The demonstration of entitlement to outer continental shelf, ie. areas of continental shelf beyond the 200 nautical miles (M) distance from the baselines from which the breadth of the territorial sea is measured. However, while States Parties to the United Nations Convention on the Law of the Sea (UNCLOS) invest significant pecuniary means for the above-mentioned, there is a priori no guarantee that the claim of entitlement to such areas will be considered by the Commission on the Limits of the Continental Shelf (CLCS), established under Annex II to UNCLOS.
The CLCS is a treaty body, which under Article 2(1) of Annex II to UNCLOS, consists of experts in geology, geophysics or hydrography “who shall serve in their personal capacities”. Under Article 76(8) of UNCLOS, the CLCS makes non-binding recommendations, which could suggest that the fulfilment of its task necessarily does not prejudice the delimitation of boundaries. However, Article 9 of Annex II obliges the CLCS not to take actions that “prejudice matters relating to the delimitation of boundaries between States with opposite and adjacent coasts”. A fortiori, the proposition can be made that the actions of the CLCS as such can prejudice matters regarding delimitation.
A non-negligible State practice suggests that Article 5(a) of Annex I of the Rules of Procedure of the Commission on the Limits of the Continental Shelf (RoP) may be invoked by State A with the aim and effect to block the consideration of any submission transmitted under Article 76(8) and Annex II to UNCLOS by neighboring State B with whom State A has an adjacent or opposite coast. Under this practice, the CLCS has stalled the consideration of the relevant submissions. It remains to be determined whether the above-mentioned practice is consistent with UNCLOS as well aswith Annex I of the RoP. This piece will argue that the above-mentioned practice is inconsistent with UNCLOS as it creates rights that go beyond UNCLOS. It will also be demonstrated that this practice is not consistent with Annex I of the RoP.
A Treaty Body
Article 76(10) of UNCLOS provides that “[t]he provisions of this article are without prejudice to the question of delimitation of the continental shelf between States with opposite or adjacent coasts”. Article 76(10) is a safeguard clause. It indicates that the establishment of outer limits of the continental shelf on the one hand and the delimitation of continental shelf on the other hand are two separate matters.
Accordingly, the question arises how non-binding acts of a treaty body regarding the establishment of outer limits of the continental shelf can, to paraphrase Article 9 of Annex II, prejudice matters relating to the delimitation of boundaries. Indeed, it appears that allowing actions that refrain the CLCS from considering a submission can be seen to undermine the role of the CLCS. Under Article 3(1)(a) of Annex II to UNCLOS, the CLCS “shall [..] consider the data and other material submitted by coastal States [..] and make recommendations” [emphasis added]. The proposition that any State with opposite or adjacent coasts to a submitting coastal State has full discretion to invoke the existence of a dispute with the necessary and immediate implication that the CLCS is prevented from fulfilling its mandate with the regard to the submission of the neighboring States questions the object and purpose of the procedural obligation in Article 76(8) of UNCLOS to submit relevant data and information to the CLCS. The rationale of the above assertion appears confirmed by an analogical analysis in so far concerns the question of admissible exercise of claimed sovereign rights in disputed areas. Accepting the proposition that any invocation of Annex I to the RoP rightly by State A may block the consideration of a submission of State B would also appear justified if neither State A or State B were entitled to exercise any powers in the relevant disputed area. Yet, as appears below, this is not the case.
Disputed Areas
Under Article 83(3) of UNCLOS, States parties to a delimitation dispute “shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement”. In Guyana/Suriname, the arbitral tribunal established that a distinction is “to be made between activities that lead to a permanent physical change, such as exploitation of oil and gas reserves, and those that do not, such as seismic exploration”, the latter being permissible by contrast to the former that were considered impermissible. By contrast, in Ghana/Côte d’Ivoire, the Special Chamber of the International Tribunal for the Law of the Sea (ITLOS) refused to uphold the argument that exploitation of hydrocarbons in a disputed area would necessarily be prohibited under Article 83(3). While being reasonable interpretations, at least the more stringent interpretation in Guyana/Suriname, it stands to reason that such an interpretation is difficult to reconcile with the a priori powers of State A to block the consideration of the submission of State B, on the mere ground that the former may be of the view that the area is disputed. Under the threshold applicable in Ghana/Côte d’Ivoire, States are allowed to conduct unilateral activities, including drilling operations, in disputed areas. Such activities may only be considered inconsistent with Article 83(3) in situations where the exercise of any such powers is done in bad faith. Thus, on the one hand, State A is supposedly vested with rights to block the consideration of the submission of neighboring State B with an adjacent or opposite coast, but State A is not prevented from pursuing economic activities, including, as appropriate, drilling operations, in the area in question, even in the area claimed in the submission of State B, This does not appear logical. Yet, if Annex I of RoP would suggest the above, it could rightfully be claimed to reflect the applicable rule. However, a careful reading of Annex I rebuts the proposition that Article 5(a) of Annex I would vest State A in all situations with powers to prevent the CLCS from considering the submission of State B.
