HLCE) was appointed by the former President.
In April 2007, the GEMS of United Kingdom was awarded a contract to carry out a 2 D seismic survey for 6300 kilometres of lines to determine sediment thickness of over one kilometre. In the area off shore beyond 200 nautical miles at a cost of US $ 3.72 million but a Sunday newspaper dated August 10, 2008 quoting an opposition Member of Parliament, reported that the costs had escalated to US $ 7.2 million.
The writer is also aware that NORAD, the Norwegian aid agency, appointed the Norwegian Petroleum Directorate (NPD) as the implementing agency and the same Sri Lankan expatriate who formulated the DECOM project in 2001 and paid US $ 90,000, was also the chief consultant, a clear case of conflict of interest.
Since there was a dispute between the NPD and HLCE, Norway pulled out of the project before it was completed.
On page 13 of the Executive Summary on the submission to UNCLCS, there is no mention of NPD or the Sri Lankan expatriate consultant who played a pivotal role in the project and also as the Chairman of Ocean Geo Consultants of Norway, which formulated the project earlier. The British company GEMS that carried out the seismic survey is also not mentioned.
The detailed analyses by the writer of the main issues related to the submission were published in Sunday Times FT dated September 27, 2009 under the caption ‘DECOM project: Sri Lanka’s case for the continental margin’ and Sunday Times FT of September 7, 2008 titled ‘Delimitation of the continental shelf of Sri Lanka’. Readers who are interested in technical, financial as well as operational details could refer to these two articles on the web.
Developments since submission of Sri Lanka’s claim to UNCLCS
It is unfortunate that the Foreign Affairs Ministry lost its legitimate function as the focal point for pursuing the above claim. This was hijacked by an official as mentioned earlier from SEMA, which had the remotest connection to ocean affairs. It is completely inappropriate for the NOAC Chairman to handle delicate issues related to negotiations on our continental shelf.
It was also reported in a website that the GoSL is deploying a special team of multidisciplinary ‘experts’ including the previous delegation of members, who successfully secured the ‘Omnibus Resolution’ to once again lobby state parties attending the 22nd meeting in New York in June 2012. The NOAC Chairman and his six-member delegation except three had no experience in such lobbying as they were not involved in the earlier negotiations for the inclusion of Annexure 11 of the Final Act of UNCLOS.
A website titled ‘Expatriate Sri Lankan’ (http://new srilankan foundation.org/sri-lanka-to-claim-for-extension-osdcontinentalshelf-margin/) on June 3, 2012 reported that the newly appointed NOAC Chairman stated that Sri Lanka had suffered an inequity as a direct result of slow progress of the workload before the UNCLCS and submitted the ‘Omnibus Resolution’ at the UN General Assembly sessions in 2009. It must be queried whether this resolution was approved by the Foreign Affairs Minister or whether it was a unilateral decision of the NOAC Chairman.
This unwarranted action of the NOAC Chairman by the above resolution had been counter to the application of Annex 11 to only to India and Sri Lanka and implied the reopening of the debate on such application.
To this end, Prof. Barbara Kwiatkowska in a publication -‘Submissions to the UNCLCS in Cases of Disputed Maritime Boundary Delimitations or other Unresolved Land or Maritime Disputes of Developing States’ - in page 122 states, “It is noteworthy that so was this Annex 11 on the Southern Bay of Bengal indeed agreed as applicable only to Sri Lanka and India but that its last minute inclusion – upon initiative of Sri Lanka’s Ambassador Hiran Jayewardene, Secretary General of Indian Ocean Marine Affairs Cooperation (IOMAC) – into the UNCLOS 111 Final Act, was indeed to avoid reopening debate which could have required inclusion of special provisions of possible general application e.g. Gulf of Alaska in UNCLOS.”
Accordingly, the actions of the chairman in lobbying Sri Lanka’s case with Myanmar Bangladesh and Kenya, according to the records of the UNCLCS, have now strengthened the case of these countries for application of Annex 11 before the bilateral settlement by India and Sri Lanka.
The settlement of the limits of the continental shelf in Sri Lanka was complicated after certain statements made by responsible Sri Lankan officials in 2009 that Sri Lanka is now entitled to the extension of the continental shelf up to the Andaman Islands intruding into India’s maritime jurisdiction known to contain significant amounts of frozen methane gas. As a consequence, India as a negotiating strategy has not submitted its claim on the Annex 11 to the present day.
