The demonstration of entitlement to outer continental shelf, ie. areas of continental shelf beyond 200 nautical miles (M) distance from the baselines from which the breadth of the territorial sea is measured is to undertaken by fulfilling the procedural obligation under Article 76(8) of the United Nations Convention on the Law of the Sea (UNCLOS). While States Parties 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, notwithstanding the understanding, it appears, that only such outer limits that are based on the recommendations of the CLCS are opposable under international law.<\/p>\n
The CLCS is a treaty body, which under Article 2(1) of Annex II<\/a> to UNCLOS, consists of experts in geology, geophysics or hydrography \u201cwho shall serve in their personal capacities\u201d. Under Article 76(8) of UNCLOS, the CLCS shall make non-binding recommendations. Thus, the non-binding characteristics of the work of the CLCS could suggest that the fulfilment of its task necessarily does not prejudice the delimitation of boundaries. However, Article 9 of Annex II<\/a> obliges the CLCS not to take actions that \u201cprejudice matters relating to the delimitation of boundaries between States with opposite and adjacent coasts\u201d. A fortiori, the proposition can be made that the actions of the CLCS as such can prejudice matters regarding delimitation. The question arises which actions are susceptible to prejudice matters regarding delimitation.<\/p>\n 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<\/a> (RoP) may be invoked by State A with the aim and effect to block the consideration of any submission transmitted under Article 76(8)<\/a> and Annex II<\/a> 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 as with Annex I of the RoP. It will be concluded 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.<\/p>\n Non-Prejudicing Matters Relating to Delimitation<\/strong><\/p>\n Article 76(10) of UNCLOS is a safeguard clause consistent with which \u201c[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\u201d. It indicates on the one hand that the establishment of outer limits of the continental shelf under any of the provisions of Article 76 of UNCLOS and on the other hand the delimitation of continental shelf are two separate matters.<\/p>\n Accordingly, the question arises how non-binding acts of a treaty body regarding the determination, in form of non-binding recommendations, of the seaward extent of entitlement to the outer 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 disallow the CLCS from considering a submission, transmitted in compliance with the procedural obligation in Article 76(8) of UNCLOS to submit relevant data and information to the CLCS, can be seen to undermine the role and purpose of the CLCS. Under Article 3(1)(a) of Annex II<\/a> to UNCLOS, the CLCS \u201cshall [..] consider the data and other material submitted by coastal States [..] and make recommendations\u201d [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 regard to the consideration of the submission of neighboring State(s) questions the object and purpose of the procedural obligation in Article 76(8) of UNCLOS. 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 maritime areas. Accepting the proposition that an invocation by State A of Annex I to the RoP\u00a0 may block the consideration of a submission of State B stands in contrast to the well-established acceptance that either of the same States would be entitled to exercise powers under Article 77 of UNCLOS, notwithstanding the relevant area being disputed.<\/p>\n Disputed Areas<\/strong><\/p>\n Under Article 83(3)<\/a> of UNCLOS, States parties to a delimitation dispute \u201cshall 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\u201d. In Guyana\/Suriname<\/em><\/a>, <\/em>the arbitral tribunal established that a distinction is \u201cto 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\u201d, the latter being permissible by contrast to the former that were considered impermissible. Yet, in Ghana\/C\u00f4te d\u2019Ivoire<\/em><\/a>, 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,<\/em> it stands to reason that such an interpretation is difficult to reconcile with the a priori <\/em>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\/C\u00f4te d\u2019Ivoire<\/em><\/a>, 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 of the RoP 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.<\/p>\n Text of Annex I to the RoP<\/strong><\/p>\n 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 to \u201ca [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<\/a>\u201d. It is well known that \u201cmaritime disputes\u201d 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 \u201cmaritime dispute\u201d 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 latter of which only covers matters under Part V of UNCLOS.<\/p>\n 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 \u201c[i]n cases where a land or maritime dispute exists\u201d. 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 and the former only relies on two categories of disputes. The proposition that \u201cmaritime dispute\u201d 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 \u201ccontext\u201d in the interpretation of this particular provision, if one were to argue that the textual interpretation or \u201cmaritime dispute\u201d in Article 5(a) encapsulates also continental shelf disputes.<\/p>\n 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 \u201ccontinental shelf delimitation\u201d 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, <\/a>in which it is stated that the RoP \u201cshould be in strict conformity with the pertinent provisions of [UNCLOS]\u201d. 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 \u201cdealt with legal and political problems and other sensitive matters<\/a>\u201d. It was under no obligation to do so but decided proprio motu<\/em> accordingly. It is apparent from the records of the Meeting of States Parties that some delegations were of the view that the RoP \u201cshould not appear to create new rights for States that are only defined by the Convention<\/a>\u201d. 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.<\/p>\n Concluding Remarks<\/strong><\/p>\n 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<\/em>, the Special Chamber of ITLOS 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 \u201cencourages<\/em> the Parties to contemplate giving their consent to the CLCS allowing to consider each-other\u00b4s submissions<\/a>\u201d [emphasis added]. However, the above observation of the Special Chamber was an obiter dictum<\/em>. Notwithstanding the fact that international courts and tribunals do not stringently distinguish between ratio decidendi<\/em> and obiter dictum<\/em> to determine which parts of an international judgment or award constitutes res judicata<\/em>, it constitutes in casu<\/em> means to reconsider this question de novo<\/em>.<\/p>\n","protected":false},"excerpt":{"rendered":" The demonstration of entitlement to outer continental shelf, ie. areas of continental shelf beyond 200 nautical miles (M) distance from the baselines from which the breadth of the territorial sea is measured is to undertaken by fulfilling the procedural obligation under Article 76(8) of the United Nations Convention on the Law of the Sea (UNCLOS). […]<\/p>\n","protected":false},"author":37,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[3888,4754],"authors":[7834],"article-categories":[6000],"doi":[],"class_list":["post-26740","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-law-of-the-sea","tag-unclos","authors-bjorn-kunoy","article-categories-article"],"acf":{"subline":""},"meta_box":{"doi":"10.17176\/20251126-141519-0"},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/26740","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/37"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=26740"}],"version-history":[{"count":5,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/26740\/revisions"}],"predecessor-version":[{"id":26800,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/26740\/revisions\/26800"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=26740"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=26740"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=26740"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=26740"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=26740"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=26740"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}