Text of Annex I to the RoP
Article 2 of Annex I of the RoP establishes three different categories of disputes. Submitting coastal States are obliged to inform the CLCS of the existence of any such dispute. Article 2 is applicable in regard “a [i] dispute in the delimitation of the continental shelf between opposite and adjacent States, or in other cases of unresolved [ii] land or [iii] maritime disputes, related to the submission”. It is well known that “maritime disputes” are often conceived to relate to Part V and Part VI of UNCLOS. However, Article 2 of Annex I of the RoP makes separate references to continental shelf disputes on the one hand and maritime disputes on the other hand. Accordingly, it is apparent that the concept “maritime dispute” under that particular provision would relate to Part V, only. Accordingly, Article 2 relates to (1) continental shelf delimitation disputes, (2) unresolved land disputes, and (3) unresolved maritime disputes.
The claimed right to block the consideration of any submission is supposedly Article 5(a) of Annex I of the RoP. Under this provision, the CLCS may only consider a submission if no veto is put forward by a neighboring State with opposite or adjacent coast “[i]n cases where a land or maritime dispute exists”. It is a point of fact that there is no reference in Article 5(a) of Annex I of the RoP to disputes concerning the delimitation of the continental shelf. It relies only on two categories of disputes: (1) land disputes, and (2) maritime disputes. Accordingly, Article 5(a) of Annex I differs from Article 2 of Annex I, in so far as the latter provision relies on three categories of disputes. The proposition that “maritime dispute” in Article 5(a) of Annex I of the RoP would cover EEZ and continental shelf disputes pays lip service to the requirement to take into account the “context” in the interpretation of this particular provision, if one were to argue that the textual interpretation or “maritime dispute” in Article 5(a) encapsulates also continental shelf disputes.
Further, under any circumstances, it appears to be a fact, that to interpret Article 5(a) of Annex I of the RoP in a manner to include the expression “continental shelf delimitation” from Article 2 of Annex I would create rights that go beyond UNCLOS, whereas this was not the intention of the meeting of States Parties. This appears explicitly in a note of the UN Legal Counsel, in which it is stated that the RoP “should be in strict conformity with the pertinent provisions of [UNCLOS]”. Notwithstanding the above, nothing would prevent the CLCS from adopting a document, which could be seen to go beyond the scope of the relevant provisions of UNCLOS, provided that the Meeting of States Parties would agree hereto. This is an important detail as the CLCS, prior to the adoption of the RoP, submitted a draft of the RoP for the consideration of the Meeting of States Parties. It followed this procedure because Annex I of the draft RoP “dealt with legal and political problems and other sensitive matters”. It was under no obligation to do so but decided proprio motu accordingly. It is apparent from the records of the Meeting of States Parties that some delegations were of the view that the RoP “should not appear to create new rights for States that are only defined by the Convention”. Accordingly, States Parties did not agree to allow the CLCS to go beyond UNCLOS when endorsing the draft RoP prepared by the CLCS. Yet, vesting States with a right to veto the consideration of a submission in situations where there are land or maritime disputes only, can not have been considered to go beyond the black letter of UNCLOS. The same does not appear to apply to continental shelf delimitation disputes and would in any event constitute a non-contextual interpretation of Article 5(a) of Annex I of the RoP.
Concluding Remarks
Coastal States are obliged to submit data and other information in support of the claimed outer limits to the CLCS. The latter is under a treaty obligation to make recommendations to the submitting State. While such recommendations are vested with some normative characteristics, they are from a juridical standing non-binding. Under these circumstances, it is difficult to accept the proposition that the making of recommendations by the CLCS can prejudice matters relating to delimitation where the submission does not relate to land or maritime disputes, as in Article 5(a) of Annex I. Yet, it is also a fact that in the judgment on merits in Mauritius v Maldives, the Special Chamber seems to have expressed the view that Article 5(a) of Annex I of the RoP should be read to mean that the three categories enumerated in Article 2 of Annex I are incorporated in Article 5(a) of Annex I notwithstanding the latter not embracing continental shelf disputes. Upon having resolved those parts of the dispute that related to land aspects, EEZ aspects and also continental shelf areas within 200 M from the baselines, the Special Chamber observed that it “encourages the Parties to contemplate giving their consent to the CLCS allowing to consider each-other´s submissions” [emphasis added]. However, the above observation of the Special Chamber was an obiter dictum, which must be seen to be given some impact notwithstanding the fact that international courts and tribunals do not stringently distinguish between ratio decidendi and obiter dictum to determine which parts of an international judgment or award constitutes res judicata.
Bjørn Kunoy is a Professor of International Law at the University of the Faroe Islands and an Adjunct Professor of International Law at Georgetown University, Washington DC.