In the meantime, Bangladesh, Myanmar and Kenya sent notes verbal to the UNCLCS reserving its rights to apply Annex 11 of the Final Act of UNCLOS so that it can be applied to a coastal state upon valid demonstration by that state of the special conditions and the inequity that would arise rather than geographical location.
Suggested approach by Sri Lanka to determine the continental shelf limits
The initiatives taken by the NOAC Chairman since 2011 by lobbying state parties to the UNCLCS have resulted in internationalizing Sri Lanka’s case on the application of Annex 11 of the final Act of UNCLOS.
Instead of resolving this issue on a bilateral basis as provided in Paragraph 5 (a) of Annex 1 of the Rules of Procedure of the UNCLCS, which states, “In case of a land or maritime dispute exists, the commission shall not consider and qualify as submission made by any of the states concerned in the dispute. However, the commission may consider one or more submissions in the areas under dispute with prior consent given by all states that are parties to such a dispute.”
Accordingly, India and Sri Lanka should make a joint submission after settling the overlapping claims on the northeast continental shelf boundary without trying to lobby with other state parties.
It is noted that Myanmar and Bangladesh have settled their dispute concerning delimitation of the maritime boundary in the Bay of Bengal, according to the judgment delivered on March 14, 2012 by the International Tribunal on the Law of the Sea. In the matter of the Bay of Bengal Maritime Boundary Arbitration between Bangladesh and the Republic of India, an award was made on July 2014 in favour of Bangladesh.
Accordingly, the maritime disputes of the three main countries in the Bay of Bengal have now been settled and international oil companies are showing a keen interest to carry out E&P operations in these countries leaving Sri Lanka out with serious delays in settling our maritime boundary in the east under Annex 11 of the final Act of UNCLOS.
In order to expedite the delimitation of our continental shelf boundary with India by application of Annex 11 of the final Act of UNCLOS, the writer strongly recommends the following:
Abolish the NOAC and bring this project under the Foreign Affairs Ministry.
Include the subject of Delimitation of the Continental Shelf of Sri Lanka for bilateral negotiations at Sri Lanka-India Joint Commission at its next session.
Deliberate on the appointment of negotiating committees from the Sri Lankan and Indian sides on the resolution of the continental shelf boundary in the southern Bay of Bengal.
Identify the negotiating team from Sri Lanka consisting of the representatives from the Foreign Ministry, Attorney General’s Department, National Hydrographic Office and Oceanography Division of NARA.
Identify a senior consultant who had negotiated Annex 11 of the final Act of UNCLOS to lead the Sri Lanka team for bilateral negotiations.
Make a joint submission to the UNCLCS with India for an early resolution of our dispute on the continental shelf boundary.
The Sri Lankan negotiating team should also resolve the new six turning points of the maritime boundary in the Cauvery basin after the submission of India on the continental shelf to the UNCLCS under Article 76 of UNCLOS.
Appoint a committee of inquiry on the conduct of the DECOM Project from 2001 and the total expenditure incurred by the GoSL with foreign funding from NORAD, the Norwegian aid agency.
Investigate the activities of the NCOA whose Chairman was from SEMA having no legitimate rights to ocean affairs.
Query the composition of the delegations to Meetings of State Parties to UNCLCS and General Assembly Sessions of the United Nations and what benefits accrued to Sri Lanka by these delegations.
Investigate whether the NOAC Chairman had tried recourse to arbitration on our continental shelf boundary dispute with India and whether the Foreign Affairs Ministry and Attorney General’s Department had approved such action.
The DECOM project, which took almost 10 years for completion, was not properly managed as the officials concerned could not understand in depth the technical and legal issues involved.
The GoSL had to depend on an expatriate Sri Lankan, who had his own company and was engaged in the formulation of the project as well as working as a consultant with conflict of interests.
A highly qualified and senior consultant in this subject, who was responsible for the finalization of Annex 11 of the Final Act of UNCLOS was not identified as the NOAC Chairman and overlooked by the Foreign Affairs Ministry.
The writer strongly advises the new Foreign Affairs Minister to take immediate action to take over the leadership of this important project and initiate bilateral discussions with India to resolve our continental shelf boundary by negotiations with a team of experienced and competent officials who had forged ahead at the United Nations Conference on the Law of the Sea from late 1970s the deliberations related to this special method for delimitation of the continental shelf boundary by application of Annex 11 of the Final Act of UNCLOS.
(Dulip Jayawardena, a retired Economic Affairs Officer United Nations ESCAP, can be reached at firstname.lastname@example.org)